Although subject to far less restrictions than other nonimmigrant visa classifications like the H-1B visa, the immigration laws do place some conditions on the TN visa classification. Some of the main restrictions are described below.
Maintenance of TN Visa Status
Under the U.S. immigration laws, a nonimmigrant who fails to maintain his/her nonimmigrant status may be removed (i.e. deported) from the U.S. INA § 237 (a) (1) (C) (i).
A TN visa worker who fails to perform the activities outlined in his/her application for the specified employer is considered not maintaining status, and can be subject to removal. 65 FR 79320, 79322 (Dec. 19, 2000). Such an individual could also be ineligible for a petition requesting an extension of status or a change of status. Id.
Subject to certain conditions, a TN visa worker involved in a strike or labor dispute involving a work stoppage may not be deemed to be failing to maintain his/her status. 8 CFR § 214.6 (k) (2).
TN visa workers must file and obtain a new TN employment authorization in order to work for a different employer, or for an additional employer. 8 CFR § 214.6 (h) (2). Engaging in unauthorized employment constitutes a failure to maintain status. 8 CFR § 214.1 (e).
Departure or Corrective Measures Required Upon Termination
When an individual's employment terminates in the United States, he/she is no longer maintaining status. See Matter of Lee, 11 I. & N. Dec. 601 (BIA 1966). Previously, there was no grace period in this scenario. See INS Letter, E. Hernandez (March 2001).
Effective Jan. 2017, a TN visa worker who fails to maintain his/her status solely due to a "cessation" of employment may be allowed a 60-day grace period or up until the expiration date of his/her I-94 record, whichever comes first. 81 FR 82398 (Nov. 2016). A TN visa worker may apply for a new TN, file for a change of status, or otherwise make preparations to depart the U.S. during this grace period. Individuals cannot work during the grace period.
A TN visa worker is eligible for this grace period during each period of his/her approved TN petition/application, i.e. one time for each TN status approval. TN visa workers can be eligible for another grace period upon obtaining a subsequent TN visa petition/application approval. Family members holding TD visa status are also eligible for this grace period.
Any days available for a grace period “must be used consecutively, and unused days may not be used later in the same authorized validity period or carried over into a subsequent validity period.” 81 FR 82398, 82438 (Nov. 2016).
The grace period applies even for voluntary terminations of employment: “DHS seeks to enhance worker mobility and ease the burdens nonimmigrant workers face when employment ends, either voluntarily or as a result of being laid off or terminated.” 81 FR 82398, 82466.
It is important to note that any grace period is discretionary. It is not a guarantee. If a TN visa worker applies for a new TN visa or a change of status during any grace period, U.S. immigration could shorten the grace period or refuse to grant the grace period if, e.g. evidence indicates that the TN visa worker violated his/her status, engaged in unauthorized employment during the grace period, committed fraud, was convicted of a crime, etc. 81 FR 82398, 82439 (Nov. 2016)
A TN visa worker must depart the U.S. or take other corrective measures prior to the effective date of his/her employment termination, or if applicable, prior to the expiration of his/her grace period or I-94 expiration, whichever comes first.
As an alternative to departing the U.S., a TN visa worker could file an I-129 petition for a change of employer, or an application to change status to another non-immigrant visa classification. However, such an application generally must be filed by the effective date of his/her employment termination or within any grace period, if applicable. Otherwise, the application can be denied.
Remaining in the U.S. after the effective termination date of employment or applicable grace period is considered a violation that may lead to removal, or negatively impact future immigration applications including TN visa applications.
Expiration of TN Status
Unless an extension application has been filed, a TN visa worker may not continue to work or remain in the U.S. after his/her period of TN authorized stay has expired. A TN visa worker’s period of authorized stay is indicated either on an I-94 record or passport admission stamp.
Remaining in the U.S. after the expiration of one’s period of authorized stay can result in severe repercussions, and can negatively impact future immigration applications including TN visa applications.
The main penalties are:
If detected by U.S. immigration officers, the individual could also be placed in removal proceedings and if removed from the U.S. may be barred from returning to the U.S. for 10 years. INA 212 (a) (9) (A) (ii) (I).
If an individual over-stays for more than 180 days, an individual could be subject to a 3-year bar to the U.S. INA 212 (a) (9) (B) (i) (I). An individual who over-stays for more than 1 year can be subject to a 10-year bar to the U.S. INA 212 (a) (9) (B) (i) (II).
Citizens of Mexico who remain in the U.S. past their period of authorized stay will have their TN visa stamps automatically voided. INA § 222 (g).
If an employer continues to employ an individual past his/her TN visa status expiration, the employer can be subject to civil penalties and even criminal prosecution.
Remaining in the U.S. after the expiration date of one's TN status can also be considered a negative factor by an immigration officer when assessing whether the individual meets the temporary entry requirements during a subsequent application for TN visa status.
No Self-Employment Permitted
An individual cannot obtain TN visa status for a company that he/she solely owns. 8 CFR § 214.6 (b). An individual also cannot obtain TN visa status for a company in which he/she is the controlling shareholder. Id.
In assessing whether an applicant substantially controls a business, U.S. immigration officers consider the following factors: (i) Whether the applicant has established the receiving enterprise; (ii) Whether, as a matter of fact, the applicant has sole or primary control of the U.S. enterprise (regardless of the applicant’s actual percentage of share ownership); (iii) Whether the applicant is the sole or primary owner of the business; and (iv) Whether the applicant is the sole or primary recipient of income of the business. Inspector’s Field Manual § 15.5(f)(1)(E).