DOES AN EMPLOYER HAVE TO NOTIFY THE GOV WHEN TERMINATING A TN VISA WORKER?

Question: I have a question that has come up a lot lately: how does a Petitioner withdraw TN sponsorship where the person applied at the border?    

Reply: Before we address how a petitioner withdraws its TN sponsorship, we should first assess whether there is such a requirement in the first place.

Generally, the issue of withdrawal comes up as result of the termination of a foreign worker’s employment with the petitioner. The obligation of the employer to notify U.S. immigration authorities of the termination of its foreign worker is more commonly known within the H-1B visa context. It is less clear as to whether such an obligation exists for employers of TN visa workers. If we look at the history of the TN visa regulations (8 CFR 214.6), we will see that TN visa petitioners were required to notify U.S. immigration authorities following the termination of a TN visa worker, but are no longer required to do so.

The predecessor agreement to NAFTA, the United States-Canada Free-Trade Agreement (FTA), which provided work authorization only for Canadian citizens, did not place any obligation on the petitioner to notify U.S. immigration authorities that it no longer employed the foreign worker. See 54 Federal Register 12 (Jan. 3, 1989); 8 CFR 214.6 (Jan. 1, 1991). This changed following the implementation of NAFTA, which provided work authorization for both citizens of Canada and Mexico. The rules implementing NAFTA substantially modified sub-section (d) of 8 CFR 214.6 and included a new paragraph (d) (5), which placed an affirmative obligation on the petitioner to notify U.S. immigration authorities when it no longer employed the TN visa worker: “If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition.” See 58 FR 69205, 69214 (Dec. 30, 1993); and 8 CFR 214.6 (d) (5) (1998).

In 2004, U.S. immigration authorities issued a rule that eliminated the numerical cap placed on the number of TN visas it would issue annually to citizens of Mexico. 69 FR 11287 (March 10, 2004). This rule also eliminated the initial I-129 petition requirement and the corresponding labor condition application requirement for citizens of Mexico. In doing so, U.S. immigration revised 8 CFR 214.6 deleting paragraph (d) (5) and its notification requirement in its entirety. The revision essentially reverted sub-section (d) to its original form under the FTA. Ever since this change in 2004, the regulations have not required a TN petitioner to notify U.S. immigration authorities that it no longer employed a TN visa worker. See, e.g., 8 CFR 214.6 (d) (2005).

Based on its absence in the FTA, its inception during the implementation of NAFTA, and its removal following the elimination of the initial I-129 petition requirement for Mexicans, we may conclude that the purpose of the notification requirement of paragraph (d) (5) related in some manner to INS’ management or tracking of I-129 petitions granted for Mexican citizens. Once the I-129 petition requirement for Mexican citizens was eliminated, so was the requirement for petitioners to notify the government of its termination of TN visa workers.