Is a New TN Visa Required After Corporate Restructuring?

Question: My husband is a Canadian citizen, and working in the US under TN visa status. His company is about to change its name in January 2008. Do we need to file for new TN visa status before that or we can wait until they expire? Does the company name change affect our current visa status at all?

Answer: The NAFTA TN regulations only address the issue of a change in employer or the addition of another employer. Employment with a different or with an additional employer requires the filing of a new TN application. A mere transfer to another location by the same TN employer to perform the same job does not require submission of a new TN application. But a transfer to a separately incorporated subsidiary or affiliate does require the filing for a new TN. See 8 CFR 214.6 (i) (1). The TN regulations do not specifically address the circumstances that arise due to corporate restructuring. There is some ambiguity with respect to whether a change in company name constitutes a change in employer necessitating the filing of a new TN visa application.

We may turn to H-1B regulations and memoranda for further guidance on this issue. Generally, an employer need not file a new petition when the employer is involved in a corporate restructuring such as a merger, acquisition or consolidation, when the new corporate entity succeeds to the interests and obligations of the original employer and where the terms and conditions of employment remain the same but for the identity of the employer. INA 214(c)(10). A new petition is not required when the employer merely changes its name and there are no materials changes in the terms and conditions of the foreign national’s employment. Legacy INS Letter, E. Hernandez, HQ 70/6.2.8 (June 7, 2001).

If there is simply a company name change, then a new TN visa application may not have to be filed. When you file for another TN at the expiration of your I-94, the company should file for the TN under its new name. In the meanwhile, if you must depart the U.S., you may want to obtain a letter from your employer that describes the name change and provides that there has been no change in the terms of employment. If, in addition to the employer name change, there is a material change in the terms of employment, e.g. in job duties, then a new TN visa application should be filed. The application should be submitted prior to the effect of the change in terms of employment.