9 FAM § 41.59
§ 41.59 PROFESSIONALS UNDER THE NORTH AMERICAN FREE TRADE AGREEMENT
(TL:VISA-572; 08-05-2003) (Office of Origin: CA/VO/L/R)
Related Statutory Provisions
(TL:VISA-572; 08-05-2003)
See INA 214(e)(2) and INA 214(j).
Related Regulatory Provisions
(TL:VISA-572; 08-05-2003)
See 22 CFR 41.59.
41.59--Notes
(CT:VISA-719; 03-10-2005) (Office of Origin: CA/VO/L/R)
41.59 N1--BACKGROUND
(CT:VISA-658; 10-26-2004)
a. On December 17, 1992, the Presidents of the United States and Mexico, and the prime minister of Canada entered into the North American Free Trade Agreement (NAFTA). Implementation of this agreement has been provided for by the North American Free Trade Agreement implementation act (NAFTA implementation act), Public Law 103-182. The NAFTA implementation act was signed into law by the President of the United States on December 8, 1993. The NAFTA entered into force on January 1, 1994.
b. NAFTA Chapter 16, entitled ''Temporary Entry for Business Persons'' was designed to facilitate the movement of businesspersons among the United States, Canada, and Mexico. This chapter contains the visa-related provisions relating to the temporary entry of businesspersons. NAFTA allows investment, trade, and professional commerce services to take place, and thus affects four nonimmigrant visa categories in the U.S. Immigration and Nationality Act: Temporary Visitors for business (B-1); treaty trader and investors (E); intra-company transferees (L) and NAFTA professionals treaty national (TN).
c. The U.S.-Canada Free Trade Agreement (US-CFTA) created a class of professional nonimmigrants, (TC), but did not provide authority for visa issuance. NAFTA has modified and adopted the TC professional category and treats this new admission category (TN) as if it were a nonimmigrant visa classification under INA 101(a)(15), thus, authorizing the issuance of visas to both Mexicans and Canadians. The CFTA was suspended when NAFTA entered into force. The TN category should not be confused with the H-1B visa classification. It is a separate and distinct category. Similarities do exist, however, since this category was derived from the H-1B classification.
41.59 N2--COUNTRIES THAT BENEFIT FROM AGREEMENT
(TL:VISA-323; 10-10-2001)
Only citizens of the NAFTA parties (Canada, Mexico and the United States) may benefit from the agreement. Permanent resident status in any NAFTA party country does not in itself confer any benefits under this chapter of the agreement.
41.59 N3--NAFTA PROFESSIONAL REQUIREMENTS
41.59 N3.1--Qualified as Professional
(CT:VISA-658; 10-26-2004)
a. This category extends visa classification only to NAFTA citizens who are members of a profession listed in Appendix 1603.D.1 of NAFTA Chapter 16.
b. The alien must meet the specific requirements, education and/or experience, etc. listed in the Annex related to that particular profession. While the list originally included professional activities included under the former H-1 standards as professions, it has been extended to include additional professions. However, with rare exception each profession requires a baccalaureate degree as an entry-level requirement. If a baccalaureate is indeed required, experience can NOT be substituted for that degree. In some professions, alternative criteria to a bachelor's degree is listed, and sometimes experience and criteria are required in addition to the degree. The list is occasionally expanded upon agreement of all NAFTA parties.
41.59 N3.2--Employment Required
(TL:VISA-604; 01-22-2004)
The alien must engage in prearranged business activity for a U.S. or foreign employer. But self-employment is not an option under the category. If the alien seeks self- employment, the alien should pursue that business under the treaty trader or investor visa classification, or another visa category. Evidence of engagement by a U.S. employer(s) or entity(ies) to engage in prearranged business activities at a professional level is necessary to accord ''TN'' classification.
