Ask the Labor Lawyer: Canadian Employees & US Employers

2/22/2022 by Laura

Question:  What do Canadians need to work in the U.S.?  And what do U.S. employers need to employ Canadians?

Response:  American employers must verify identity and work authorization for every new hire.  This is done using Form I-9.  So the short answer is, Canadians must present acceptable work authorization documents in order to work in the U.S. for a U.S. employer – they must be able to fill out Form I-9.

There are many different ways for foreign nationals to get work authorization documents.  Since I am a Labor Lawyer, I am going to focus on the legal ways.  The good news is that it is easier for Canadian citizens to obtain work authorization versus citizens of other countries.  This is due to the North American Free Trade Agreement (NAFTA).

Under NAFTA, Canadians who work in certain professions can request TN nonimmigrant status, which comes with work authorization.  You can do this in advance by filing Form 1-129 with the U.S. Citizenship and Immigration Services (USCIS), or you can do it while crossing the border at certain ports of entry.  You will need to provide (1) proof of Canadian citizenship; (2) a letter from your prospective employer documenting the full-time job offer; (3) proof of credentials; and (4) any applicable fees.  

The TN classification is called “non-immigrant,” because the expectation is that you will retain your ties to Canada, and return to Canada after your job ends.  With TN classification, you can work in the U.S. up to 3 years, and then apply for an extension.  Your dependents (spouse and children under 21) may also join you under their own classification, called TD.  They will not have work authorization, but they are allowed to study.

Note that TN status is only available for certain professional job positions, and the applicant must have a bachelor’s degree or other documented credentials.  There are about 60 eligible professions, listed in the federal regulations at 8 CFR 214.6.  The job positions include engineer, lawyer, pharmacist, scientist, teacher, and many others.  You will need an appropriate job offer in advance of applying for TN status.

The TN classification is the simplest way for Canadians to obtain legal work authorization in the U.S.  If your situation does not qualify for the TN classification, there are other classifications which also provide work authorization.  These are more complex, so I would encourage you to consult with a trusted immigration attorney about those options.

Finally, you could also consider establishing your own business in Canada, and providing services to U.S. companies remotely.  If this is a possibility for you, I encourage you to consult with Canadian legal and tax professionals to make sure that you are in compliance with Canadian laws.  

May freedom reign across the continent,

Laura, the Labor Lawyer

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send to [email protected]  Such questions may be used for general edification in this column.