NAFTA Handbook (November 1999).
SECTION FIVE Canadian TN Nonimmigrant pursuant To NAFTA
Requirements for Admission for the TN classification as a Professional.
INS Manuals 46
46 Scope
The NAFTA professional is unique to the North American Free Trade Agreement (the NAFTA). The classification is not found in general immigration provisions in section 101(a)(15) of the INA; rather, it is included in section 214(e) of the INA. Under NAFTA, a Canadian or Mexican citizen who seeks temporary entry into the United States as a professional may be admitted to the United States under the provisions of the NAFTA as a TN (for Trade NAFTA). The TN is limited to Canadian or Mexican professionals employed on a professional level. A professional is defined as a business person seeking entry to engage in a business activity at a professional level in a profession set forth in Appendix 1603.D.1 to Annex 1603, if the business person otherwise qualifies under existing, general immigration requirements for temporary entry into the United States.
The NAFTA professional is modeled on the professional category in the predecessor trade pact, the United States-Canada Free-Trade Agreement (CFTA), which was in effect from January 1, 1989 until the entry into force of the NAFTA on January 1, 1994. The provisions differ slightly for Canadian citizen applicants and Mexican citizen applicants. Presently, the number of Mexican citizens entering the United States as TN professionals under NAFTA is limited to 5,500. There is no numerical limitation on the number of Canadian citizen TN professionals.
As with the CFTA, admission as a TN under section 214(e) of the INA does not imply that the citizen of Canada or Mexico would otherwise qualify as a professional under sections 101(a)(15)(H)(i)(b) or 203(b)(3) of the INA. Note too that Section D of Annex 1603 does not authorize a professional to establish a business or practice in the United States in which the professional will be self-employed. Section D of Annex 1603 is limited to the entry of a citizen of a Party country seeking to render professional-level services for an entity in another Party country.
Self-employment also clearly conflicts with the intent of the NAFTA Implementation Act and its accompanying Statement of Administrative Action, which states, at page 178, ''Section D of Annex 1603 does not authorize a professional to establish a business or practice in the United States in which the professional will be self-employed.'' In this regard, Section B of Annex 1603, which deals with ''traders and investors,'' establishes the appropriate category of temporary entry for a citizen of a Party country seeking to develop and direct investment operations in another Party country. Canadian or Mexican citizens seeking to engage in self-employment in trade or investment activities in the United States, therefore, must seek classification under section 101(a)(15)(E) of the INA.
Although the issue of self-employment was never specifically addressed under the regulations promulgated by the INS pursuant to the CFTA Implementation Act, the bar on establishment of a business or practice in which the professional will be self- employed is consistent with the intent of the United States and Canada in entering into the CFTA. Since entry into NAFTA was not intended to substantively change the treatment of professionals, this explicit bar merely clarifies existing law.
Note that the bar on establishment of a business or practice in which the Canadian or Mexican citizen will be self-employed is in no way intended to preclude a Canadian or Mexican citizen who is self-employed abroad from seeking entry to the United States pursuant to a pre-arranged agreement with an enterprise owned by a person or entity other than him/herself located in the United States. On the other hand, a Canadian or Mexican citizen is precluded from entering this country in TN classification for the purpose of rendering pre-arranged services for a U.S. corporation or entity of which he or she is the sole or controlling shareholder or owner or over which he or she holds de facto control.
(B) Pre-arranged Professional Services. In order to obtain ''TN'' classification, a businessperson, including one who is self-employed, must be seeking entry to render pre-arranged professional services to an individual or an enterprise. If the business activities are to be rendered to an individual or an enterprise, the enterprise must be substantively separate from the businessperson seeking entry. Moreover, the business activities must not include establishment of a business or practice or any other type of activity in which the businessperson will be self-employed in the United States.
As used above, to constitute pre-arranged professional services, there must exist a formal arrangement to render professional service to an individual or an enterprise in the United States. The formal arrangement may be through an employee-employer relationship or through a signed contract between the businessperson or the businessperson's employer and an individual or an enterprise in the United States.
