New Employer, New TN Visa Stamp? Sometimes.

Question: I was granted a TN Visa in a previous job offer but I had to quit working for that company and came back to México. Now I have another opportunity that requires me to go to a training course in the U.S. again. Can I enter the U.S. with the same TN visa? It is valid until March 2009. Otherwise, what should I do?

Reply: Even though your current TN visa stamp has not yet expired, you may not be able to utilize it for admission to the U.S. for your new employer.

A legacy INS Memorandum does provide that H-1B, L, O and P visas are valid for re-entry despite a change in employer.1 See Memo on Visa Validity. Although not expressly provided in the Memo, this visa validity rule should equally apply to TN visas. However, the memo restricts this policy to situations where an individual changes employers while present in the U.S. by filing an I-129 petition. It therefore may not apply to scenarios where an individual has ceased employment, departed the U.S., and now wishes to re-enter based on a new employment opportunity. The best practice here may be to apply for a new TN visa stamp.

You should also consider what visa classification is best suited for your training in the U.S. If you will train and also perform meaningful work in the U.S. and receive a salary from a U.S. source, you should apply for work authorization by filing for another TN visa stamp and applying for admission to the U.S. with the TN visa. Alternatively, if you will only undertake training, will not perform any meaningful employment in the U.S., or receive compensation from a U.S. source, you may qualify for a B-1 business visa.

1. See also 9 FAM 41.53 N9.3-3, which states that "[a]fter changing H-1B employers in accordance with DHS procedures for making such a change, an H-1B visa holder may continue to use his or her original H-1B visa for entry into the U.S." In addition to presenting the original H-1B visa, he or she must also present the new I-797 approval notice evidencing the change of employer.