NAFTA TN Provisions Coverage: Applicable in Guam?
Question: Do the TN visa provisions apply for Guam (US Territory in Micronesia)? I am a Canadian citizen currently living & working in Saipan (United States Commonwealth of the Northern Mariana Islands) and am considering moving to Guam but am unsure as to whether or not their immigration is the same as US.
Answer: The U.S. immigration benefits provided under NAFTA do not apply to Guam, the Commonwealth of the Northern Mariana Islands, American Samoa and the United States Virgin Islands. As result, Canadian and Mexican citizens may not temporarily work in these areas under TN visa status.
As provided in Annex 201.1 of the North American Free Trade Agreement, the provisions in NAFTA apply to the following areas with respect to the United States:
(i) the customs territory of the United States, which includes the 50 states, the District of Columbia and Puerto Rico,
(ii) the foreign trade zones located in the United States and Puerto Rico, and
(iii) any areas beyond the territorial seas of the United States within which, in accordance with international law and its domestic law, the United States may exercise rights with respect to the seabed and subsoil and their natural resources.
According to an August 24, 1992 legal opinion prepared by Grover Joseph Rees III, General Counsel from the legacy INS, the term “customs territory of the United States” does not include Guam or the Virgin Islands. Rees, CO 1815-C, NAFTA: Effect of Proposed Definition of "Territory" with Respect to the United States (August 24, 1992). This opinion is bolstered by the subsequently issued NAFTA Implementation Cable 010, which provides in full as follows:
The office of the United States trade representatives has confirmed that the terms and coverage under the North American Free Trade Agreement (NAFTA) shall not apply in respect to Guam, the Commonwealth of the Northern Mariana Islands, American Samoa and the United States Virgin Islands. References in NAFTA to a state of the United States shall be deemed to refer also to the District of Columbia and the commonwealth of Puerto Rico.
Accordingly, chapter 16 of NAFTA, temporary entry, should not be applied to citizens of Mexico or Canada seeking entry to Guam, the Northern Mariana Islands, American Samoa, or the United States Virgin Islands.
For general immigration purposes, the United States immigration laws govern continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands. See INA § 101(a)(38). U.S. immigration laws have limited applicability to the Commonwealth of the Northern Mariana Islands.