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Trade NAFTA (TN) Status Pursuant to the North American Free Trade Agreement

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Free Trade Agreement ("NAFTA") was implemented on January 1, 1994, the Canada-U.S. Free Trade Agreement ("FTA") was superceded.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. In addition, under the NAFTA, TN status is now available to Mexican citizens as well.

Until January 1, 2004, the processing of TNs for Mexican citizens was very different from TNs for Canadian citizens. Prior to this date, Mexican citizens were required to first obtain a labor condition application and then the proposed employer would be required to file a TN petition with the Service Center. In addition, Mexican citizens were subject to annual limits on the number of TNs that could be approved. However, as of January 1, 2004, Mexican citizens may apply directly at consular sections around the World for a TN visa. No labor condition application or approved petition is required and Mexican citizens are no longer subject to numerical limits.

Canadian citizens are visa exempt under most nonimmigrant categories, including the TN. As a result, Canadian citizens are eligible to seek TN status directly at a preclearance facility located at a Canadian airport or at a land or sea port of entry.

Eligible Professions

Canadian and Mexican citizens who work in specific professions may enter the United States under TN status, in order to work for a U.S. company on a temporary basis. Eligible professionals may also work for Canadian or Mexican companies in the United States.

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 qualify. 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 that 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 (or Licenciatura, the Mexican equivalent of a bachelor's degree) is usually required. Although not specifically stated in Appendix 1603.D.1, United States Customs & Border Protection ("USCBP") has previously stated that it 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 or certificate 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" 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/Technologist

A business person under his category must possess:

1. Theoretical knowledge in any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and
2. 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.

Since November 7, 2002, the following guidelines [which currently appear in the Inspector's Field Manual ("IFM")] apply to scientific technicians and technologists ("ST/T"):

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 an 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 IFM 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 immigration 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 IFM also 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, ST/Ts currently 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 limits this category. For example, other medical technicians such as ultrasound technicians or ECG technicians will probably not qualify.

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, USCBP permits patient care that is clearly incidental to teaching or research activities. According to the 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 be 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.

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.

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.

Hotel Managers

The precedent decision of Matter of Sun, 12 I. & N. Dec. 535 (D.D. 1966) recognized that hotel managers could be considered professionals; the vocation of hotel manager appears in Appendix 1603.D.1 for this reason. However, in the subsequent precedent decision of Matter of Caron International, 19 I. & N. Dec. 791 (Comm'r 1988), the Commissioner stated the following about Matter of Sun:

Although it concludes the vocation of hotel manager in its more complex form involving certain duties for a large hotel may be considered a profession, it also concludes "the beneficiary, by virtue of his specialized high-level education in the field of hotel management and his experience in that field is qualified as a member of that profession." Matter of Sun is distinguishable from this case because the petitioner here has not demonstrated a specific academic degree is required to perform the proposed occupation.

In light of the above, the general manager of a small strip motel will have difficulty establishing that his or her proposed position is professional. Similarly, a lower level manager in a large hotel will also have difficulty establishing that his or her proposed position is professional.

Although a hotel manager may qualify for TN status based on a degree or diploma in restaurant management, he or she may not seek TN status as a restaurant manager, even if the restaurant happens to be located within a hotel. On the other hand, a Director of Food and Beverage Services (the proposed position in Matter of Sun) may qualify because his or her duties involve a key function of the hotel and not just the management of one restaurant.

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.

Certification Requirements for 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 inadmissible. It is now established that the term "health-care worker" in the legislation includes the following occupations:

1. Licensed practical nurses, licensed vocational nurses, and registered nurses;
2. Occupational therapists;
3. Physical therapists;
4. Speech language pathologists and audiologists;
5. Medical technologists (clinical laboratory scientists);
6. Physician assistants; and
7. Medical technicians (clinical laboratory technicians).

The certification requirement does not apply to health care workers seeking to work as teachers, researchers, or managers of health care facilities. A health care worker may still seek TN status where the proposed position does not involve direct or indirect patient care.

Notwithstanding this ground of inadmissibility, a blanket one-year nonimmigrant waiver of inadmissibility was initially granted for these health-care workers. These blanket waivers were granted automatically at the same time as the TN application.

For most individuals, this blanket waiver ceased to be available on September 23, 2003. However, it continued to be extended until July 25, 2005, for Canadian and Mexican nurses who, before September 23, 2003, held TN or TC status as nonimmigrant health-care workers and held valid licenses from a United States jurisdiction, provided that they obtained certification within one year.