(C) Enterprise for Which the Professional Activities are to be Performed in the United States. The enterprise in the United States for which the business activities are to be performed can take any legal form (as defined in Article 201 of the NAFTA), that is, ''any entity entirely constituted or organized under applicable law, whether or not for profit, and whether privately- owned or government-owned, including any corporation, trust partnership, sole proprietorship, joint venture or other association.''
(D) Substantively Separate from the Business Person Seeking Entry as NAFTA Professional. A businessperson is ineligible for classification as a NAFTA Professional if the enterprise in the United States offering a contract or employment to the businessperson seeking entry is a sole proprietorship operated by that businessperson. Moreover, even if the receiving enterprise is legally distinct from the businessperson, such as a corporation having a separate legal existence, entry as a NAFTA Professional must be refused if the receiving enterprise is substantially controlled by that businessperson.
(E) Substantial Control. Whether the businessperson ''substantially controls'' the U.S. enterprise will depend on the specific facts of each case. The following factors, among others, are relevant in determining what constitutes substantial control:
- whether the applicant has established the receiving enterprise;
- 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);
- whether the applicant is the sole or primary owner of the business; or
- whether the applicant is the sole or primary recipient of income of the business.
(F) Establishment of a Business in Which the Professional Will be Self-Employed in the United States. The following factors, among others are relevant in determining whether the business person will be self-employed in the United States:
- incorporation of a company in which the business person will be self-employed;
- 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
- 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 business person will be self-employed in the United States:
- responding to unsolicited inquiries about service(s) which the professional may be able to perform; or
- establishing business premises from which to deliver pre-arranged service to clients.
Appendix 1603.D.1 to Annex 1603 of the NAFTA. Under NAFTA, an applicant seeking classification as a TN must demonstrate business activity at a professional level in one of the professions or occupations listed in Appendix 1603.D.1 to Annex 1603. Appendix 1603.D.1 (which replaces Schedule 2 to Annex 1502.1 of the CFTA) is set forth at 8 CFR 214.6(c). A Baccalaureate (bachelor's) or Licenciatura degree is the minimum requirement for these professions unless an alternative credential is otherwise specified.
A footnote to Appendix 1603.D.1 allows for temporary entry to perform training functions relating to any of the cited occupations or profession, including conducting seminars. However, these training functions must be conducted in the manner of prearranged activities performed for an U.S. entity and the subject matter to be proffered must be at a professional level. The training function does not allow for the entry of a businessperson to conduct seminars that do not constitute the performance of prearranged activities for an U.S. entity.
The terms ''state/provincial license'' and ''state/provincial/federal license'' means any document issued by a state, provincial, or federal government, as the case may be, or under its authority, but not by a local government, that permits a per-son to engage in a regulated activity or profession.
A ''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. A ''Post Secondary Certificate'' means a certificate issued, on completion of two or more years of post secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.
The following notes relate to NAFTA TN admissions in specific occupations:
(A) A business person in the category of ''Scientific Technician/ Technologist'' must be seeking temporary entry for work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics. These occupations do not ordinarily require a baccalaureate. Supporting documents could be an attestation from the prospective U.S. employer or the Canadian employer, or other documents establishing the individual possesses the skills set forth in Appendix 1603.D.1.
(B) A business person in the category of ''Medical Laboratory Technologist (Canada) /Medical Technologist (Mexico and the United States)'' 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.
(C) Foreign medical school graduates seeking temporary entry in the category of ''Physician (teaching or research only)'' may not engage in direct patient care. Patient care that is incidental teaching and/or research is permissible. 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 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.
(D) Registered nurses must demonstrate eligibility by providing a provincial or state license or Licenciatura degree. However, in order to be admitted the registered nurse must present a permanent state license, a temporary state license, or other temporary authorization to work as a registered nurse, issued by the state nursing board in the state of intended employment. Registered nurses holding temporary state licenses or other temporary state authorization shall not be required to show they have passed the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS). Admission of nurses should not be limited to the expiration date of either document.
