Should TN Visa Workers Consider The H-1B Visa?
The H-1B registration window is fast approaching. Expected to begin in early March, attorneys are already reaching out to HR teams to assemble their lists of potential H-1B candidates. Despite some recent changes, the H-1B visa program may still provide benefits to TN visa workers. Additionally, with uncertainty surrounding the viability of the USMCA, the H-1B may serve as a lifeline for TN workers.
Overview of the H-1B Visa:
The H-1B visa program provides temporary work authorization for a variety of professional occupations beyond what is available under the TN visa classification.
An employer must pay an H-1B worker a “required wage” based on the occupational classification, job requirements, and area of employment. The employer generally must cover all costs associated with an H-1B filing.
The government limits the number of H-1Bs issued each year (65,000). An additional 20,000 visas are available for individuals with a U.S. Master’s degree or higher.
If the government receives more petitions than visa numbers available, USCIS holds a lottery.
Registration is usually the first few weeks of March. If selected under the lottery , petitions are filed in April. Those approved will have a start date of October 1st.
An individual may work in the U.S. under H-1B status for a total of 6 years.
An individual’s H-1B status may be extended beyond the 6-year limit based on a pending employer-sponsored green card application.
Recent H-1B Visa Changes:
Instead of a random selection, USCIS' new lottery process now uses a weighted selection system based on wage levels where higher-paid applicants will receive more lottery entries.
While there is a new $100,000 filing fee for H-1B petitions filed after Sept. 2025, this fee does not apply to H-1B petitions requesting a change of status. This means that the $100,000 fee does NOT apply to employers filing H-1B petitions for individuals currently in the U.S., e.g. TN visa workers - as long as these workers are maintaining their visa status.
Who Should Consider An H-1B Visa?
1. TN Visa Workers Concerned About The USMCA
The USMCA provides the legal basis for the TN visa classification, and is up for review in June 2026.
The parties have 3 options: extend the current agreement for 16 years, extend it for 10 years with a review required annually, or terminate the agreement.
What happens to existing TNs in the event of termination? Uncertain.
One scenario could be that TN visa workers would be allowed to continue working until their status expires.
Another could be the implementation of a sunset provision where all TN work permits are extinguished at some later date.
Applying for an H-1B, which exists independently of the USMCA, would provide an alternative means of work authorization should the USMCA be terminated.
2. TN Visa Workers With Atypical Cases
Individuals who have obtained a TN, but faced difficulty during adjudication or who have an atypical case (e.g. job title / education disparity with the TN occupation, or sales / managerial / executive roles).
These types of cases can be subject to scrutiny and revoked during subsequent travel, or denied during an application for a change of employer or renewal.
The H-1B can offer greater flexibility provided one can show the job qualifies as a specialty occupation.
3. TN Visa Workers Seeking Green Cards
Individuals who want to apply for U.S. permanent residence (green card) will have a smoother path with an H-1B.
While it is possible to obtain a green card while under TN visa status, the H-1B visa classification eliminates many of the potential issues that may arise in the TN to green card context, e.g. questions over intent, travel bars, inability to change TN employers or to extend TN status / work authorization.
Given the current risks of having an expired I-94 record during the green card process, which could happen in the TN context, the H-1B is the better option since it can be extended without issue during the green card process.
If you have any questions about USCIS’ new H-1B visa lottery process rule, or want to discuss how to change from TN to H-1B visa status, please contact our office.