Changing Status From a TN Visa to an H-1B Visa

Basic Definitions

Citizens of Canada and Mexico have the ability, in certain cases, to work in the United States using a special visa category known as the Trade NAFTA (TN) nonimmigrant visa. Under this visa classification, Mexican and Canadian citizens may live and work in the United States on an indefinite basis. They must, however, work in a profession approved by the U.S.-Mexico-Canada (USMCA) agreement – previously known as the North American Free Trade Agreement (NAFTA) – and they must renew their visa once every 3 years. 

The H-1B visa, by contrast, is available to any qualifying candidate – not just citizens of certain countries – and is meant for workers with a minimum of a bachelor's degree (or equivalent) who have specialized knowledge in a given domain. H-1B candidates – like TN visa applicants – must already have a job offer in place, but unlike its TN counterpart, the H-1B visa cannot be renewed ad infinitum. The beneficiary (another word for visa holder) can only renew their visa once after 3 years, and at the 6 year mark, they must, in most cases, leave the United States and reapply.

In this guide, we will show how a visa holder can switch from the TN visa to the H-1B visa. For our purposes, we will focus on the H-1B Specialty Occupation visa, leaving aside the Department of Defense and fashion model subtypes. Here are the topics we'll cover:

1. Compare and Contrast

2. Fees for H-1B Visa

3. Change-of-Status Process

4. Closing Remarks

Compare and Contrast

We’ve already seen that these visas differ in terms of their renewability and their basic eligibility requirements. In this section, we’ll weigh the pros and cons of each category. 

TN Benefits

Below, we’ll review some of the strengths of the TN visa classification.

Location Transfer

While H-1B visa holders have to go through a whole amendment process to transfer to a different part of the country, their TN counterparts do not. They can simply transfer to a new position without much hassle. This freedom of movement is a big plus for TN visa holders.

Visa Caps

Perhaps the biggest constraint of the H-1B category is the annual visa cap. Each year, the U.S. government only accepts a total of 85,000 H-1B visa applicants – 65,000 of which go to regular H-1B applicants with a bachelor’s degree (or equivalent) and 20,000 of which go to applicants with a master’s degree or higher. So even if the applicant meets all the eligibility criteria, they are still subject to the chance operations of the U.S. immigration system. TN visa applicants, for their part, need not worry about rolling the proverbial dice.

Application Processes

It’s far easier to apply for a TN visa than for an H-1B. Citizens of Canada can apply for a TN visa at the port of entry, as long as they bring with them the appropriate fees, their job offer, an evaluation of their credentials (if necessary), and proof of citizenship. Mexican citizens, for their part, must go to a U.S. embassy or consulate to apply for a visa. H-1B applicants, by contrast, have to submit themselves to a lottery system and extensive wait times.

H-1B Benefits

In this section, we’ll discuss several major benefits of the H-1B visa classification.

Dependents

While both categories allow dependents to travel with the primary visa holder, only an H-1B (or, more accurately, H-4) spouse can apply for a work permit (officially known as “Employment Authorization Documents” or EADs). And once they have an EAD, they can work for any legally sanctioned employer in the United States. Spouses of TN beneficiaries (or TD spouses) can’t obtain work permits and thus can’t work in the United States under this classification.

Wage Protections

The H-1B has the added benefit of a certain kind of wage protection. That is, in order to hire somebody using an H-1B visa, an employer must promise, among other things, to pay at least the “prevailing wage” for that particular job in that particular part of the country. 

Using the Online Wage Library (OWL), as suggested by the U.S. Department of Labor, we can find the prevailing wage for a large number of occupations. A computer systems analyst living in San Francisco, for instance, makes an average of $63.29 per hour – or $131,643 per year. To their detriment, the TN visa holder is not protected in this way.

Available Jobs

The H-1B has a broader scope than the TN. While the latter is limited to a list of 63 (or so) occupations, the H-1B visa is meant for any job considered to be a specialty occupation. What’s a specialty occupation? It’s a job that requires at least a bachelor’s degree (or equivalent) and a specialized knowledge base. That could describe any number of occupations in any number of fields.

