Posts Tagged ‘TN’

The TN Status and the New US-Mexico-Canada Agreement

Monday, October 1st, 2018 by W. Scott Railton

The United States, Canada, and Mexico have announced that they have reached an agreement to supplant the longstanding North American Free Trade Agreement (NAFTA).  The new agreement will be entitled the U.S.-Mexico-Canada Agreement (USMCA).  For now, the TN professional status will remain largely unchanged.

The immigration provisions of the new Agreement are housed in Chapter 16, as was the case with NAFTA.  For side by comparison, click on the links in the last sentence.

The USMCA’s Chapter 16 adopts much of the old NAFTA language for “Business Visitors,” “Traders and Investors,” “Intra-Company Transfers,” and “Professionals.” “Professionals” is what we commonly refer to as the TN category, and the issue I will highlight here.

Here’s one new thing:  Article 1602, Paragraph 3, of the USMCA includes language not in the NAFTA, leaving the door open for future restrictions via regulation by any Party:

3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.

Side by side, the lists of Professionals in Appendix 1602.D.1 of the USMCA and Appendix 160-3.D.1 of NAFTA are basically the same.  However, it is not a complete copy and paste:

  • The USMCA Appendix includes an additional Footonote 7 to the Medical Laboratory Technologist/Medical Technologist category, which states that “A businessperson in this cateogry must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic, or bacteriological tests and analyses for the prevention of disease.”
  • The USMCA Appendix also includes an additional Footnote 8 to the Biologist category, which states, “In accordance with the NAFTA 1994 Commission decision of October 7, 2003, the term “Biologist” included the profession Plant Pathologist.” This Footnote obviously reflects the 2003 adjustment to the list.
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The new Article 1606 covers a “Working Group,” which meets once per year to consider administration of the Chapter. The Working Group was already in existence with NAFTA, but the USMCA adds an additional review responsibility for the Group, concerning technologies:
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(e) Issues of common interest related to temporary entry of business persons, such as the use of technologies related to processing of applications, that can be further explored among the Parties in other fora.
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Many thought any agreement would include numeric restrictions for TNs.  Not present. In fact, the original restrictions on Mexico’s TNs are stricken from the Appendix 1603. The countries are expected to collect and share data on entries, as per the Article 1605 Provision of Information requirements.
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The Agreement also does not include a revision of the TN list. Experts seem to agree that the list of eligible occupations needs to be updated. Many new professions have come into existence over the last 25 years.  The Information Technology sector is full of new occupations, such as web developers, database administrators, architects, and software engineers.  Medical science and health care professions have similarly evolved–nurse practitioners are filling a vital role for hospitals, and sometimes are denied TNs for being more than a Registered Nurse. Nonetheless, any attempt at re-doing the occupation codes may have led to a more restrictive outcome, with less categories, numeric restrictions, and tighter qualifications. The U.S. has been limiting immigration in all other areas, and such would’ve reasonably be expected here.
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One question going forward is what do we call the TN now?  TN is short for Treaty NAFTA, but with the change of name to the trilateral treaty, perhaps the work authorization category may change in name too. The White House has been intent on doing away with NAFTA, and so perhaps the TN name might do the same way, in time.
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My impression is the negotiators had their reasons on each side to avoid a major rewrite on Chapter 16.  Other trade issues probably carried more weight, and fast advancing deadlines set by the White House may have ended up leaving this chapter for later. The U.S. Office of Trade Representative held hearings on the mobility issues, and so it is not like the issues were overlooked.
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My greatest concern for the next year is that the U.S. may continue to use regulation to alter the TN category further. The Administration has been very effective at limiting immigration through restrictive regulation and categorical interpretations. One possibility is that DHS may try to move TN adjudications away from the border and to USCIS Service Centers. They are already testing this idea with L adjudications, but the process only seems to slow things down for businesses.  I attended a meeting at the Blaine Peace Arch earlier this year concerning the L-1 Pilot Program where the USCIS Director speculated on the possibility of TN adjudications at the Service Centers. Also, as with all immigration applications, I expect the cost of TN applications to rise for employers, as the government paperwork becomes more demanding.
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This is very fresh news, and so other developments and interpretations may arise.  We will continue to follow this closely.
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USCIS Narrows Economist TN Category

Monday, December 18th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration and Services (USCIS) continues to finds to limit legal immigration to the U.S. Today’s announcement concerned NAFTA–specifically, the Economist category. The press release is posted below.

