Canadians and Mexicans Eligible for TN and TD Visa Status despite J-1 Two-Year Home Residency Requirement.

Unless an individual first resides in his or her home country for two years, or obtains a waiver of the residence requirement, an individual subject to the J-1 Visa two-year home residency requirement pursuant to INA 212 (e) is prohibited from:

(i) Applying for an immigrant visa;

(ii) Applying for a nonimmigrant visa as a temporary worker (H-1B) or as an intra-company transferee (L-1); or

(iii) Obtaining permanent residence status.

However, Canadian and Mexican citizens who are J-1 exchange visitors subject to the two-year home residency requirement may still apply for TN and/or TD visa status despite not fulfilling the residency requirement or obtaining a waiver. 9 FAM 41.59 N14.

For example, a foreign physician subject to the two-year home residency requirement may still apply for a TN as a Physician without fulfilling the two-year residence requirement or applying for a waiver.

Even though Canadian and Mexican citizens subject to the two-year foreign residence requirement can still obtain TN or TD visa status, they cannot obtain their TN/TD status by applying for a change of status using Forms I-129 / I-539. Individuals subject to the J-1 two-year residency rule are not eligilbe to file a change of status petition. 8 C.F.R. § 248.2. 

Thus, applicants subject to the J-1 two-year rule must obtain their TN / TD at the border (if Canadian) or at the U.S. consulate (if Mexican).