I'm Peter Roberts, immigration attorney, who does work for YC and startups. AMA

I'm a Canadian software developer who'd like to join an American startup so naturally I've been applying to a bunch of jobs. More specifically, I'm looking to go with TN visa.

In most job applications, I need to answer the two following questions 1) Are you legally authorized to work in the US? and 2) Will you now or in the future require sponsorship? I'm looking for advice on how I should be answering these questions.

For example, I believe I should technically be answering NO to 1) and YES to 2), but I'm slightly unsure about this.

I've heard recently that some Canadians actually recommend answering YES to 1) as getting a TN visa is very simple and not too much harder than just hiring an American. The idea is that when you answer NO to 1) that recruiters (and especially startups who are often more naive about visas) will lump you in as being hard to hire like immigrants who come to the US on the H1B and then filter out your application.

As for question 2), because the TN is a "Nonimmigrant" visa, does this technically mean I can answer NO here?

Basically in summary, how would you recommend I answer these questions? I don't want my applications to get auto filtered, but I'd also like to be as honest as possible.

Legally, the correct answers are No and Yes.

Hi, I just spent 2 months interviewing and hiring candidates for 4 open (remote) eng positions at a US startup. Answering "Yes" to 1 when you don't have a green card or US citizenship would be a way to guarantee that I would rescind your offer and make a mental note to never trust you. I don't think you should do that.

We actually hired some Canadian talent -- we just used an EOR in Canada. The EOR cost us about $600 a month per head as their cut, but it was worth it to get the excellent developers we have through that deal.

The reason why some/many firms would filter out anyone saying NO to (1) is that getting a visa sponsored requires significant work of a specialized nature and our company certainly is not equipped to do that because we don't have people who have the time and skills to deal with the insane demands of our government to obtain the necessary document (This is not a new or partisan issue btw, I remember losing a great developer in the Obama years due to the feds giving her the run-around).

> Answering "Yes" to 1 when you don't have a green card or US citizenship would be a way to guarantee that I would rescind your offer

This might actually violate EEOC. You would discriminating on the basis on nationality. The question that was asked was "Are you legally authorized to work in the US?" and Canadian have a limited legal right to work in the US under NAFTA.

They're not allowed to work unless they have TN status. I agree with the OP that replying YES is dishonest.

TN is not a visa and all you need to get this status is a job offer. There's really no work of any specialized nature but some companies do get legal advice to help streamline the process and get better outcomes like reducing the probability that the person would be denied.

(EDIT: it is sometimes referred to a visa and sometimes as a status but at any rate as someone who had TN status with two different US startups there was very little process around it)

The question is usually understood to mean "on an ongoing basis" and it's essentially lying. The system may not be correct or kind, but I'd have a lot of trouble trusting someone whose response to "the system isn't fair" is "I'll lie to get around it and achieve the outcome I believe is right" enough to hire him.

> Answering "Yes" to 1 when you don't have a green card or US citizenship would be a way to guarantee that I would rescind your offer and make a mental note to never trust you.

I wouldn't trust you either. The question is ambiguous when it comes to NAFTA and applicants are worried about being filtered out despite not needing visa sponsorship. TN is not a visa it's a status based on a free trade agreement.

I could see that, but given that jobs are all at-will it's hard to argue the employer would have any damages for a contract that can be terminated with literally zero notice.

That's really interesting. Can you expand on why those are the correct answers?

Can you expand on that? TN does not require sponsorship even though most companies do agree to pay an immigration firm to help the applicant.

Ugh, arguing over the simple meaning of factual statements on the Internet is my biggest pet peeve. If you don't have an appropriate work visa, permanent residency or citizenship, and you answer yes to the question of "Are you legally authorized to work in the US", you are just a liar, plain and simple.

> This might actually violate EEOC. You would discriminating on the basis on nationality.

This is laughably incorrect, and a good example of why you should get legal advice from lawyers instead of Internet forums.

If those are remote positions, why do you care about any of this at all? Make it clear that the applicant needs to handle taxation in their home country themselves, and that’s that. I know many software engineers working remotely for companies outside their home country. One would typically set up an LLC or equivalent, and be employed by that.

Any options agreement would be with the private individual to not mess up the cap table.