41.59 N4--ENTRY DOCUMENTATION
41.59 N4.1--Canadian Citizens
(TL:VISA-604; 01-22-2004)
Since Canadian citizens, unlike Mexican citizens, are not obliged to be in possession of a nonimmigrant visa to enter the United States, (except in the E and K categories), the issuance of a treaty national (TN) or treaty dependent (TD) visa should be rare. Consular officers should remember, however, that although Canadians don't need visas, they may, and should be issued to qualified applicants upon request.
41.59 N4.2--Mexican Citizens
(TL:VISA-604; 01-22-2004)
A Mexican citizen seeking TN status must apply for and be issued a visa. The validity of the visa should coincide with the reciprocity schedule. The Mexican applicant seeking visa issuance must present the requisite evidence to a consular officer for adjudication.
41.59 N4.3--Required Documentation
(TL:VISA-604; 01-22-2004)
Both nationalities will have to submit the following documentation:
(1) Proof of citizenship (see 9 FAM 41.59 N 6);
(2) Evidence of an offer of employment by submission of employment letter in one of the professional occupations which requires the education and/or experience listed in Appendix 1603.D.1 of NAFTA Chapter 16 (see 9 FAM 41.59 N7); and
(3) Evidence that the applicant meets the minimum education and/or work experience requirements set forth in Appendix 1603.D.1 (see 9 FAM 41.59 N7.1).
41.59 N5--TEMPORARY ENTRY
(CT:VISA-658; 10-26-2004)
The Agreement encompasses only businesspersons coming to the U.S. temporarily. NAFTA Chapter 16 provides the following definition: ''Temporary Entry means an entry into the United States without the intent to establish permanent residence.'' The Department's regulation (22 CFR 41.59(c)) amplifies this definition to provide additional guidance. The essence of the requirement is that the alien is seeking ''temporary'' entry into the U.S. The alien, therefore, must satisfy the consular officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. The circumstances surrounding an application should reasonably and convincingly indicate that the alien's temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment. An intent to immigrate in the future which is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.
41.59 N6--EVIDENCE OF CITIZENSHIP
(TL:VISA-604; 01-22-2004)
The NAFTA applicant must present the requisite evidence of citizenship:
(1) Mexican citizens must present a passport, as they require visa issuance; and
(2) Canadian citizens may present a passport, as visas are not required, or they may provide secondary evidence, such as a birth certificate. However, Canadian citizens traveling to the United States from outside the Western Hemisphere are required to present a valid passport at the Port-of-Entry.
41.59 N7--EVIDENCE OF PROFESSIONAL EMPLOYMENT
(TL:VISA-604; 01-22-2004)
The applicant must present evidence sufficient to satisfy the Immigration or Consular Officer of intent to engage in prearranged business activities for a U.S. employer(s) or entity(ies) at a professional level. This evidence may be in the form of an employment letter from a U.S. or foreign employer, or contract providing a detailed description of the business activities which the individual will be engaged in, and should state the following:
(1) Activity in which the alien shall be engaged;
(2) Purpose of entry;
(3) Anticipated length of stay;
(4) Educational qualifications or appropriate credentials demonstrating professional status;
(5) Evidence of compliance with the Department of Homeland Security (DHS) regulations, and/or state laws; and
(6) Arrangements for remuneration.
41.59 N7.1--Education and/or Experience Requirement
(CT:VISA-658; 10-26-2004)
a. Education: the applicant's employer must submit evidence that the applicant meets the minimum education requirements or has the alternative credentials set forth in Appendix 1603.D.1 of NAFTA Chapter 16. Evidence of professional qualifications may be in the form of degrees, certificates, diplomas, professional licenses, or membership in a professional organization. Degrees, diplomas, or certificates received from an educational institution outside the United States, Canada, or Mexico must be accompanied by an evaluation by a reliable credentials evaluation service specializing in evaluating foreign documentation.
b. Experience: Evidence attesting to the applicant's experience should be in the form of letters from former employers employees. If the applicant was self-employed, business records should be submitted attesting to that self-employment.
