Canadian Citizens - Entry to the United States Under NAFTA

The North American Free Trade Agreement (NAFTA) is an international treaty between the United States, Canada and Mexico. Its immigration provisions seek to facilitate the flow of business people across our shared international borders. Most notably, NAFTA created the TN nonimmigrant classification, which is available to citizens of Canada and Mexico. NAFTA also provides that Canadian citizens seeking admission to the U.S. in L-1 status may file their I-129 petition directly at any Class A port of entry along the Northern Border.

Since Canadian citizens are visa exempt, they may apply for admission to the U.S. in TN status directly at a port of entry. They may apply either on the northern or the southern border of the United States, or at a U.S. Customs and Border Protection (CBP) preclearance location at an international airport in Canada.

If applying at a land border crossing, the procedure is to make an entry to the U.S. At the primary inspection booth, the applicant should inform the officer that he seeks adjudication of his TN application. He will then be directed to the secondary inspection office usually located to the side of the primary inspection booths. Once in secondary, the applicant will be called when an officer is ready to decide his case. The applicant must then present the application package and answer any questions the officer has.

There is no right to attorney representation at a port of entry. Many constitutional rights are suspended at international border crossings. However, CBP officers may decide, in their discretion and as a courtesy, to permit attorneys to accompany their clients to the border and even to be present during an inspection. In Buffalo, NY, the local members of the American Immigration Lawyers Association (AILA) have a very good working relationship with CBP such that CBP officers allow attorneys to be present in secondary inspection and to clarify any questions regarding the applicants eligibility. But this is always subject to discretion in each case.

If the application is approved, the applicant must pay a $56.00 filing fee and will be issued a multiple-entry I-94 card in his passport which can be issued with a validity period of up to three years. While most I-94s are now automated, CBP still uses paper I-94s at all land border crossings.

For those applying for TN status at Preclearance, they must arrive at the airport well in advance of their flights. Attorneys are not allowed into secondary inspection at airports. Otherwise the inspection process is the same as at the land border, with the exception that a delay in process could cause someone to miss a flight. Also, the filing fee at the airport is only $50 because the $6 I-94 fee is included in the price of the airline ticket.

Citizens of Mexico are not visa-exempt and must apply for TN status directly at a U.S. Consulate in Mexico. A petition is not required but may be filed on behalf of a Mexican citizen.

It should be noted that for those applicants who wish to know in advance whether or not their TN status will be approved, there is an option to file the TN application by mail with USCIS in advance of traveling. If approved, the applicant's U.S. employer will receive an approval notice which the applicant can then present to CBP at the time of admission. Rather than deciding the person's eligibility for TN status, the applicant of a pre-approved TN application should simply be inspected and admitted if otherwise admissible.

It is always possible that a CBP officer could discover derogatory information during the course of the admission process which will lead to refusal of admission in TN status even following pre- approval by mail. However, having the pre-approved application in hand makes it much less likely that one will encounter any problems at the time of entry. The major drawback to filing the TN by mail is that it can take 1-2 months, or sometimes more, to receive an approval unless premium processing is used. Premium processing costs an additional $1225 on top of the $325 filing fee for a TN by mail, and results in a decision (or request for additional evidence) within 15 calendar days. So the applicant has the choice of paying $50 for 1-day processing or $1550 for 15 day processing.

The spouse and children (under age 21 and unmarried) of TN applicants may be accorded TD status. Those in TD status are not authorized to be employed in the U.S. but children may attend school. If a Canadian TN applicant is admitted to the U.S. but his family members are not Canadian citizens, they may still be accorded TD status but need a visa in order to enter the U.S. They cannot apply for TD visas until the principal applicant is accorded TN status. Accompanying family members who are Canadian citizens may apply for admission together with the principal applicant or at a later date and must show the family relationship (through long form marriage or birth certificates) as well as having proof of citizenship. The fee for TD admission is $6 per person.