Background

When the North American Free Trade Agreement ("NAFTA") was implemented on January 1, 1994, the Canada-U.S. Free Trade Agreement ("FTA") was superceded. The Trade Canada (TC") category for Canadian professionals which existed under the FTA was therefore eliminated. However, under NAFTA Canadian professionals are now eligible for Trade NAFTA ("TN") status. Under TN status, Canadian citizens in certain professions may enter the United States to work for a U.S. company on a temporary basis. Eligible professionals may also work for Canadian companies in the United States.

Individuals who are nearing the end of the six year limit of stay under H-1B status (professional non-immigrants) or the five to seven year limit under L-1 status (non-immigrant intra-company transferees) may immediately qualify for TN status without having fulfilled the one year abroad requirement which normally applies to those visas, provided they otherwise meet the requirements of the TN category.

Eligible Professions

In order to qualify for TN status, the intended U.S. activity must be in a profession listed in Appendix 1603.D.1 of NAFTA and the applicant must possess the required credentials to be considered a professional. The requirements for each of these categories appear in Appendix 1603.D.1. The list of TN professionals at Appendix 1603.D.1 is almost identical to the list of TC professionals contained in Schedule 2 of the former FTA. The changes resulting from NAFTA which affect Canadian nationals are as follows: (a) Quebec notaries are considered equivalent to other lawyers, (b) the occupation of mathematician includes statisticians, (c) oceanographers are included within the occupation of physicist, and geographers are included under the occupation of urban planner.

In most but not all of the listed professions, a Baccalaureate (bachelor's) degree or better is usually required (the term "Licenciatura" should be disregarded since it refers to the Mexican equivalent of a bachelor's degree.) Although not specifically stated in Appendix 1603.D.1, the INS expects the degree to be clearly relevant to the proposed position. In other words, an alien with a bachelor degree in English will usually not qualify as a computer systems analyst. However, an alien with a mathematics degree should be able to qualify for TN status as a computer systems analyst, since it can usually be shown that systems analysis requires the application of mathematics principles. Similarly, an alien with an accounting degree should be able to seek TN status as a computer systems analyst if the proposed position involves designing accounting applications.

The list of eligible professions also includes occupations which do not necessarily require a bachelor's degree as a minimum requirement. Some professions require a post-secondary diploma plus several years of experience. The term "Post Secondary Diploma" means a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada or the United States. The term "Post Secondary Certificate" should be ignored, since it refers to Mexico's equivalent of a Post Secondary Diploma. As in the case of an alien's formal education, if work experience is required it must be shown to be relevant to the proposed position.

Some of the more complex TN cases are discussed below:

Scientific Technician

A business person under his category must possess: (a) theoretical knowledge in any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics, and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to based or applied research. A scientific technician does not general have a baccalaureate degree.

In a recent INS memo dated November 7, 2002 from Johnny N. Williams (Executive Associate Commissioner, Office of Field Operations) to all Regional Directors, the INS has amended the Inspector's Field Manual ("IFM") in relation to scientific technicians. According to IFM §15.5(f)(2)(A), the following guidelines are now applicable:

1. Individuals for whom scientific technicians/technologists wish to provide direct support must qualify as professional in their own right in one of the following fields: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.
2. A general offer of employment by such a professional is not sufficient, by itself, to qualify for admission as a Scientific Technician or Technologist ("ST/T"). The offer must demonstrate that the work of the ST/T will be inter-related with that of the supervisory professional. That is the work of the ST/T must be managed, coordinated, and reviewed by the professional supervisor, and must also provide input into the supervisory professional's own work.
3. The ST/Ts theoretical knowledge should have been acquired through the successful completion of at least two years of training in a relevant educational program. Such training may be documented by presentation of a diploma, certificate, or a transcript accompanied by evidence of relevant work experience.
4. U.S. authorities will rely on the Department of Labor's Occupational Outlook Handbook to establish whether proposed job functions are consistent with those of a scientific or engineering technician or technologist. ST/Ts should not be admitted to perform job functions that are primarily associated with other job titles.
5. Not admissible as ST/Ts are persons intending to do work that is normally done by the construction trades (welders, boiler makers, carpenters, electricians, etc.) even where these trades are specialized to a particular industry (e.g. aircraft, power distributions, etc.)

The amended IFM now requires that the work of the ST/T must be managed, coordinated, and reviewed by the professional supervisor, and must also provide input into the supervisory professional's own work. Although previously many INS officers were lenient in relation to the degree in which the professional supervisor had to control the ST/T, the wording of the current guidance suggests that professional supervisor's control over the ST/T must be considerably stronger than in the past.

The amended IFM also now requires that the ST/T possess theoretical knowledge gained through at least two years of training in a relevant educational program. Previously, there was no specific minimum educational requirement. However, as a result of this amendment, ST/Ts will require at least two years of relevant education. It is unclear from the language whether this education must be gained through a two year diploma program or whether an applicant may qualify based on two one-year certificates in a relevant field.

