The U.S., Canada and Mexico signed the North American Free Trade Agreement (“NAFTA”) to promote and support trade between those countries. In addition to eliminating tariffs and other non-trade barriers, NAFTA provides for facilitated border crossing between signatory countries by business people who are citizens of those countries.
B-1 Business Visitors
The B-1 business visitor category for Canadian and Mexican citizens under NAFTA is significantly broader than it is for foreign nationals from other countries. The permissible NAFTA B-1 occupations include marketing, sales, transporting goods or passengers to or from the United States, and after-sales support personnel, as well as many other professions. The complete list of occupations can be found at Appendix 1603.A.1 to Annex 1603 of NAFTA as well as the USCIS regulations at 8 C.F.R. 214.2(b)(4). As with B-1s for all foreign nationals, Canadians and Mexicans entering in B-1 status are precluded from receiving remuneration from a U.S. source, and are required to depart the U.S. at the conclusion of their short-term trip. If the Customs and Border Protection (CBP) officer believes that the applicant plans to stay longer than the time required to conduct their business, the application for admission may be denied.
Canadian citizen seeking status as a visitor for business may apply for admission at a Port of Entry without first obtaining a nonimmigrant visa. A Mexican citizen seeking status as a visitor for business may only apply for admission after obtaining a B-1/B-2 nonimmigrant visa or Border Crossing Card (BCC or “laser visa”) at a U.S. Consulate in Mexico.
Professional Trade NAFTA (TN)
NAFTA “TN” status is reserved for citizens of Canada and Mexico seeking to enter the United States to perform services in one of the professions listed in Appendix 1603.D.1 to Annex 1603 of NAFTA, which are also available in the USCIS regulations at 8 C.F.R. §214.6. Although TN status is similar to H-1B status in that it is available to professionals entering the United States to work for a specific employer at a professional level. There are several important differences that distinguish TNs from H-1Bs.
TNs Not Subject to Annual Cap
Unlike H-1Bs, TNs are not subject to an annual cap, and there is no limit to the number of Canadians or Mexicans who may be admitted in TN status. TN status can provide a useful alternative when the annual H-1B cap has been reached.
Prevailing wage and other DOL Requirements do not Apply to TNs
Unlike H-1B status, an employer of a person in TN status is not required to meet prevailing wage requirements, or comply with LCA requirements and restrictions. Although TNs from Mexico were initially subject to such requirements, the provision of the NAFTA treaty calling for them sunseted in 2003.
“Dual Intent” Does Not Apply
Another important difference between TN and H-1B status is that TN status is not a “dual intent” status, meaning an applicant for a TN admission must be entering solely for a temporary period (nonimmigrant intent), and must not harbor a desire to seek permanent residency while here (immigrant intent). While some ports of entry are more flexible on this than others, the statute and regulations prohibit dual intent. This prohibition has been reaffirmed in recent official DHS policy.
Indefinite Time Limit
Unlike H-1B status, there is no maximum time limit for TN workers. However, because TN status is predicated on a temporary position in the United States and is not a dual intent status, an individual who has been present in the U.S. for more than a couple years, may face difficulties when reapplying for readmission in TN status. For this reason, TN status is usually not a viable long-term strategy for employing foreign nationals.
TN Status Does not Require Petition with USCIS
Applicants for TN status from Canada may apply directly at a Class A port of entry, or pre-flight inspection facility without prior approval from the USCIS. Mexicans may apply directly by submitting a visa application at a U.S. embassy or consulate in Mexico. Although avoiding the petition process has obvious advantages, it also has certain disadvantages. Adjudications by Customs and Border Protection (CBP) officers at the port-of-entry or pre-flight inspection facilities are often more arbitrary than those handled by the USCIS, and an adverse decision normally cannot by reviewed by a court. Applicants also do not have a right to an attorney when applying at the border.
Professions Covered Differ from H-1B
Perhaps the most important difference between TN and H-1B statuses, is the scope of occupations that each includes. H-1Bs are for “specialty occupations” which generally means occupations requiring a bachelor’s degree in a specific field. Thus, H-1B status is very flexible encompassing any occupation fitting the definition of specialty occupation. In many respects, TN status is more rigid. NAFTA specifically identifies the list of allowable TN occupations. If an occupation cannot be fit into one of the occupations on the list, the TN will be denied. In other respects, however, TN status is broader, as it includes many positions, such as “technologists”, which do not require a bachelor’s degree.
Due to the rigidity of TN classification as well as the there are several occupations which are problematic. Some of these occupations are discussed below:
Appendix 1603.D.1. of NAFTA includes “Engineer” as one of the professions in which a businessperson seeking admission under the TN category may engage. According to the Appendix, the minimum educational requirement for an engineer is a Baccalaureate degree or a provincial license. Software engineers may encounter some difficulty in gaining admission as TN professionals in this category. No state at present requires a license of software engineers, and only a handful of universities, colleges and technical schools offer degree courses or majors formally designated as software engineering ones, generally offering only degrees in Computer Science or Computer Engineering to the aspiring software engineer. In the TN context, applications for software engineers have been denied on the basis that software engineering, unlike such traditional disciplines as electrical, mechanical, and chemical engineering, is not a true engineering profession. Most software engineers today hold degrees in Computer Science, Computer Engineering, Computer Information Systems or Management Information Systems and an education in these disciplines is regarded by many Information Technology (IT) companies as the most desirable preparation for employment in this industry. Holding such degrees nevertheless exposes the applicant for TN admission as a software engineer to denial (even if software engineering is accepted as a legitimate engineering specialty) on the basis that his or her degree is not an engineering one.
