MINIMUM HOURS / WAGE REQUIREMENTS UNDER TN VISA
Question: How many work hours per week are required to obtain a TN Visa with a part-time job? Is there a minimum wage requirement to prove that the salary can sustain a family?
Reply: The TN visa regulations do not require an individual to work a certain number of hours in order to obtain TN visa status. While the U.S. Department of State has confirmed that an individual may be employed under TN visa status on a part-time basis, it has not indicated any limitations on the extent of this employment. 9 FAM § 41.59 N11.
The TN visa regulations also do not require that a TN visa worker receive a certain salary or wage, or document the ability to financially support a family. The regulations only require that an application for TN visa status document "[t]he arrangements for remuneration for services to be rendered." 8 C.F.R. § 214.6 (d) (3) (ii) (e). The NAFTA Handbook states that there "is no written application, and no prior petition, labor certification, or prior approval" required for Canadian citizens to obtain TN visa status. INS NAFTA Handbook, pg. 137. Employers seeking TN visas for citizens of Mexico were previously required to file labor condition applications with the Department of State confirming that the TN visa worker's salary met certain wage requirements. This requirement was only in force during the first 10 years of NAFTA and is no longer applicable for cases filed after 2004. See USCIS Yates Memo (Jan. 8, 2004); CBP Ahern Memo (Jan. 20, 2004).
This is in contrast to other non-immigrant categories, which have specific wage or financial requirements. For example, the H-1B visa category requires that employers file a Labor Condition Application attesting that they will pay an H-1B employee at a required wage. F-1 students must establish proof of financial support for tuition, living expenses, etc., which may involve the submission of an Affidavit of Support. B-1 visitors may not receive any compensation from a U.S. source.
Although there are no specific wage or financial requirements under the TN visa classification, the general U.S. immigration laws do bar admission to the U.S. of any foreign citizen who “is likely at any time to become a public charge,” i.e. likely to become primarily dependent on the U.S. government for subsistence. INA § 212(a)(4). This issue generally comes up in green card applications based on a family relationship. Here the law requires that the sponsor file an Affidavit of Support that demonstrates that the sponsor can support his or her spouse at a level no less than 125% of the federal poverty income guidelines.
The public charge ground rarely comes up in applications for temporary employment authorization, including those for TN visa status. This is because evidence that an individual qualifies for a particular nonimmigrant classification is generally sufficient to meet the INA § 212(a)(4) public charge requirements. 9 FAM 40.41 N11.1. Extensive inquiry into the public charge issue “should be rare” if an individual otherwise qualifies for the nonimmigrant visa category. 9 FAM 40.41 N11.2. Evidence that an individual qualifies for TN visa status should therefore be sufficient to address any public charge concerns.
If a nonimmigrant application does not indicate adequate provision for support, financial evidence may be requested. 9 FAM 40.41 N11.2. If an applicant for TN visa status is questioned on the public charge ground, establishing that the applicant’s salary meets 125% of the federal poverty income guidelines for his or her household may help alleviate any concerns.
Under other federal or state laws, an employer may be required to pay an employee a certain minimum wage. For example, the Fair Labor Standards Act (“FLSA”) requires that certain employees (generally including non-immigrants) receive at least the federal minimum wage. However, the FLSA exempts professional employees and certain skilled computer professionals from this minimum wage requirement.