How to Transition from a TN Visa to H1B Visa

Posted by in Immigrants | Updated on November 15, 2022
At a Glance: In the US, TN visa holders may apply to have their status adjusted to H1B. To apply for H1B status, TN visa holders need to get an LCA sponsored, file a Form I-129, submit the other relevant application documents and enter the H1B lottery.

Each visa has advantages and disadvantages, and a specific type of worker or field of employment that it covers. Sometimes, these fields overlap, and some prospective visa holders have multiple work visas they may be eligible for. Choosing the right visa for your circumstances requires a detailed understanding of the pros and cons of the visas you are eligible for.

This article compares and contrasts TN and H1B visas, then explores the process of transferring from a TN visa to an H1B.

What is a TN Visa?

The TN visa is a nonimmigrant visa category that was created after the passage of Nafta, the trade deal between the US, Canada, and Mexico. TN visa holders are called “Nafta professionals” for this reason. Only Mexican and Canadian citizens are eligible for a TN visa, and you must have a job offer in the U.S. in an employment field that is on the approved Nafta list. If approved for a TN visa you can stay and work in the U.S. for up to 3 years, and your wages are subject to US taxes.

What is an H1B Visa?

The H1B visa is for foreign workers in the U.S. employed in “specialty occupations.” To be eligible for an H1B visa, you must have specialized knowledge in a certain field, typically requiring at least a Bachelor’s degree. H1B applicants need an American employer to sponsor their visa. If the application is approved, it is then submitted to the H1B visa lottery, where a total of 85,000 visas are allotted. H1B visa holders can stay in the U.S. for up to three years, with the possibility of an additional three-year extension.

Differences Between TN Visa and H1B Visa

While the TN and H1B visa are both non-immigrant, employment-based visas, they differ in a few important ways. Any non-US citizen is eligible for the H1B visa, while only Mexican and Canadian citizens are eligible for the TN visa. H1B visas are much more difficult to obtain but allow for dual intent, while TN visas do not. Also, eligibility for a TN visa is restricted to a list of approved occupations, whereas the H1B only requires that the occupation involves Bachelor degree-level skills or knowledge.

Benefits of a TN Visa Over the H1B Visa

There are a number of reasons that you may choose a TN visa over an H1B, even if you have the option of transitioning to an H1B. This section explores some of the advantages of the TN visa.

TN Visa Numerical Limitations

H1B visas are capped, with only 65,000 general petitions and 20,000 Master’s petitions granted visas in the lottery each year. This means that even if your application is approved, you may not get an H1B visa. There is no cap on TN visas, so if your application is approved, you get a visa.

TN Visa Application Process

Applying for a TN visa is much simpler than applying for an H1B. Canadian and Mexican citizens can apply for their TN visa at the port of entry, with only a letter from their employer and proof of citizenship. To apply for an H1B visa, you must be sponsored by an American employer and fill out a Form I-129.

TN Visa Processing Time

Since the application process is much simpler, TN visas are processed much faster than H1B visas. TN visas are processed at the port of entry with no other waiting required. To get an H1B visa, your employer must obtain a labor condition application certification and wait for your petition to be approved by the USCIS, which can take months.

TN Visa Filing Fees

TN visas only require a $50 fee for Canadians and $160 for Mexicans. H1B visas require a number of filing fees, including:

  • I-129 filing fee: $460
  • Data collection and filing fees: $750-$1500
  • Fraud prevention and detection fee: $500

TN Visa Authorized Period of Stay

The TN and H1B visa each permit a stay of up to 3 years. However, a TN visa can be extended an indefinite number of times, so TN visa holders can more easily do things like buying a home. H1B visas can be extended for an additional 3 years once, but after that renewal, the visa holder must leave the U.S. for at least one year.

TN Visa Changing or Extending Status

Both Canadian and Mexican citizens can change or extend their visa status at a port of entry. Changing or extending H1B visa status is more difficult, and can only be done by having your employer file an I-129 petition with the USCIS.

TN Visa Change of Employer

While the TN visa is employer-specific, you are allowed to change your employer at any time at a port of entry or by filing an I-129. If you choose to file an I-129, then you cannot start your new job until it is approved. H1B visa holders can also change employers by filing an I-129, though they do not have the option of changing it at a port of entry.

TN Visa Transfer to a New Job Location

No action is required for TN visa holders to transfer to a new job location since the TN visa is not location specific. H1B visa holders transferring to a new job location must have their employers file an amended I-129.

Benefits of an H1B Visa Over the TN Visa

The TN may be less competitive and simpler to obtain, but there are certain advantages to having an H1B as well. Read on for a few examples.

H1B Visa Citizenship Requirements

A big disadvantage of the TN visa is that only citizens of two countries, Canada and Mexico, are eligible. The H1B visa may be more competitive, but that’s because citizens of any country are eligible for the H1B.

H1B Visa Occupational Opportunities

You are eligible for an H1B visa if you are employed in any occupation that requires a Bachelor’s degree or higher. The TN visa, on the other hand, has a list of only 63 approved work categories. The H1B is not limited to any specific job categories, so you have a better chance of being eligible for the H1B.

H1B Visa Prevailing Wage Requirements

Most work visas, including the H1B, require that the visa holder is paid the prevailing wage of their relevant occupation. The prevailing wage is the minimum wage paid to laborers in this specific field or occupation, as set by a relevant government agency. The TN visa is one of the few visas that does not require the visa holder to get paid the prevailing wage, which can be a big disadvantage for laborers.

H1B Visa Dual Intent

H1B visa holders are allowed to seek permanent residence (a green card) as soon as they enter the country without interfering with their visa status. The TN visa does not allow dual intent, so TN visa holders cannot pursue permanent residence. The opportunity to ultimately become a permanent resident is a big advantage of the H1B visa over the TN.

How to Change from a TN Visa to an H1B Visa

The process of changing from TN visa status to H1B status is essentially the same as applying for an H1B. As a TN visa holder you have not been approved for an H1B in the past, so you have to apply formally for an H1B and enter the H1B lottery.

The easiest way to transfer your visa status is if the employer that sponsored your TN visa also sponsors your H1B visa petition. That way, you can continue working for that employer under the TN visa even if you do not get selected in the H1B lottery. Employers sometimes do this to give their employees an opportunity to obtain permanent residence. You can get sponsored for an H1B by a new employer as well, but keep in mind that you may not get selected in the H1B lottery. There is no guarantee that you will ultimately be able to work for the new employer, so don’t make a firm commitment to leave your current position covered under the TN until you are selected in the H1B lottery.

Take the following steps to transfer your visa status from TN to H1B:

  • Get sponsored for an H1B by an employer with a Labor Condition Application from the Department of Labor
  • Have the employer file a Form I-129 and pay the relevant filing fees on your behalf
  • Submit the relevant documents for your H1B petition to the USCIS
  • Enter and get selected in the H1B visa lottery

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Conclusion

TN status is much easier to obtain and deal with, but transferring to H1B status gives you a path to permanent residence. If you try to change your visa status remember that getting an H1B comes down to chance, and have a plan for not getting selected in the lottery. You can retain your TN status while applying for an H1B, and getting denied for an H1B will not affect your TN status.


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