Unlike the H-1B visa, the TN visa regulations place very little restriction on the wages or compensation given to TN visa workers.
No Wage Requirements
- The TN visa regulations 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). There is no labor attestation, labor certification, or prevailing wage requirement for TN status. INS NAFTA Handbook, pg. 137; 9 FAM 41.53 N. 7.3.
- 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 This requirement was only in force during the first 10 years of NAFTA and is no longer applicable for cases filed after 2004.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).
- 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.
Source of Compensation
- Contrary to the opinion of some U.S. immigration officers, the TN regulations do not place any restriction on the source of a TN visa applicant’s compensation. All the regulations require is that the application describe “[t]he arrangements for remuneration.” 8 C.F.R. § 214.6 (d) (3) (ii). The fact that an applicant will remain on his Canadian or Mexican employer’s payroll does not preclude his/her eligibility for TN visa status.
- For example, in discussing whether a B-1 or TC (the predecessor to the TN) was suitable in cases of indirect remuneration (e.g. as in payment from a foreign entity), the legacy INS stated that the TC could still be appropriate. 54 FR 48575 (Nov. 24, 1989). The legacy INS has also stated that other visa workers could receive compensation from a foreign affiliate. Y. LaFleur, Legacy INS (May 24, 1996).
- USCBP has also stated that a TN visa worker does not need to be on U.S. payroll to qualify for TN status. AILA/CBP Liaison Meeting, AILA Doc # 11080850 (posted Aug. 8, 2011).
Public Charge Issues
- 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.
- Blog Articles - Compensation / Wages
Revised Aug. 21, 2018