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 of the requirements for receiving TN visa status is that you must be working inside the United States. We discuss the physical presence requirement for TN visa status 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.”
To meet the requirement for prearranged, professional-level, business activities, there must be a requirement for work to be performed physically inside the United States. The work cannot be performed 100% remotely with no requirement to be physically present inside the United States.
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 present 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.
If your intention is to obtain TN visa status to simply live inside the United States, with no actual need to be physically present to perform work for a US client or US employer, this will not meet the physical presence requirement as there is no actual need for you to be physically present inside the United States to provide professional level services.
9 FAM 402.17-5(A)(6) Employemnt 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. If the work can be performed completely 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, 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. There is a requirement under the FAM to be physically present inside the United States to qualify for TN visa status. If the duties to be performed 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 do I need to be physically present inside the United States while on a TN visa?
While the FAM clearly indicates a physical presence requirement for TN visa status, it does not provide a number of days or duration of time needed to maintain or qualify for TN visa status. The physical presence requirement varies based on the duties to be performed inside the United States. For example, a management consulting servicing US clients may only need to make client visits a few days per month, while the position of a dentist would require full-time presence at the employer location to perform the required duties. If there is NO requirement to be physically present inside the United States, the position will NOT meet the minimum requirements for TN visa status under the FAM.
Are you allowed to “telework” on a TN visa?
TN Visa Professions & Occupations List
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