NAFTA’s schedule of TN professions is out of date. It was created in the early 1990s, before so many changes brought on by new technologies. The new guidance specifically excludes Financial Analysts, Marketing Analysts, and Market Research Analysts. Undoubtedly, many person filling these roles with companies are trained in economics, and are providing valuable advice to their employers related to economics. Nevertheless, this is the current state of immigration reform at USCIS. So many of these reforms will simply drive valuable professionals to Canada and Mexico. The Administration’s premise that American companies are looking abroad for employees first is fundamentally flawed.

We’ve been asked what to expect with NAFTA. This announcement is one of the clearest yet that the Administration is looking at individual TN categories. Employers should not wait until the last minute consider renewals of TNs.

Here’s the announcement:

WASHINGTON —U.S. Citizenship and Immigration Services (USCIS) announced today that it is clarifying policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist.

The North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the U.S. to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, resulting in inconsistent decisions on whether certain analysts and financial professionals qualify for TN status as economists.

TN nonimmigrant status is intended to allow a limited number of professionals and specialists to work temporarily in certain specifically identified occupations in the United States. This updated guidance provides USCIS officers with a specific definition of one such category – economists – allowing them to adjudicate applications in a way that complies with the intent of the agreement.

This policy update clarifies that professional economists requesting TN status must engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.

This policy update is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations.

Interim and final policy memos are official USCIS policy documents and go into effect on the date the memos are issued.

USCIS is committed to carrying out the directives of the President’s Buy American and Hire American Executive Order to better protect the interests of U.S. workers. Ensuring the integrity of guest worker programs is consistent with our Buy American, Hire American initiatives.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and Instagram (@USCIS).

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NAFTA Renegotiations and the TN Professional

Thursday, May 25th, 2017 by W. Scott Railton

On May 18, 2017, the U.S. Trade Representative informed Congress that President Trump intends to commence negotiations with Canada and Mexico with respect to the North American Free Trade Agreement. On May 23rd, the Office of the United States Trade Representative published notice in the Federal Register, requesting comments on negotiating objectives regarding modernization of NAFTA.

The summary of the notice states that “NAFTA was negotiated more than 25 years ago, and while our economy and U.S. businesses have changed considerably over that period, NAFTA has not. The United States seeks to support higher-paying jobs in the United States and to grow the U.S. economy by improving U.S. opportunities under NAFTA.”

The Notice seeks written comments by June 12, 2017. A hearing will be held on Tuesday, June 27, 2017 in Washington D.C. Any intent to testify must be submitted by June 12th, 2017.

What do we know?

Trump originally said that he would pull the United States out of NAFTA, wholesale, but it appears advisors have prevailed upon him to renegotiate. America is quite ingrained in trade of all sorts with Canada and Mexico, and an abrupt cessation would be harmful.

Trump is serious about curtailing immigration, legal and illegal, by all indications. He’s also serious about trying to protect the U.S. worker. These facts do not bode well for the TN category as a whole.
The occupation schedule for TNs is roughly 25 years old, and way out of date. There is need for modernizing the schedule, provided such efforts are made in good faith.

Many sectors are impacted by the TN visa. Hospitals rely on the TN to employ nurses, physicians (research/teaching), recreational therapists, physical therapists, pharmacists, medical laboratory technologists, and others. Institutions of higher education use the TN to employ professors. Municipalities use the category to employ urban planners. Several professions in agriculture are represented, including soil scientists, sylviculturists, animal breeders, animal scientists, and horticulturists.

This Administration takes pride in disruption.

Ultimately, I expect many employers will push back on limitations, but there could be much debate. Unions and workers may have much to say. NAFTA involves all sorts of trade issues, and immigration may be pushed to the side, or not given sufficient discussion. There has been a tendency in recent years to limit immigration in trade agreements.

This is an important time for businesses and business organizations to be vocal on this point. Employees in TN status need to pay attention, as the prospective unavailability of a TN needs to at least be considered. Persons with paths to immigrate will need to consider the TNs nonimmigrant requirement, before making any application or traveling abroad.

We’ll keep monitoring developments with NAFTA and the TN professions, and are available to discuss.

