Annual numerical visa limit or “cap”
There is an annual numerical limit to the number of H-1B visas that are available each fiscal year. That limit is 65,000 H-1B visas per year, plus another 20,000 H-1B visas for people who have a US master degree or higher. Since there is such a high demand for H-1B visas, not everyone who wants one will get one. Careful planning and timing may be necessary in order to secure one of the available visas. Conversely, the TN visa has no numerical limit, and the applicant does not need to be concerned about whether a visa will be available during a given fiscal year.
Timing issues with the H-1B
One downside to the H-1B is that there are timing issues involved when filing a petition for new H-1B employment. Due to the H-1B annual visa cap, new visa numbers become available at the start of each new fiscal year, which is October 1. Therefore, new H-1B workers normally must wait until October 1 to begin work. Furthermore, the USCIS will not accept an H-1B petition is filed more than six months prior to the indicated starting date of employment. This means that the floodgates open on April 1 each year when there is a mad dash to file petitions. This is because April 1 is the first day the USCIS will accept petitions for the new annual visa numbers. The entire annual number of visas is normally used up rather quickly. When there are more petitions filed than there are visas available, the USCIS will hold a lottery to decide who gets the remaining numbers.
Length of stay
The maximum length of stay allowed for H-1B visa status is six years, with some exceptions. Generally, once the six years is up, the person will be required to leave the United States for at least one year before being allowed to apply for another H-1B visa. The TN visa status is good for a maximum of three years, and may be extended in three-year increments. Unlike the H-1B, there is no limit to the number of TN extensions.
Nonimmigrant vs. dual intent
The TN visa is a nonimmigrant visa that requires nonimmigrant intent. This means that the person must intend to use the TN visa to come to the United States for a temporary period of time and then depart. The TN applicant must not have the intention of getting a green card or otherwise staying permanently. Once a green card petition is filed, the TN visa cannot normally be extended, so problems will arise if green card status is not available before the TN expires. The H-1B is also a nonimmigrant visa but it allows the person to have “dual intent,” which means the person may be a nonimmigrant and still have immigrant intent. This means the H-1B worker can file a green card application and still travel abroad and apply for visa extensions.
The occupational classifications allowed for TN visa professionals are limited to those specifically listed in the NAFTA treaty. Yet, the occupations allowed for H-1B professionals are those that meet the definition of “specialty occupation,” which is a much longer list. Therefore, a foreign national’s professional occupation may not qualify for the TN, and the person would be better off applying for the H-1B so long as the occupation qualifies as a specialty occupation. Also, if the person’s education, license, or experience does not meet the specific requirements listed in NAFTA, the H-1B may be appropriate if the person has a bachelor degree or equivalent experience.
Department of Labor requirements
In order to file an H-1B petition, a labor condition application (LCA) must first be approved by the US Department of Labor (DOL). The purpose of the LCA is to ensure that the employer will pay the person at least the prevailing wage or actual wage, whichever is higher, for that occupation in the metropolitan statistical location of the work site. The TN does not have this requirement.
If the person is employed by a company in Canada or Mexico, and seeks to come to the United States to provide professional services for a US company, the person is not permitted to do so with the H-1B. The H-1B visa requires that the person be a direct employee of the petitioning US company, not a contracted worker. Yet, this is an entirely proper purpose for the TN visa, and in this case the TN visa would be appropriate.
Another issue is whether or not the person has, or can obtain, a state license in the US to practice his/her profession if one is required, such as with a doctor or lawyer. The H-1B requires the person to have a state license to be eligible for the visa. But, the TN does not require a state license and leaves that enforcement up to the state authorities.