The TN visa, a vital component of the United States-Mexico-Canada Agreement (USMCA), comes with a pivotal requirement for Canadian and Mexican professionals: the necessity of physical presence in the United States. This article delves into the specifics of this stipulation, its implications, and how it shapes the professional engagement of TN visa holders.
The Necessity of Prearranged, Professional-Level Business Activities
According to the Foreign Affairs Manual (FAM) 9 FAM 402.17-2, TN visa holders are required to engage in prearranged, professional-level business activities on U.S. soil. The primary emphasis is on the non-remote nature of work, mandating the physical presence of the professional within the U.S.
Understanding FAM’s Perspective on “Physical Presence”
The FAM does not specify a minimum number of days to satisfy the physical presence condition under the TN visa. Instead, it focuses on the core purpose of the professional’s travel to the U.S., which should be to engage in employment for a U.S. entity as elaborated in 9 FAM 402.17-5(A)(5) – Employment.
Criteria for “Telework” Under TN Visa
Telecommuting or remote work is permissible under TN status only if there is a legitimate business requirement that necessitates the professional’s presence in the U.S. If the professional’s role can be conducted remotely from outside the U.S., or if they engage in remote work for a non-U.S. client or employer post obtaining TN status, they fail to meet the physical presence requirement.
Deciphering the Physical Presence Mandate
To be eligible for TN visa status, the role must demand the professional’s physical presence in the U.S., aligning with the FAM’s guidelines. The FAM’s lack of a specific duration or number of days criteria implies that the physical presence requirement varies based on the professional’s role in the U.S.
For instance, while a management consultant may need to visit U.S. clients sporadically, a healthcare professional like a dentist requires a consistent full-time presence at their place of employment.
The TN visa’s physical presence requirement is a crucial factor determining eligibility for Canadian and Mexican professionals under the USMCA. Professionals must be physically present in the U.S. to perform their duties, and roles not requiring such presence do not qualify for TN visa status. Understanding and adhering to these stipulations is key for professionals seeking to work in the U.S. under the TN visa category.