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.

Licensure Requirements for Certain Professions

Previously, TN applicants in certain regulated professions (i.e. lawyers, accountants, etc.) were required to establish that they possessed the necessary licensure to practice (if required) in the state of intended employment. However, the Department of Homeland Security ("DHS") eliminated the licensure requirement for Mexican citizens on March 10, 2004. On November 12, 2004, DHS also removed the licensure requirements for Canadian citizens seeking TN status.

As a result, a state license is no longer a mandatory documentary requirement for entry. State jurisdictions continue to maintain the ability to impose licensure requirements on any profession. DHS has simply stated that it will not require evidence of licensure before it will admit the alien as a TN.

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. 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.]

However, self-employment may still be found even where the alien is not the sole or controlling shareholder or owner.

According to the IFM, even if the receiving enterprise is legally distinct from the alien, such as a corporation having a separate legal existence, entry as a NAFTA Professional must be refusd id the receiving enterprise is "substantially controlled" by that alien. Officers should consider the following factors, among others, in determining whether the alien "substantially controls" the United States entity:

1. Whether the applicant has established the receiving enterprise;
2. Whether, as a matter of fact, the applicant has sole or primary control of the U.S. enterprise (regardless of the applicant's actual percentage of share ownership);
3. Whether the applicant is the sole or primary shareholder of the business; or
4. Whether the applicant is the sole or primary recipient of income from the business.

The IFM also states that the following factors, among others, are relevant in determining whether the alien will be self-employed in the United States:

1. Incorporation of a company in which the alien will be self-employed;
2. Initiation of communications (e.g., by direct mail or by advertising) for the purpose of obtaining employment or entering into contracts for an enterprise in the United States; or
3. Responding to advertisements for the purpose of obtaining employment or entering into contracts.

On the other hand, the following activities do not constitute the establishment of a business in which the alien will be self-employed in the United States:

1. Responding to unsolicited inquiries about service(s) which the professional may be able to perform; or
2. Establishing business premises from whch to deliver prearranged service to clients.

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.

Maximum Period of Stay

Until recently, the maximum initial period of stay that could be granted for a TN nonimmigrant was one year. In addition, a TN nonimmigrant could request extensions of stay within the United States only in one-year increments. However, on October 16, 2006, DHS published its final rule on periods of admission and extensions of stay for Canadian and Mexican TNs.

As of October 16, 2008, the maximum allowable period of admission for TN nonimmigrants is increased from one year to three years. The final rule also allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the previous maximum of one year.

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.

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 TC workers under the FTA, this appears to have changed with the implementation of the NAFTA.

INA §214(e)(2) now provides that the TN category is to be treated as a regular admission class under INA §101(a)(15). 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.

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Initially, many (but not all) ports of entry followed this guidance. However, many ports of entry began to disregard it in later years.  Fortunately, a 2008 letter from USCBP appears to have resurrected this principle.

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In a letter dated April 21, 2008, from Mr. Paul M. Morris, Executive Director, Admissibility and Passenger Programs, USCBP opined that the mere filing or approval of a Form I-140 immigrant petition on behalf of a TN nonimmigrant would not automatically constitute immigrant intent. A TN nonimmigrant and his or her dependents may have an intention to immigrate or adjust status at a future time but, as long as his or her intention at the time of admission is to be in the United States for a temporary period, he or she could be admitted. However, once the TN files an application for an immigrant visa or adjustment of status, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

Although opinion letters are not legally binding on USCBP, the 2008 letter nevertheless supports the principle that a TN professional can have nonimmigrant intent notwithstanding the filing or approval of an immigrant petition on his or her behalf. Of course, 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.

About the Author

Henry J. Chang obtained his law degree from Osgoode Hall Law School in 1990. He is a member of both The State Bar of California and The Law Society of Upper Canada ("LSUC"). Mr. Chang is also licensed as a Foreign Legal Consultant by the Law Society of Upper Canada, which is a requirement for all Ontario lawyers who provide advice on the law of a foreign jurisdiction.

A recognized authority in the field of United States and Canadian immigration law, Mr. Chang lectures extensively on the subject in both the United States and Canada. His articles have appeared in numerous nationally- and internationally-recognized publications. A partial list of recent publications and speaking engagements appears below. Mr. Chang also mentors other lawyers in the practice of immigration law in the United States and Canada.

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