Brief reading of reddit posts by people who actually did this almost always included that the company's lawyers wrote them letters and prepared packets of materials for them to provide CBP. We don't have any lawyers. We're simply not employing people who don't have green cards. We don't have time or money to play games with the government.

One important thing in seeking TN status is that the title of degree matters immensely to your employability, which goes entirely against what I stand for, as if you have a degree in economics or no degree but do a great job of writing code, I'd want to hire you. The law contains vagaries and there is a "memo" which suggests that they use common sense, but it's all up to a random border guard who might not know any of that to interpret everything.

Anyway, you're not automatically legally allowed to work in the US and lying about it won't help. We can agree to disagree on whether we "should" deal with all that stuff or if we're missing out, but lying to get halfway in the door is the worst way to change an employer's mind, especially in this economy when plenty of domestic candidates are available.

> If you don't have an appropriate work visa, permanent residency or citizenship

Well, TN is none of those, and here I am authorized to work legally. If I apply for another job elsewhere, the honest answer to this question is yes, despite the fact that I will be required to get a new TN.

I think It's not sponsorship in terms of what you hear about for h1b. But if you need a "Job Offer" before getting a TN (as someone upthread mentioned) that itself is a form of sponsorship, since you still need something from that company before you can work.

I agree with you about the dishonesty of saying yes (as I replied in another comment).

That said this is a choice you're making from what sounds like more religious reasons. Your company and your choice but it's not hard to employ TNs in a startup (and I know because I had TN status with two startups so I'm a little ahead of "brief reading of reddit posts").

TN status can also be applied for in advance by the way, doesn't have to be at the border. This wasn't an option when I had TN status but now it is.

While I was only speaking in hypotheticals about companies that only want to hire people who have legal status (no one has asked us to help them get TN status), I'd rather do zero paperwork by hiring people with existing status, than (allegedly) "not hard" work to support TN hopefuls, especially given the US government is liable these days to randomly change things around and cause chaos - especially in areas likely to score political points like immigration. POTUS could declare tomorrow that every TN (in a certain industry? state? whatever) has to go home in 10 days.

My attitude would certainly change though, if/when we can't find skilled people with existing work authorization, or if I had an incredibly strong personal referral.

Most employment is at will, but salaried employees usually have specified severance in case of termination for convenience. Misrepresenting qualifications does in fact create a case for damages unless the employee is literally perfect. But civil aside, and ethics aside, it is fraud and could conceivably be prosecuted accordingly.

Why do you think the TN is not a work visa? The US State Department website literally refers to it as "the TN visa", https://travel.state.gov/content/travel/en/us-visas/employme... :

> The nonimmigrant USMCA Professional (TN) visa allows eligible citizens of Canada and Mexico to work in the United States as USMCA professionals in prearranged professional level business activities for U.S. or foreign employers.

The US State Department literally calls it a visa, I'd trust them before I trust random Internet commenters: https://travel.state.gov/content/travel/en/us-visas/employme...

Well, if you read through your link, you'll understand what parent comment is talking about.

> Requirements for Canadian Citizens

> A visa is not required for a Canadian citizen entering the United States as a USMCA Professional, although a visa can be issued to a qualified Canadian TN visa applicant upon application at a U.S. embassy or consulate.

> A Canadian citizen can apply for TN nonimmigrant status at a U.S. port-of-entry. Learn about these requirements on the U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) websites. More information about receiving TN status without applying for a visa is also available on the U.S. Embassy Ottawa website.

I edited my reply because it is sometimes referred to as both. But hey, can't rob you of the joy of correcting someone on the Internet.

https://www.uscis.gov/working-in-the-united-states/temporary...

"If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate.

You may establish eligibility for TN classification at the time you seek admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. You must provide the following documentation to the CBP officer:"

"You may be eligible for TN nonimmigrant status, if:

    You are a citizen of Canada or Mexico;
    Your profession qualifies under the regulations;
    The position in the United States requires a NAFTA professional;
    You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment - see documentation required below); and
    You have the qualifications to practice in the profession in question."

