CAN I ENTER THE U.S. AS A VISITOR TO SEEK EMPLOYMENT FOR A FUTURE TN VISA?

This is a frequently asked question by individuals interested in TN visas and other U.S. temporary worker visas. The uncertainty over this issue is due partly to the ambiguous nature of the B-1 visa classification. It also may be attributed to the opinion of many U.S. Customs and Border Protection (CBP) officers who believe that conducting an employment search in the U.S. is impermissible under the B-1 visitor classification.

According to U.S. Department of State (DOS) correspondence with the American Immigration Lawyers Association (AILA), “[a]n alien is not necessarily precluded from obtaining a B visa for the purposes of seeking legal employment opportunities in the U.S…such as seeking out potential H-1b employment opportunities.” However, the DOS advises that individuals still have the burden to show that they are eligible for B visa status and so, e.g., may not enter the U.S. with the intent to file for adjustment of status, or fail to maintain a residence outside the U.S. See AILA InfoNet Doc. No. 00112201 (posted Nov. 22, 2000). More on B-1 Visa requirements.

The DOS’ opinion is consistent with other U.S. immigration guidance on the B-1 visa classification, which has found that comparable activities were appropriate for the B-1 visa classification. For example, CBP’s own Inspector’s Field Manual states that an individual may obtain B-1 status to “consult with business associates”, seek “investment in the U.S. which would qualify him or her for E-2 status”, come to the U.S. to open or be employed in a new office branch to qualify for an L-1, or to “observe the conduct of business or other professional or vocational activity.” Inspector's Field Manual Chapter 15.4.

Furthermore, the final rule implementing the U.S.-Canada Free Trade Agreement (the predecessor to NAFTA) specifically stated that while such activity would be inappropriate under TC (now TN visa) status, "[c]ertainly, there are legitimate situations where a visitor to the United States might explore business or employment opportunities..." 54 FR 48575 (Nov. 24, 1989).