Computer Systems Analyst
Appendix 1603.D.1. of the NAFTA lists Computer Systems Analyst as one of the professions for which admission in TN status is permissible. For admission as a Computer Systems Analyst, the applicant must have a Baccalaureate degree or a postsecondary diploma (no specific discipline is indicated for either). If only a postsecondary diploma is held, three years of experience must also be shown. Since no licensure system exists for Computer Systems Analysts at this time, a license requirement does not apply. The DHS Field Inspector’s Manual describes a Computer Systems Analyst for TN admission purposes as “an information specialist who analyzes how data processing may be applied to the specific needs of users and who designs and implements computer-based systems . . . [and studies ]the organization itself to identify its information needs and design computer systems which meet those needs.” Although Computer Science appears to be the preferred discipline for Computer Systems Analysts, the United States Customs and Border Protection* (“USCBP”; formerly, the inspections component of the Immigration and Naturalization Service) has exhibited a willingness to admit applicants with degrees and/or postsecondary diplomas in a range of formal disciplines that involve the study of computerized information systems, such as Information Technology, Information Processing, Computer Technology and even Database Management. The most significant problem IT companies have encountered with respect to the admission of Computer Systems Analysts under NAFTA concerns individuals whose job descriptions, work experience, or educational background identifies them, in the USCBP’s view, as computer programmers. At present, the USCBP’s position is that computer programmers are not admissible under the TN category.
Scientific Technician or Technologist is the only profession enumerated in Appendix 1603.D.1. which does not require the possession of a Baccalaureate/Licenciatura degree, a license, a postsecondary diploma or certificate, or a specified number of years of professional experience. A person applying for admission as a Scientific Technician or Technologist must demonstrate:
- Theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and
- The ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.
TN applications for admission as a Scientific Technician/Technologist are routinely reviewed with heightened scrutiny by USCBP officers. We provide four basic criteria that any successful application for categorization as a Scientific Technician/Technologist must meet:
- Scientific Technicians/Technologists “must” be seeking admission to another NAFTA State Party to “work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics” (emphasis added). This means that the applicant’s work must be subservient in nature; it should not be an end in itself or in any way result in the production of a completed product by the Scientific Technician/Technologist alone (or in cooperation with someone who is not a professional);
- Second, the applicant’s duties must be ancillary to the work of a professional or professionals; he or she must assist such a professional or professionals in the performance of his/her duties (the fact that “direct” support is required implies that there must be no intermediaries between the Scientific Technician/Technologist and the professional);
- Third, the application must illustrate how the Scientific Technician/Technologist’s work and the work done by the professional or professionals to be supported are connected. This will require the applicant and/or the company wishing to employ him or her to explain precisely how his or her work is related to the work done by the relevant professional or professionals and, more specifically, how the work of the applicant will be beneficial or useful to the work of this professional or professionals. The applicant’s work should generally consist of the resolution of practical problems encountered by the professional or professionals, or of the conduct of basic or applied research;
- Fourth, a relationship should be shown between the individual applicant and the professional or professionals to be supported. Although there is no requirement that the professional being supported be employed by the company seeking to employ the Scientific Technician/Technologist, some USCBP officers require that a hierarchical chart be produced and that this chart depict the applicant as being directly subordinate to, or reporting directly to, an identified professional or set of professionals.
NAFTA designates “professionals” as the only class of persons who may receive the benefit of the Scientific Technician/Technologist’s support. The person or persons being supported must be working in one of the professional disciplines cited in NAFTA wherein the Scientific Technician/Technologist must show his or her theoretical knowledge (that is, agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics).
Appendix 1603.D.1. also lists “Management Consultant” as a profession for which entry in TN status is permitted. This has been a somewhat nebulous category subject to many varying definitions by numerous organizations who have attempted to use this category as a “catch all” for employees who do not meet any of the other NAFTA categories, or who do not meet educational requirements of the other categories but who do have at least five years of experience in the field. TN applications for Management Consultants are therefore subject to close review by USCBP officers, and additional care needs to be invested in their preparation by the United States entity and its counsel. Management Consultants must: provide services that 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.
NAFTA requires that a TN Management Consultant have either a Baccalaureate Degree (in no specific discipline), or five years of experience as a management consultant or in a “field of specialty related to the consulting agreement.” These requirements can be established through a detailed résumé or, preferably, through letters from former employers if the individual has not been self-employed. If the applicant has been self-employed as a consultant, then letters from entities receiving the benefit of his or her consultation would be appropriate. Although NAFTA allows persons new to the field of management consultation to be admitted as Management Consultants, the USCBP can be expected to be skeptical of an application for a person who has had many years of industry experience but has never before served in a consultative role.
The DHS Field Inspector’s Manual states that:
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 [sic], 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.
Generally, only a Management Consultant who is under contract (i.e., in a non-salaried capacity) to a United States entity will be admissible. A salaried Management Consultant may be admissible, but not if he or she is (a) assuming an existing position, or (b) filling a newly-created position. This means that the Management Consultant must be employed in a “supernumerary” employee category. In common usage, “supernumerary” refers to being in excess of the usual, proper, or prescribed number, but associated with a regular body or staff. Any application for a TN Management Consultant that will be employed as a salaried employee of a United States entity must be careful to state clearly that the applicant will be a supernumerary employee, who, although on the company payroll, will somehow stand apart from the main corpus of employees, and will not be incorporated into the regular hierarchy of this entity.