41.59 N7.2--Licensing Requirements
(CT:VISA-664; 12-22-2004)
a. The list of professions reveals requirements for admission into the United States under immigration provisions. Such requirements for admission or classification as a NAFTA professional do not include licensure. Licensure to practice a given profession in the United States is a post-entry requirement subject to enforcement by the appropriate state or other sub-federal authority.
b. Proof of licensure to practice a given profession in the United States may be offered along with a job offer letter, or other documentation in support of an application for treaty national (TN) classification. But admission and/or classification should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.
41.59 N8--DENIAL OF TN STATUS IN CERTAIN LABOR DISPUTES
(CT:VISA-719; 03-10-2005)
A citizen of Canada or Mexico may be denied TN status as described in section 214(j) and Annex 1603 of the NAFTA if:
(1) The Secretary of Labor certifies to, or otherwise informs the commissioner, that a strike or other labor dispute involving a work stoppage of workers in the alien's occupational classification is in progress at the place where the alien is, or intends to be employed;
(2) Temporary Entry of that alien may affect adversely either:
(a) The settlement of any labor dispute that is in progress at the place or intended place of employment; or
(b) The employment of any person who is involved in such dispute.
41.59 N8.1--If employed alien is participating in strike
(TL:VISA-604; 01-22-2004)
If the alien has already commenced employment in the United States, and is participating in a strike or other labor dispute involving a work stoppage of workers, he and/or she is not considered to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers. This holds whether or not such strike or other labor dispute has been certified by the Secretary of Labor, or whether the Department of Homeland Security (DHS) has been otherwise informed that such a strike or labor dispute is in progress. The alien is subject to the following terms and conditions.
41.59 N8.2--Notification of Denial
(CT:VISA-719; 03-10-2005)
If it is determined that an alien shall be denied a TN visa, or entry to the United States for the grounds stated in INA 214(j) (see 9 FAM 41.59 N8), the applicant must be notified in writing of the reason(s) for the refusal. In addition, CA/VO/L/A must be immediately informed of such denial so that a designated representative of the applicant's home country government may be promptly notified in writing of the reason for the refusal.
41.59 N9--FEES
(TL:VISA-604; 01-22-2004)
The Department of Homeland Security (DHS) will assess a processing fee of $ 50.00 to classify Canadian citizens as NAFTA TN professionals. No fee shall be charged to Mexican citizens.
41.59 N10--LENGTH OF STAY IN THE UNITED STATES
(TL:VISA-604; 01-22-2004)
A Canadian or Mexican citizen seeking admission as a TN professional shall be treated as if seeking classification under INA 101(a)(15), therefore, the INA 214(b) presumption of immigrant intent applies if he fails to meet all the requirements of the TN visa category.
The maximum period of admission of a TN is one year. The admission period of a dependent (TD) shall coincide with the TN principal's. (See 9 FAM 41.59 N5 for definition of ''temporary'').
41.59 N11--PART-TIME EMPLOYMENT
(TL:VISA-604; 01-22-2004)
An alien entering the U.S. in TN status may be employed on a part-time basis.
41.59 N12--CHANGING OR ADDING EMPLOYERS
(TL:VISA-604; 01-22-2004)
a. Aliens in TN status may change or add employers while in the United States by filing Form I-129, Petition for a Nonimmigrant Worker, with the Nebraska service center of the U.S. Citizenship and Immigration Service. He or she must present new documentary evidence, and pay the prescribed processing fee of $ 120.00.
b. A Canadian citizen wishing to change or add employers may also depart the United States and apply for readmission at the Port-of-Entry, using new documentary evidence and paying the required $ 50 fee.
