TN visa status is granted to either Canadian or Mexican nationals, authorizing them to perform professional-level work in designated USMCA professions for US employers or US clients. One requirement for receiving TN visa status is that you must be working inside the United States. We discuss the physical presence requirement for a TN visa here.
Prearranged, Professional Level, Business Activities
According to the Foreign Affairs Manual, 9 FAM 402.17-2, “[The] TN visa allows citizens of Canada and Mexico, as USMCA professionals, to work [IN]the United States in prearranged, professional level, business activities for U.S. or foreign employers.”
What does working “in” the United States mean? Does this mean you have to be physically present inside the United States for the duration of your TN visa? Can you travel while you have a TN visa? Can you work remotely on a TN Visa? There are many other questions about how much time you must spend inside the United States while on a TN Visa.
How does the FAM define “physical presence”?
Although the FAM does not provide a specific “physical presence” requirement for the TN visa by listing how many days you must be inside the United States while on a TN Visa, it does explain what meets this requirement. 9 FAM 402.17-5(A)(5) Employment it states:
(5) If a TN visa applicant intends to reside temporarily in the United States but will work primarily in Mexico or Canada, you must consider whether the applicant’s primary purpose of travel to the United States is to engage in professional employment for a U.S. entity, or instead whether that professional employment is merely incidental to the applicant’s primary purpose of residing in the United States.
Suppose you intend to obtain TN visa status to live in the United States, with no need to be physically present to work for a US client or US employer. In that case, this will not meet the physical presence requirement as you do not need to be physically present inside the United States to provide professional-level services.
9 FAM 402.17-5(A)(6) Employment goes on to say:
(6) The same guidance would hold true for employees intending to telework. If there is a legitimate business need for the employee to telework from a location within the United States, this would be allowable in TN status. However, because eligibility for TN status is based on the primary location of the business, a TN visa applicant would not be allowed to reside in the United States and telework to a location in a foreign country for the convenience of the employee.
“Telework,” or remote work, is allowed as long as there is a legitimate business need for the employee to work from a physical location WITHIN the United States. Suppose the work can be performed remotely from outside the United States, or the employee obtains TN status and performs work remotely for a client or employer outside the United States. In that case, this does not meet the physical presence requirement for a TN Visa. There must be an actual need for the employee to be physically present inside the United States to provide professional-level work under a USMCA profession.
Is there a physical presence requirement for a TN visa?
In short, yes. Under the FAM, the employee must be physically present inside the United States to qualify for TN visa status. If the duties do not require the employee to be physically present inside the United States, the position does not qualify for TN visa status. There must be a verifiable need for the employee to be inside the United States.
How long must I be physically in the United States on a TN visa?
While the FAM indicates a physical presence requirement for TN visa status, it does not provide a number of days or duration of time to maintain it. This requirement can vary depending on the profession and the duties. For example, a management consulting firm servicing US clients may only need to make client visits a few days per month, while an accountant may need to be in the office every day of the week.
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