Medical Laboratory Technician

A business person in this category must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic or bacteriological tests and analyses for diagnosis, treatment, or prevention of diseases. This limitation appears as a footnote to Appendix 1603.D.1 and also in the IFM.

The requirement that the alien perform laboratory tests in specific fields suggests that other medical technicians such as ultrasound technicians or ECG technicians may not qualify. However, such adjudications will be made on a case-by-case basis.

Physicians

Appendix 1603.D.1 clearly indicates that physicians may only enter for the purposes of teaching or research. It does not include direct patient care. Notwithstanding this fact, the INS permits patient care that is clearly incidental to teaching or research activities. According to the Inspectors Field Manual ("IFM"), patient care is incidental when it is casually incurred in conjunction with the physician's teaching or research. To determine if the patient care will incidental, factors such as the amount of time spent in patient care relative to teaching and/or research, whether the physician receives compensation for such services, whether the salary offer is so substantial in teaching and/or research that direct patient care is unlikely, or whether the physician will have a regular patient load, should be considered by the officer.

Other Health Care Workers

According to INA §212(a)(5)(C), aliens (other than physicians) who seek to work in the health care field are now excludable. The Department of State and the INS have both indicated that the term "health-care worker" in the legislation includes a nurse, physical therapist, occupational therapist, speech-language pathologist, medical technologist and technician, physician assistant and other occupations.

Notwithstanding this ground of exclusion, the INS is granting blanket one-year nonimmigrant waivers of inadmissibility for these health care workers, which are granted at the same time as the TN. Although such health care workers are ineligible for permanent residence without additional credentialing (to date, credentialing organizations have been designated for only nurses and physical therapists), they may still seek TN status.

Disaster Relief Insurance Claims Adjusters

According to the IFM, such a professional must now submit documentation that there is a declared disaster event by the President of the United States, or a state statute, or a local ordinance, or an event at a site which has been assigned a catastrophe serial number by the Property Claims Service of the American Insurance Services Group, or, if property damage exceeds $5 million and represents a significant number of claims, by an association of insurance companies representing at least 15 percent of the property casualty market in the U.S. This represents a substantial change in previous INS policy.

Management Consultants

According to the IFM, management consultants provide services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity's goals, objectives, policies, strategies, administration, organization, and operation. Management consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. They may be salaried employees of the U.S. entities to which they are providing services only when they are not assuming existing positions or filling newly created positions. As a salaried employee of such a U.S. entity, they may only fill supernumerary temporary positions. On the other hand, if the employer is a U.S. management consulting firm, the employee may be coming temporarily to fill a permanent position. This is a restatement of the guidance contained in the old Operations Instructions, which have now been superceded by the IFM.

Computer Systems Analysts

According to the IFM, the computer systems analyst category does not include programmers. A systems analyst is an information specialist who analyzes how data processing can be applied to the specific needs of users and who designs and implements computer-based processing systems. Systems analysts study the organization itself to identify its information needs and design computer systems which meet those needs. Although the systems analyst will do some programming, the TN category has not been expanded to include programmers. Although many ports-of-entry previously made a distinction between systems analysts and programmers, the IFM now makes it clear that programmers are ineligible for TN status as systems analysts.

Hotel Managers

According to the IFM, hotel managers must now possess a bachelor's degree in hotel or restaurant management. A post secondary diploma in hotel or restaurant management plus 3 years of experience in the field will also qualify.

In the author's opinion, this IFM provision does not make sense. It appears to disqualify even an alien who possesses bachelor's degree in a related business field, unless the degree is specifically in hotel or restaurant management. For example, even an alien with an MBA in marketing would be disqualified from this option. This represents a substantial change in previous INS policy.

Use of Work Experience Equivalency in TN Applications

Although it is possible under the H-1B category to establish equivalency to a bachelor's degree by showing a combination of experience and education, under the TN category, an applicant who does not have such a degree cannot show such equivalency. However, it is still possible to show that a foreign degree is equivalent to a Canadian or U.S. degree in order to qualify for TN status. Where licensure is required, the applicant must show licensure in the state in which he or she intends to work.

Self-Employment Prohibited

NAFTA now expressly prohibits the establishment of a business or practice in the United States in which the professional will be self-employed. Some INS officers took the position that an alien who was hired by a U.S. corporation in which he or she held an ownership interest was actually engaged in self-employment. Other INS officer took this position only if the ownership interest gave the alien control of the corporation. The issue at least appears to be settled as a result of regulations issued by the INS. The phrase "engage in business activities at a professional level" is defined at 8 CFR §214.6(b) as follows:

[T]he performance of prearranged business activities for a United States entity, including an individual. It does not authorize the establishment of a business or practice in the United States in which the professional will be, in substance, self-employed. A professional will be deemed to be self-employed if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner. [Emphasis added.]

