The Mexican Advantage

When speaking U.S. immigration, the first thought that comes to mind is that being born in Mexico is a disadvantage. In the immigrant categories, both through family and through employment, Mexican born applicants suffer long periods waiting for their priority dates to be current in order to be able to file for their “green card” applications.

Such disadvantage reverts to an advantage when discussing non-immigrant status, in particular professionals. Mexico is one of the largest suppliers of engineers to the United States, who are now in high demand. The traditional approach to employing foreign professionals in the U.S. is for the American employer (“Petitioner”) to petition U.S. Citizenship and Immigration Services (“USCIS”) for a “specialty occupation” classification for the prospective employee (“Beneficiary”). The employee then applies for a visa at a U.S. Consulate abroad, if necessary. This is commonly referred as the H-1B classification.

The H-1B classification was created for professionals in specialty occupations. According to INA § 214(i)(1) a “specialty occupation” is defined as an occupation that requires “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States”.

H-1Bs are highly regulated. The Immigration Act of 1990 sets a maximum of 85,000 new H-1B “visas” each year, which is referred to as the “quota”. 65,00 of these are to be assigned to individuals with Bachelor’s degrees, while the remaining 20,000 are reserved for those who have obtained their Master’s degrees in the U.S. Every year in April, there is a registration period for prospective Beneficiaries to participate in a lottery in which USCIS selects enough registrations to cover the quota for the following fiscal year. That the availability for theses “visas” is too low for the market’s demands is clear. For fiscal year 2023 (April 2022), USCIS received over 483,000 registrations for the 85,000 quota. For fiscal year 2024, the situation worsened as the April 2023 registration period saw over 780,000 registrations. In short, only about one in ten registrations authorized the employer to file an H-1B petition for a foreign professional employee. Those few who get selected, if approved, get a 3-year authorized stay, renewable up to a maximum of 6 years.

Here is where Mexicans have advantages. The United States—Mexico—Canada Agreement (“USMCA”, formerly NAFTA) allows for easy movement of certain professionals within the three party countries—with conditions, of course. The corresponding classification is commonly known as TN. 8 C.F.R. § 214.6 codifies the classification and Appendix 1603.D.1 to Annex 1603 of the NAFTA lists the professions and requirements for each. Professions are divided into Business, Medical, Scientific, and Teaching occupations. Not all professions are listed, still, the USMCA benefits most Mexican professionals.

Although for Mexicans getting a TN “visa” or classification1 is more cumbersome than for Canadians, who can request the classification at the border, TNs are still far easier to obtain and cheaper to process than H-1Bs. In addition, TNs can be renewed for as long as the individual has employment in the United States. One Caveat is that the TN allows for employment with a specific employer (Petitioner), therefore a new TN is required for a change of employer or concurrent employment different from that with the original Petitioner.

There are two processing alternatives for Mexicans seeking to obtain TNs. If abroad, a Mexican citizen must present a visa application an corresponding documentation at a U.S. consulate –preferably in Mexico–in order to obtain the visa stamp that will allow for admission and employment upon entering the United States. If the individual is already present in the United States either under a TN or another non-immigrant classification, a new or extended TN can be filed with USCIS to extend the stay. In this case, a paper visa will still be necessary for reentry after departure.

In both cases, the Petitioner, in addition to the pertinent forms, needs to present a letter explaining the need and the nature of duties the Mexican national will carry out in the United States, together with proof of its operations and taxes and/or other financials to prove its ability to pay the Beneficiary’s wages for the entirety of the authorized stay. In addition, the Beneficiary will need to present proof of his/her degree and professional license (cédula professional), resume and other proof of experience and education, or other documentation required for the particular profession as listed on Appendix C.

As mentioned above, the classification has some limitations: Not all professions are covered; spouses are not eligible for employment authorization; and after many renewing periods, Customs & Border Patrol (“CBP”) may start questioning the “non-immigrant intent” of the visa holder. Also worth considering is the fact that, while the Beneficiary’s children are under 21 years of age, they cannot work and are considered “out of state” for college tuition; and once they turn 21, they need their own visas.

Finally, I want to dispel the myth that there is no path to Legal Permanent Residence status (“a green card”) for TN-holders. There is, there are just some issues to consider before starting the process.

As with every aspect of immigration law, the devil is in the details. Each Petitioner is different and so is every Beneficiary; therefore, an immigration lawyer is an essential partner to help foresee issues and minimize risks. Keep his/her card handy.