Question: I am a Canadian wishing to get a TN visa. From what I read on the internet, the NAFTA states that TN visas are only given to college, seminary or university teachers, but it doesn't specify whether language schools are included in the list as well. Do you think it's possible for me to obtain a TN visa working as an instructor in a language school?
Answer: The TN visa regulations do not provide any additional guidance on the specific type of educational institutions that qualify as a college, seminary or university for purposes of the TN visa category for Teachers. We can look to regulations under other areas of immigration law for some clarification. While these regulations may not necessarily be binding for purposes of a TN visa application, they can help to provide interpretation of terms not otherwise defined under the NAFTA regulations.
The regulations for the F-1 visa category for students describes a college or university as “an institution of higher learning which awards recognized associate, bachelor's, master's, doctorate, or professional degrees.” See 8 C.F.R. § 214.2(f)(6)(ii). The provision then states that “[s]chools which devote themselves exclusively or primarily to vocational, business, or language instruction are not included in the category of colleges or universities.” Based on this regulation, it may be inferred that if the school is devoted exclusively to language instruction and does not issue an associate, bachelor's, master's, doctorate, or professional degree, then the school may not qualify as a college, seminary or university for purposes of the TN visa category for Teachers. The issue is worth looking into more to determine whether the TN visa may be a fit for you here.
Another option may be the H-1B visa. Although there are no H-1B visa numbers available under the current fiscal year, exceptions to the annual cap on H-1B visa numbers may apply in your situation. For example, the H-1B cap does not apply to new H-1B employment with “an institution of higher education.” Now, you’ll have a similar problem here as with the TN to see if the language school qualifies as an institution of higher education. But in the H-1B context, there is an expressed definition of the term “institution of higher education.” Even if the school does not qualify under this exemption, another one exists for H-1B employment with a nonprofit entity related to or affiliated with an institution of higher education. Some schools may qualify for this exemption if they are nonprofit and have a formalized arrangement with a college or university for the placement of student teachers. In the event the TN visa does not offer a solution, there may be an opportunity then under the H-1B visa category.