"If a CBP officer finds you eligible for admission, you will be admitted as a TN nonimmigrant. "

The main point is this has none of the process usually related to "visas" and even if that term is sometimes used along with "TN status" it's its own special thing. Canadians don't need a Visa to visit the US and I am not a lawyer. Mexicans might be in a slightly different situation. Either way, the proper legal answer has no influence whatsoever on the points being made.

Wow, you're real proud of not understanding what a TN visa is or how to do the most basic of HR functions.

You’re doing anyone you don't give a job a favor.

When I looked at working in America several years ago, many people I spoke to and people commenting about it on Reddit/HN/Blind emphasized that it's TN status, not TN visa. They even suggested that calling it a visa when trying to enter the US could get your application rejected. I'm not sure if things have changed since then but if so there's probably lots of people who heard that same advice in the past and haven't learned the updated info.

Thanks Peter for your answer. I’ll be sure to apply this advice going forward.

With that being said, from seeing the replies to my original question, would you mind expanding on your answer a little more? I’m sure many of the other commenters in this thread would appreciate some more clarity here.

Visa and status are different things and exist simultaneously. A visa is used to cross the border, a status is what enables one to be in the country. Many people on H1B don't have a physical H1B visa either as they have "adjusted status" from some other status to H1B without leaving the country and hence cannot possibly have a visa, which can only be issued in a US consulate, which don't exist in the US per se.

Colloquially people refer to a status granted through a particular visa category as "visa" e.g. "I am studying on F-1 visa", "H-1B visa employees" etc.

I mean you are clearly not prioritizing talent, and that's fine. Does not change the fact TN is really simple.

You’ve now been informed by an immigration lawyer that that is not an honest answer, so were you to answer “yes” you’d be demonstrating you’re either willfully ignorant or dishonest.

EEOC is based on national origin not nationality.

I am a Canadian working in the US on TN status too (and yes, despite my opinion on it they call it a “status” not a “visa”). I can’t emphasize enough how light of a burden it is on employers to hire a Canadian on TN status. There’s no limit on the number of people who can come in, and it’s issued literally as you travel across the border.

The paperwork is very basic. It’s essentially just a letter signed by the employer that describes what you will be doing. I put it together myself, but an immigration lawyer can help you with it for a couple of hundred dollars if you need it. It’s issued at the border, you just tell the immigration/border guard that you’re getting a TN, then you go into the office, they review the paperwork and put a stamp on your passport. It took about 20 minutes when I did it in Toronto a couple of weeks ago.

TN visa is not guaranteed anymore. I had to refile twice before getting approved, and I switched to an L1B to do so.

You guys are talking about two similar and related but different things.

TN is both a "nonimmigrant classification" and a visa. The TN nonimmigrant classification is what is what grants a Canadian citizen eligibility to enter into the U.S. without a visa. A TN visa also grants a Canadian citizen entry into the U.S., and is required for TN nonimmigrants to enter with family members. In a nutshell, you establish your TN classification at your port of entry with (a) proof of Canadian citizenship, (b) letter from employer or prospective employer, and (c) any required credential and fees. You can acquire a TN visa the same way, or (recommended) at a U.S. consulate or embassy prior to your trip, and the primary difference is that the TN visa takes a little more time and paperwork.

Prior to this administration, TN status was a simple and short process; we had dozens of Canadian employees visiting the U.S. every week. However, the current administration does not believe in following established laws, so our legal counsel has been advising us to apply for TN visas for Canadian employees visiting the U.S prior to their trips to avoid any surprises at the border.

Note: Mexican citizens don't get TN nonimmigrant classification status. They must apply for the TN visa at a U.S. consulate or embassy in Mexico prior to their departure for the U.S. They must then apply for admission (aka, a visa) into the U.S. again when they actually arrive (basically, they need a TN visa to get a visa. It is as ridiculous as it sounds.)

Being pedantic, the authorized admission into a country is a visa.

TN status is a special thing. A TN visa is just a non-immigrant visa given to a TN-eligible Canadian or Mexican citizen.

Canadian citizens don't need to receive a visa prior to their departure for the U.S.; they can get a form of "visa on arrival" through their TN classification. Mexican citizens need to get a TN visa in order to be eligible to get a visa on arrival when they arrive.

He won’t answer the question from a strategic perspective. He will answer only from a legal standpoint. That’s the only perspective he is an expert in.