(E) Sylviculturists and foresters plan and supervise the growing, protection, and harvesting of trees. Range managers manage, improve, and protect rangelands to maximize their use without damaging the environment. A baccalaureate or Licenciatura degree in forestry or a related field or a state/provincial license is the minimum entry requirement for these occupations.
(F) Disaster relief insurance claims adjusters must 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.
(G) Management consultants 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. 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 an 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. Canadian or Mexican citizens may qualify as management consultants by holding a Baccalaureate or Licenciatura degree or by having five years of experience in a specialty related to the consulting agreement.
(H) 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 that meet those needs. Although the systems analyst will do some programming, the TN category has not been expanded to include programmers.
(I) Hotel Managers must possess a Baccalaureate or Licenciatura degree in hotel/restaurant management. A post-secondary diploma in hotel/restaurant management plus 3 years of experience in the field will also qualify.
(J) Animal and Plant Breeders breed animals and plants to improve their economic and aesthetic characteristics. Both occupations require a Baccalaureate or Licenciatura degree.
(3) Qualifications. The NAFTA professional must meet the following general criteria:
- Be a citizen of Canada
- Be engaged in professional-level activities for an entity in the United States. Only those professional-level activities listed in Appendix 1603.D.1 to Annex 1603 are covered under the NAFTA. The applicant must establish that the professional-level services will be rendered for an entity in the United States. The NAFTA professional category is not appropriate for Canadian citizens seeking to set up a business in the United States in which he or she will be self-employed.
- Be qualified as a professional. The applicant must establish qualifications to engage in one of the activities listed in Appendix 1603.D.1. The Minimum Education Requirements and Alternative Credentials are listed in the Appendix for each professional-level activity. The regulation requires that degrees, diplomas, or certificates received by the TN applicant from an educational institution outside of the United States, Canada, or Mexico must be accompanied by an evaluation by a reliable credentials evaluation service that specializes in such evaluations. Experiential evidence should be in the form of letters from former employers. If the applicant was formerly self-employed, business records should be submitted attesting to that self-employment.
- Meet applicable license requirements. To practice a licensed profession, Canadian entrants must meet all applicable requirements of the state in which they intend to practice.
- Be in the United States temporarily. The NAFTA professional must establish that the intent of entry is not for permanent residence.
(4) Application Process.
Citizens of Canada. A citizen of Canada may apply for entry to the U.S. as a NAFTA professional at major land border ports-of-entry, airports handling international flights, or at the airports in Canada where the Service has established a pre-clearance/pre-flight station. The applicant must submit documentary proof that he or she is a citizen of Canada. Such proof may consist of a Canadian passport or birth certificate together with photo identification. No visa is required for entry, but the applicant may seek visa issuance if desired.
The application for entry as a TN must be made to an immigration officer. There is no written application, and no prior petition, labor certification, or prior approval is required for Canadian citizens applying for admission to the U.S. in TN status. Documentation from the prospective employer in the U.S., or from the foreign employer, must include the following:
- A statement (in the form of a letter or contract) of the professional-level activity listed in Appendix 1603.D.1, in which the applicant will be engaging and a full description of the nature of the job duties the applicant will be performing, the anticipated length of stay, and the arrangements for remuneration;
- Evidence that the applicant meets the educational qualifications or alternative credentials for the activity listed in Appendix 1603.D.1; and
- Evidence that all licensure requirements, where required by state or local law, have been satisfied.
(5) Terms of Initial Admission.
(A) Canadians. A Canadian citizen who qualifies for admission under the NAFTA in the TN classification must remit the fee prescribed in 8 CFR 103.7 (presently $ 50.00 US) upon admission. Issue the applicant a Service fee receipt (Form G-211, Form G-711, or Form I-797) and a multiple entry Form I-94 showing admission in the classification TN for the period requested not to exceed 1 year.
At the time application for admission, the citizen of Canada will be subject to inspection to determine the applicability of section 214(b) of the Act (presumption of immigrant intent) to the applicant.