Dual vs Single Intent

The H-1B is a dual intent visa, which means beneficiaries are allowed to apply for a green card upon arrival in the United States. Put another way, they are permitted to have two intentions when applying for the H-1B: to fulfill their duties as an H-1B beneficiary and to become a permanent resident. The TN, by contrast, is a single intent visa, which prohibits beneficiaries from transitioning to a green card immediately after their admission into the country. 

Note: TN visa holders may be able to change their status to permanent resident, if they abide by the 90-day rule.

Fees for H-1B Visa

Before diving into the timeline and application process, let’s review the relevant fees. 

Note: All H-1B application fees must be paid by the employer sponsor.

Change-of-Status Process

Every year, on the 1st business day of April, U.S. Citizenship and Immigration Services (USCIS) opens the H-1B lottery cycle and closes it – sometimes several days later – when they reach the 85,000 visa cap. In this section, we’ll go step-by-step through the H-1B visa application process. 

Note: The TN visa holder seeking an H-1B change of status may want to have their current employer file a petition on their behalf. This might give them some sense of security knowing that, if the lottery falls through, they still have a job through their TN status.

1. Submit Labor Condition Application (LCA)

The process begins well before April. The employer must electronically submit the LCA to the Labor Department within 6 months of the employment start date. By submitting an application, the employer agrees to: 

• Maintain working conditions such that other U.S. workers will not suffer as a result of this hiring 

• Send notice of the LCA to a labor representative or directly to the workplace 

• Pay adequate wages 

• Ensure that there isn’t a work stoppage in effect

The Labor Department says it takes about 7 days to review applications for basic errors. 

Note: Employers without access to the internet and those with disabilities are exempt from having to file electronically.

2. Submit Form I-129

The employer must now fill out and submit Form I-129 (officially called the “Petition for a Nonimmigrant Worker”) together with the approved LCA, making sure to send it to the right address.

Important: To sufficiently complete the nonimmigrant petition, the employer (who is most often the petitioner) will need to provide evidence that the beneficiary has maintained their TN status prior to the submission of Form I-129. The petitioner will also need to include other materials as well, including: 

• Documents substantiating the prospective employee’s qualifications

• A copy of the employment contract or a description of any verbal agreements

• A copy of any requisite certifications, licenses, or diplomas (where needed)

• Documents demonstrating that the job in question is actually a “specialty occupation”

At the time of writing, an H-1B change-of-status petition takes about 2.5 months to process at the California Service Center. You can check up-to-date processing times on the USCIS website. For $2,500, petitioners can opt for premium processing, which diminishes the processing time to just 15 days.

3. Wait for H-1B Status to Activate

Once the initial petition is approved, the beneficiary just needs to wait for their status to kick in, assuming they’re still in the country. Once their H-1B visa status is active, they can get to work.

4. Apply for Visa (if necessary)

If, for some reason, they’re outside the United States, they might have to apply for a visa at the nearest U.S. embassy or consulate. Note that the application process will vary depending on the embassy, but in general, the applicant must fill out Form DS-160 (officially referred to as the “Online Nonimmigrant Visa Application”), print the confirmation page, supply photos that meet the State Department’s requirements, and pay any required fees. They must then schedule and attend an interview, making sure to bring:

• Form DS-160, specifically the confirmation page

• Fee receipts

• The receipt number for the approved Form I-129

• Photos (if they didn’t upload properly when filling out the online application)

• Passport

Closing Remarks

Whether you’re in the United States on a TN or an H-1B visa, you’ll likely face credit-related issues – if you haven’t already. Sadly, your credit history doesn’t come with you to the United States, making it very difficult to get a phone, rent an apartment, get a loan, or apply for a credit card. 

Nova Credit can help you transfer your credit history from Mexico (or Canada) to the United States. With access to your credit history, you can more easily apply for basic amenities requiring a credit check – like phones or credit cards. Not only do we work closely with credit bureaus in Mexico and Canada, we also coordinate with countries like Australia, the U.K., Brazil, India, South Korea, and Nigeria, and more. Reach out today to get started.

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