Dear Sophie: Which visa should a startup pursue to hire someone from Mexico?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie:

I work in people ops at a biotech startup. We received an application from a very promising candidate from Mexico for a job opening we’ve had listed for quite some time. Our company has never sponsored anyone for a visa. Which type of visa should we pursue, how much will it cost, how long will it take, and what should we keep in mind while working through the process?

—Puzzled in Petaluma

Dear Puzzled,

Thank you for your question! I’m excited to hear that your startup is looking to sponsor an international professional for the first time!

Professionals who are citizens of either Mexico or Canada may be eligible for a TN (Treaty National) visa. A TN visa holder’s spouse and dependent children are eligible for a TD (Treaty Dependent) visa.

TN and TD visas were created in 1994 thanks to the North American Free Trade Agreement (NAFTA). A new trade deal called the United States-Mexico-Canada Agreement (USMCA) was signed by the three countries in 2018 and will replace NAFTA on July 1, 2020. Given that USMCA will go into effect next month, I recently did a podcast on TN visas for Canadian and Mexican citizens. Rest assured, USMCA keeps TN and TD visas and their requirements in place.

The TN visa is a nonimmigrant (temporary) visa for citizens of Mexico and Canada in certain professions with a bachelor’s or higher degree and an employer sponsor. Although the TN visa can be extended every three years and there’s no limit on the number of times the visa is extended, your company will need to show that this position is temporary, and the TN candidate will have to convince immigration officials that she or he intends to return to Mexico after the temporary job is completed.

The list of eligible professions includes accountants, biologists, chemists, computer systems analysts, economists, engineers, epidemiologists, geneticists, management consultants, mathematicians, physicians, registered nurses, research assistants, scientific and medical lab technicians.

There are several benefits to the TN visa over the popular H-1B visa:

• Some professions are allowed with the TN that would not qualify for an H-1B, such as computer systems analysts.
• There’s no limit on the number of TN visas that can be issued each year like the H-1B.
• The TN offers a relatively quick and easy path to work authorization and can be applied for at any time of year, compared to the H-1B, which requires candidates to register for the annual lottery in March.

To petition for a TN visa on behalf of an individual already in the United States, your company would need to file a Petition for a Nonimmigrant Worker (Form I-129) to U.S. Citizenship and Immigration Services (USCIS). The agency has continued to process applications and petitions throughout the COVID-19 crisis. The filing fee for Form I-129 is $460.

Translation and evaluation services will add additional costs to the application process. Documents should be translated into English by a certified translator. If the individual’s college or university degree is not from an institution in Mexico or the U.S., it can be a good idea to have the degree and transcript assessed for U.S. equivalencies by a credentials evaluation service.

Your company can file for premium processing for Form I-129. With premium processing, eligible visa petitioners can pay a $1,440 fee to have USCIS make a decision on the petition within 15 days. USCIS had temporarily suspended premium processing in March. USCIS recently announced that it will be resuming premium processing for different types of I-129 and I-140 petitions starting this month. Premium processing will go into effect on June 22, 2020 for TN visas.

For candidates currently abroad and not yet in the U.S., there is a different process. Keep in mind that the U.S. embassy and consulates in Mexico and the U.S.-Mexico border remain closed to routine visa and green card interviews — and it’s unclear when things will reopen. Mexican citizens outside the U.S. seeking a TN must apply for a TN visa in their passport at a U.S. consulate. Once U.S. embassies and consulates resume processing routine visas and green cards, it could take a while before a TN candidate can get an appointment unless there is an emergency.

For a visa application in Mexico, the applicant is required to fill out the online DS-160 nonimmigrant visa application form and schedule a visa interview at a U.S. embassy or consulate. After the interview, consular officials will process your application. You can view the estimated wait times for interview appointments based on the embassy or consulate and processing times for visa applications from the State Department.

Once the individual in Mexico receives a TN visa, they can travel to the U.S. The visa will be valid for one year, which means the individual will have to come to the U.S. while it is valid. The immigration officer at the U.S. port of entry should note the TN status in the individual’s passport.

Like the H-1B visa, the TN status can be extended without traveling abroad through the I-129 process with USCIS. However, unlike the H-1B, which is a dual intent visa, TN visas are very difficult to convert to a green card because they are for nonimmigrant intent. Dual intent visas allow their holder to have both nonimmigrant and immigrant intent. Those who hold a dual intent visa can legally maintain their temporary, nonimmigrant status while reserving the ability to apply for an immigrant visa — also known as a green card — sometime in the future. This is why many employers and their attorneys encourage employees to go from TN to H-1B before they are willing to start the green card process.

As always, I recommend hiring an experienced immigration lawyer to help you through the TN process, as well as help your company meet requirements for maintaining immigration documentation and sponsorship status and assess other international job candidates.

Wishing you all the best,

Sophie

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!