TN VISA WORKERS: IS NOW THE TIME TO CONSIDER FILING AN H-1B VISA PETITION?

January 19, 2019 Brian D. Zuccaro

The H-1B visa filing window (April 1, 2018) is fast approaching. While the H-1B visa classification has faced heightened scrutiny under the Trump administration (as with many other aspects of U.S. immigration including the TN visa), the H-1B visa may still offer some advantages to current TN visa workers. Additionally, it may be beneficial to obtain an H-1B visa now before any further restrictions are placed on the H-1B visa classification by the administration.

Who should consider filing an H-1B visa petition?

TN visa workers who have faced repeated scrutiny – most often by USCBP – over whether their job qualifies within a TN occupational category. The H-1B visa classification is not restricted to 63 occupational categories like the TN visa classification, but instead provides work authorization for a broader group of “specialty occupations”.
TN visa workers who have been questioned over how their credentials qualify for their TN occupational category. Under the H-1B visa classification it is possible to combine education and experience to secure an opinion that an individual has a degree more closely aligned to his/her field. This is not permissible under the TN visa classification.
TN visa workers seeking U.S. permanent residence (a green card). While it may be possible to pursue a green card while under TN visa status, it is a more nuanced process compared to that under H-1B visa status, which specifically allows for “dual intent”. Risk averse individuals may be more comfortable pursuing a green card under H-1B status, which is considered a more conservative approach.
TN visa workers concerned over the viability of the TN visa classification. While under attack by the Trump administration, the H-1B visa is not facing an existential crisis like the TN visa may be facing. If the Trump administration decides to withdraw from NAFTA, that could mean the end of the TN visa classification. (Such a withdrawal, which may require Congressional approval, could take several years to execute, and would likely be delayed significantly and possibly thwarted by court challenges.)