41.59 N12.1--Spouses and Minor Children
(CT:VISA-664; 12-22-2004)
a. Spouses and minor, unmarried children who are accompanying or following to join treaty national (TN) professionals, may be admitted to the United States in the treaty dependent (TD) classification. Dependents are not permitted to accept employment in the U.S. while in TD status. They are, however, permitted to attend school on a full-time basis. There is no processing fee for classifying dependents of Canadian TNs. As with any derivative status, TD applicants must demonstrate a bona fide spousal or parent-child relationship to a TN status holder.
b. Canadians should be able to show a valid Form I-94, Arrival and Departure Record, authorizing their TN status. Aliens normally exempt from visa requirements need not obtain visas.
41.59 N13--VALIDITY OF VISAS FOR TN FAMILY MEMBERS
41.59 N13.1--Mexican or Canadian Family Members
(CT:VISA-664; 12-22-2004)
a. Family members possessing either Mexican or Canadian citizenship should be issued multiple entry visas valid for the maximum period authorized by the reciprocity schedules or for the length of the principal alien's visa and/or authorized period of stay, whichever is less. (See the reciprocity schedules.)
b. Posts are authorized to accept TN qualified applicants up to 90 days in advance of applicants' beginning of employment status as noted on the Form I-797, Notice of Action. Post must inform applicants verbally and in writing that they can only use the visa to apply for reentry to the U.S. starting ten days prior to the beginning of the approved status period noted on their Form I-797. In addition, such visas must be annotated, ''Not valid until (ten days prior to the petition validity date.)''
41.59 N13.2--TCN Family Members Not Possessing Mexican or Canadian Citizenship
(TL:VISA-604; 01-22-2004)
Non-Canadian or non-Mexican family members of TN status holders are entitled to TD visas, which can be issued in non-Canadian or non-Mexican passports. However, only the Canadian and Mexican reciprocity schedules provide data for TN and TD visas. Therefore, the number of entries, fees and validity for non-Canadian or non-Mexican family members of a TN status holder seeking TD visas should be based on the reciprocity schedule of the TN principal alien. For example, a Chinese national married to a Canadian would be issued a TD visa in his or her Chinese passport based on the Canadian reciprocity schedule. In this case the applicant would be the recipient of a visa valid for multiple entries, no fee. However, a Mexican married to a Canadian would be issued a TD visa in his or her Mexican passport valid for multiple entries with a fee of $ 100.00 based on the Mexican reciprocity schedule.
41.59 N13.3--Domestic Servants of TNs
(TL:VISA-604; 01-22-2004)
A domestic servant of a TN who meets the requirements set forth at 9 FAM 41.31 N6.3-3 may be issued a B-1 visa.
41.59 N13.4--Canadians Requiring TN Visas
(TL:VISA-604; 01-22-2004)
In rare cases, posts may need to issue a TN visa to a Canadian. For example, a Canadian without TN status, who resides in a third country with a non-Canadian spouse or family member, and who plans to enter the U.S. as a NAFTA professional simultaneously with the family member(s) will need a TN visa in order to confer derivative (TD) status on his or her dependents. In such cases, the Canadian could not wait to have his or her case adjudicated by the Department of Homeland Security (DHS) at a port of entry, since the non-Canadian dependent would require a visa to board a flight and to apply for entry into the U.S.
41.59 N14--ALIENS SUBJECT TO INA 212(E)
(TL:VISA-323; 10-10-2001)
The two-year home residency requirement for some former J-1 Visa holders applies only to immigrant visa applicants, and to H and L nonimmigrant visa applicants. Thus, TN applicants and their TD family members who are former exchange visitors subject to INA 212(e) are not prohibited from receiving visas and entering the U.S. as NAFTA professionals, even if their professional activities might be similar or identical to those of an H or L recipient.
41.59 N15--DENIAL OF TREATY TRADER OR TREATY INVESTOR STATUS TO CANADIANS OR MEXICANS IN CERTAIN LABOR DISPUTES
(TL:VISA-323; 10-10-2001)
See 8 CFR 214.2(e)(22).