It would appear as though, as long as the alien is not the sole or controlling shareholder or owner of the business, he or she will not be "self-employed" for the purposes of TN eligibility.

Work Stoppage or Labor Dispute Bars TN Elgibility

If the Department of Labor certifies that the proposed place of employment of the TN applicant is the subject of a work stoppage or labor dispute involving a work stoppage and the temporary entry of an alien may adversely affect either the settlement of the dispute or the employment of a person involved in the dispute, the application may be refused.

Place of Application

A TN professional may make an initial application for TN status at a Class A port of entry or pre-flight inspection station. The current INS regulations suggest that an alien already in the United States under some other status may not seek a change of status to TN; they must instead seek TN status at a port of entry or pre-flight inspection station. According to 8 CFR §214.6(i)(2), a Canadian citizen already admitted in TN status may file a petition with the Nebraska Service Center to change to another TN employer or add an additional TN employer. However, it makes no reference to changes of status from a category other than TN. The Nebraska Service Center has previously denied such petitions (at least in some cases) on the basis of 8 CFR §214.6(i)(2).

Maximum Period of Stay

The maximum initial period of stay that may be granted for a TN professional is one year. A TN professional may request extensions of stay for one-year increments with no fixed limit on the number of extensions that may be given. Extensions of stay for TN status must be filed with the Nebraska Service Center. However, the TN professional may also renew his or her status by re-applying at a Class A port of entry.

In contrast with the H-1 and L-1 categories, there is no fixed limit on how long a TN professional may remain in the United States under such status. However, some ports-of-entry impose arbitrary limits based on their improper interpretation of 8 CFR §214.6(b), which defines "temporary entry" as follows:

Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.

Shortly after the regulations were implemented, INS Headquarters verbally informed the author that this definition was not intended to change the status quo. Nevertheless, several INS officers began applying a restrictive interpretation of this definition. Some concluded that an unabandoned foreign residence was now required. Others demanded proof that the position would terminate at some fixed date in the future. Certain INS officers also began arbitrarily denying TN renewals or readmission to aliens who had held TN status for a specific period of time (an aggregate period of three to five years, depending upon the port-of-entry.) In the author's opinion, these interpretations are extreme.

TN professionals must already show that they do not have immigrant intent, as a result of INA §214(b). The definition of "temporary entry" is clearly based on the principles contained therein. The existence of this definition should not have resulted in a change in the adjudication of nonimmigrant intent.

There is no specific requirement that TN professionals maintain an unabandoned foreign residence to establish that they entry is temporary. Other categories such as B-1/B-2, J-1, and F-1 require evidence of an unabandoned foreign residence, but this requirement specifically appears in the INA. No such statutory requirement exists for TN professionals.

Fortunately, several ports-of-entry are still reasonable with regard to the issue of temporary entry. In the absence of evidence that the alien has immigrant intent, such ports-of-entry will conclude that the alien is in fact seeking temporary entry.

Dual Intent Not Recognized for TN Status

The recognition of "dual intent" essentially means that the alien is permitted to simultaneously have a present intention to work temporarily in the United States and a future intention to become a permanent resident. Although the concept of dual intent was effectively recognized for Trade Canada ("TC") workers under the Canada-US Free Trade Agreement ("CFTA"), appears to have changed with the implementation of NAFTA.

INA 214(e)(2) now provides that the TN category is to be treated as a regular admission class under §101(a)(15) of the Immigration and Nationality Act ("INA"). It is therefore subject to the same restrictions as other nonimmigrant categories. Because INA §214(b) creates a rebuttable presumption of immigrant intent for all nonimmigrants other than those in the H-1 or L categories, the concept of dual intent is not specifically recognized for TN professionals. Please refer to the article on dual intent for additional information.

In any event, Canadian TN professionals must clearly satisfy the immigration officer that they have bona fide nonimmigrant intent whenever they seek admission to the United States. The fact that a TN professional is the beneficiary of an application for labor certification or petition for permanent residence may be given significant weight when immigrant intent is assessed. While this does not necessarily constitute conclusive proof of immigrant intent, overcoming the presumption of immigrant intent in such cases can be a difficult task.

A 1996 letter from Yvonne LaFleur, Chief of the Business and Trade Branch at the INS’ Benefits Division, suggested that a TN professional could still have bona fide nonimmigrant intent even where they were the beneficiary of an approved immigrant petition, where they were seeking consular processing rather than adjustment of status. This was not intended to be a binding opinion. Initially, many (but not all) ports of entry followed this guidance. However, in recent years many ports of entry are now disregarding it.

TN professionals who are concerned about immigrant intent problems may also wish to consider changing their status from TN to H-1B (assuming that they are also eligible for that category) before seeking permanent residence. In many cases, this precaution will not be necessary. However, this is one way to eliminate the potential problem of immigrant intent.