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Optimizing TN and L Petitions Submitted to CBP

Wednesday, September 17th, 2014 by W. Scott Railton

U.S. Customs and Border Protection is attempting to steer TN and L applicants to certain ports of entry and pre-flight inspection facilities in Canada for “optimal” processing. TN and L petitions can still be submitted at any Class A port of entry. However, CBP has designated certain ports of entry “that will ensure a more efficient approach to processing the high volume of TN and L applicants.”

The list includes major airports in Toronto, Vancouver, Calgary, and Quebec, as well as ten major land port of entries, including Highgate, Derby Line, Alexandria Bay, Peace Bridge, Rainbow Bridge, Champion, Detroit Canada Tunnel, Detroit Ambassador Bridge, Blaine Peace Arch, and Sweetgrass, MT. The CBP website also lists preferred time for the presentation of petitions, with most ports favoring times in the middle of the week. They really need to accommodate applicants on the weekend as well, since many working in the U.S. will drive to the border to renew over the weekend.

Time will tell how this plays out, but I am skeptical. In the old days, the ports used to have Free Trade Officers who were expert in NAFTA matters.  They would usually take a reasoned approach to adjudications, and were amenable to hearing from attorneys on more technical points. Since 9/11, that has fallen by the wayside, and there have only been limited attempts by the agency to cultivate and put forth such expertise. Meanwhile, adjudications at the border have become increasingly erratic. These tendencies of border adjudicators have led some attorneys to opt for the less convenient processing that is possible with USCIS.

If the agency is going to do this, I would suggest that it is needed at more than 10 land ports. There are many, many more ports of entry on the Canadian border, and they all should have expertise in NAFTA matters.

Further, it is a little concerning that CBP highlights as the impetus for this program “the need for a more efficient approach to processing high volume of TN and L applicants.” Efficiency can mean many things, sometimes good, sometimes bad, but it’s not usually the first word that comes to mind when someone seeks an adjudication of a matter. Fairness is what most people seek first.

All this said, building a bank of NAFTA expertise within the agency is much needed, and this is possibly a start.

 

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Canadians Can Now File New TN Petitions With USCIS

Tuesday, October 2nd, 2012 by W. Scott Railton

The Department of Homeland Security announced today that it will henceforth accept new TN applications from Canadians via mail or courier to U.S. Citizenship & Immigration Services (USCIS). This is a significant change in administrative procedure from the former requirement that all new TN petitions be filed at a Port Of Entry or through Pre-Flight Inspection with U.S. Customs and Border Protection (USCBP).

TNs are Treaty-NAFTA nonimmigrant work authorizations, allowing certain Canadian and Mexican professionals to work in the United States for U.S. employers under certain conditions. TN status may be granted up to three years, and is renewable. For more on the category, click here.

This change in procedure is really good news for applicants, and may end up adding some predictability to the adjudication process. Before this announcement, applicants had no other option than to arrive at port of entry with the intention of working in the U.S., with the final say going to a line officer at U.S. Customs and Border Protection. Occasionally, disappointment for employer and employee would follow.  Now, employers have the option of petitioning for their employees in advance, thereby determining whether or not there will be any issues far ahead of actually traveling to the United States.

Further, USCIS will likely issue Requests for Evidence if there is an issue with the case, allowing the petitioner and employee an opportunity to respond in due time, rather than be turned around as this case with a border application.  While the administrative hoop of a Request for Evidence is burdensome, the process requires the agency to articulate its demands and gives a fair and non-disruptive manner to the petitioner to respond.

The cost of filing initially through USCIS will be higher, as an I-129 is required and the filing fee for this is $325. The cost of filing at the border is $50 plus $6 for an I-94. There will be cases though where the added cost will be worth the predictability that the process through USCIS brings.

With this expansion in adjudicative policy, there will be some cases where it will clearly be a strategic decision on whether to file with USCIS at a higher cost and with a lengthier adjudication process, or file at a port of entry with USCBP. USCBP is primarily an enforcement agency, while USCIS is primarily vested with responsibility for immigration benefits. This distinction in agency missions needs to be considered sometimes when choosing the best “forum” for an adjudication.

The change in policy is a result of the Beyond The Border agreement between Canada and the United States. More administrative changes in border practice are forthcoming.

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