41.59--Procedural Notes
(CT:VISA-658; 10-26-2004) (Office of Origin: CA/VO/L/R)
41.59 PN1--VISA ISSUANCE PROCEDURES
41.59 PN1.1--Evidence of Petition Approval
(TL:VISA-323; 10-10-2001)
a. A Mexican citizen seeking issuance of a TN nonimmigrant visa must be the beneficiary of an approved I-129 petition. Evidence of petition approval may consist of a Form I-797 Notice of Action, or a telephonic, e-mail or telegraphic notice from INS or the Department, of petition approval or the granting of an extension of stay.
b. The computer-generated Form I-797, printed on blue paper and unsigned, must include:
(1) Date of Notice;
(2) Name of petitioner;
(3) Name of beneficiary;
(4) Petition/receipt number;
(5) Expiration date of the petition; and
(6) Name, address, and telephone number of the approving INS office.
c. Questions regarding the bona fides of a particular Form I-797 should be directed to the INS Northern Service Center.
41.59 PN1.2--Single Visa/Multiple Petitions
(TL:VISA-323; 10-10-2001)
If a Mexican citizen is the beneficiary of more than one petition and does not plan to depart from the United States between engagements, consular officers may issue a single TN visa valid for one year, or until the expiration of the last expiring petition, reciprocity permitting. Notations from all petitions should be placed below the visa.
41.59 PN2--STATUS OF PETITION FILED WITH INS
(TL:VISA-323; 10-10-2001)
In general, posts shall not request the Department to provide telegraphic status reports on petitions pending approval with INS, nor shall they contact INS directly for such reports. Posts may suggest, as an alternative, that beneficiaries contact sponsors. In cases involving public relations, post should submit requests to the Department providing justification for such action.
41.59 PN3--NOTIFICATION OF PETITION RECEIPT
(TL:VISA-323; 10-10-2001)
Upon receipt of an approved petition, the post shall inform the beneficiary of the procedure to be followed to apply for a visa.
41.59 PN4--DISPOSITION OF VISA PETITIONS
41.59 PN4.1--When Visa Issued
(TL:VISA-323; 10-10-2001)
If a TN visa is issued, the petition shall be placed in the ''Nonimmigrant Visas Issued'' file.
41.59 PN4.2--When Application Abandoned
If the alien abandons the application, and the petition is still valid, the post shall return the petition to the INS approving office.
41.59 PN4.3--When Visa Refused
(TL:VISA-323; 10-10-2001)
If a visa is refused (unless refused under INA 212(a)(4), (5), (7), or (9)(A) or (B), the petition shall be returned to the INS approving office. If a visa is refused under INA 212(a)(4), (5), (7), or (9)(A) or (B), the petition shall be placed in the refusal file and destroyed with the file in accordance with instructions contained in PART IV, Files.
41.59 PN4.4--When Petition Has Expired
(TL:VISA-323; 10-10-2001)
If the petition has expired, the petition shall be destroyed.
41.59 PN5--VISA ANNOTATIONS
(TL:VISA-323; 10-10-2001)
The visas issued to professionals should be annotated in the same manner as other nonimmigrant visas. In the case of petition-based professional Mexican citizens, the annotation shall include the petition number. All visas should indicate the employer, and more importantly, the NAFTA ''profession'' which formulates the basis for TN status.
41.59 PN6--VISA STATISTICS
(TL:VISA-658; 10-26-2004)
Paragraph 2 of Article 1604 of NAFTA Chapter 16 requires each party to collect, maintain, and make available to the other parties data with respect to occupation, profession, or activity. Posts shall maintain a record of TN issuances by profession to be transmitted to the Visa Office in April and September. The report should be submitted with the semiannual report on a separate sheet and marked for the attention of CA/VO/L/R.
41.59 Exhibit II--CHAPTER 16 OF THE NORTH AMERICAN
FREE TRADE AGREEMENT
(TL:VISA-649; 08-30-2004) (Office of Origin: CA/VO/L/R)
See the North American Free Trade Agreement's Web site.