New Members Division E-News

May 2013

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Avoid Stumbling Blocks In Acquiring TN Status by Karen Jensen and Jonathan Grode W ith the FY 2014 H-1B cap met and increased scrutiny placed on L-1B petitions, employment-based immigration practitioners should always consider country-specific nonimmigrant visas when advising clients. While most of these country-specific visas—E-3 (Australia) and H-1B1 (Singapore and Chile) function similarly to the H-1B, the TN visa for Canadian and Mexican citizens is truly unique. Trade NAFTA Status, or TN Status, was enacted as part of the North American Free Trade Agreement (NAFTA) in 1994. The United States, Canada, and Mexico agreed to facilitate the temporary entry of the other countries' professional workers to carry out business activities across borders. TN status has certain advantages in comparison to other employmentbased statuses. There is no annual quota as there is for the H-1B. For TN status, the employer does not need to conduct a test of the labor market to determine if a qualified U.S. worker is available. Nor is a labor condition application required. Canadian TN applicants have the easiest application process: they can apply for status directly at the border without obtaining a visa at a consulate beforehand. TN applicants from either country are eligible to be approved for up to three years of status at a time, and there is no limit on the number of times it may be renewed or any cap on the number of years a beneficiary may hold the status. Note, though, that Mexican citizens applying through the Embassy or Consulate will be granted a visa valid for only one year, pursuant to the Reciprocity Table. However, the length of status granted and each renewal is subject to the discretion of the border officer. The employer must describe the valid business purpose of the length of a TN admission period and any renewal. While there are many advantages to TN status, it may not be available to all potential applicants. In order to apply for TN status, the applicant must fit into one of 63 categories of professions listed in the NAFTA Treaty, specifically in Appendix 1603.D.1. The treaty also briefly describes the qualifications required for each category. Most require a minimum of a Bachelor's degree, while some allow experience or licensure to substitute for education. When the categories were created in the early 90s, only one computerrelated occupation was included: Computer Systems Analyst. There are now many types of IT workers, and practitioners have difficulty classifying them within the Computer Systems Analyst category, although the Engineer category can be used for Software Engineers. Because of this mismatch in prevalent occupations and the available categories, applications in the computer sciences field are often closely scrutinized. Certain other TN categories may also present challenges to practitioners. The Management Consultant category can be somewhat elastic with regard to its job duties and the fact that experience in lieu of education can be used to support the approval. Because it does not have clear guidelines, the adjudicating officers often scrutinize these applications more closely. There are some other stumblingblocks that practitioners may encounter in attempting to acquire TN status for their clients. When applying for TN status at the border, a Canadian applicant must have the original degree; a copy will not be accepted. If the applicant's degree is from a country outside of North FOR MORE ON TN STATUS: Special Treament for Certain Countries: TN, H-1B1, E-3 (Recording) Purchase > NAFTA Revisited (Seminar) FREE! > America, the applicant must submit the degree to a credential evaluation service and be found equivalent to the required North American degree. Finally, TN is not a dual intent status, so the applicant should be prepared to prove an intent to return home at the end of the TN status. The TN visa can be an excellent tool to meet the business needs of North American corporate clients. Its rapid adjudication at the Canadian border and its lack of caps or quotas make it one of the more flexible visas available. Karen Jensen is an Associate at Green and Spiegel, practicing primarily employment-based immigration law. Jonathan Grode is the U.S. Practice Director at Green and Spiegel, and is an Adjunct Professor at Temple University's Beasley School of Law. 5

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