(6) Procedures for Readmission.
(A) Canadians. A Canadian citizen eligible for TN classification may be readmitted to the U.S. for the remainder of the period authorized on his or her Form I-94, without presentation of the letter or supporting documentation described above, provided that the original intended business activities and employer(s) have not changed. If the Canadian citizen is no longer in possession of a valid, unexpired Form I-94, the applicant must pre-sent substantiating evidence. Substantiating evidence may be in the form of a Service fee receipt for admission as a TN, a previously issued TN admission stamp in a passport, and a confirming letter from the U.S. employer(s). Upon readmission, issue a new multiple entry Form I-94.
(7) Extension of stay.
Canadians. A citizen of Canada admitted pursuant to NAFTA may seek an extension of stay as a TN through the filing of a Form I-129 by the U.S. employer with the Nebraska Service Center. No Department of Labor certification requirements apply to a Canadian citizen in TN status who is seeking to extend that status. The applicant must be in the U.S. at the time of filing the extension request. Provision is made for port-of-entry notification should the applicant depart the U.S. during the pendency of the application. An extension may be granted for up to 1 year.
A citizen of Canada is not precluded from departing the U.S. and applying for admission with documentation from a U.S. employer (or foreign employer, in the case of a Canadian citizen who is seeking to provide prearranged services at a professional level to a U.S. entity) which specifies that the applicant will be employed in the U.S. for an additional period of time. The applicant must meet the evidentiary requirements outlined above and the prescribed fee must be remitted upon admission.
Limitations. At the present time, there is no specified upper limit on the number of years a citizen of Canada may remain in the U.S. in TN classification, as there is with most of the other nonimmigrant classifications. However, section 214(b) of the Act is applicable to citizens of Canada who seek an ex-tension of stay in TN status and applications for extension or readmission must be examined in light of this statutory provision.
Except as limited by section 248 of the Act, a citizen of Canada who is currently in the U.S. in another valid classification is not precluded from requesting a change of status to TN. If such applicant is in the U.S. as an H-1 or L-1, he or she may be changed to TN status if otherwise eligible, without regard to the maximum time limits for those classifications. A Canadian J nonimmigrant who is subject to the 2-year foreign residence requirement may not change to TN classification, but may leave the U.S. and seek readmission as a TN.
(8) Request for change/additions of U.S. employers. A Canadian citizen may change or add employers while in the U.S. through the filing of Form I-129 at the Nebraska Service Center. All documentary requirements pertaining to a citizen of Canada outlined above must be met. Employment with a different or with an additional employer is not authorized prior to INS approval of the petition. Alternatively, the Canadian citizen may depart the United States and apply for reentry for the purpose of obtaining additional employment authorization with a new or additional employer. Documentary requirements outlined above must be met and the prescribed fee must be remitted upon readmission. No action is required by a Canadian citizen who is transferred to another location by the U.S. employer to perform the same services. An example of such an acceptable transfer would be to a branch or office of the employer. If the transfer is to a separately incorporated subsidiary or affiliate, Form I-129 must be filed.
(9) Spouse and unmarried minor children. The spouse and unmarried minor children who are accompanying or following to join a TN professional, if otherwise admissible, are to be accorded TD (Trade Dependent) classification. These are required to present a valid, unexpired nonimmigrant visa unless otherwise visa-exempt under 8 CFR 212.1. (Those persons who are normally exempt from nonimmigrant visa requirements include citizens of Canada and Landed Immigrants of Canada having a common nationality with Canadian citizens).
There is no requirement that the TD dependent be a citizen of Canada or Mexico.
No fee is required for admission of dependents in TD status (except the fee for the I-94) and they are to be issued multiple entry Forms I-94.
A TD spouse or child is not authorized to accept employment while in the U.S. in such status. Dependents in TD status may attend school in the U.S. on a full-time basis as such attendance is deemed incident to status.
(10)Denial. In the event a Canadian citizen applying for admission pursuant to NAFTA cannot demonstrate to the admitting officer that he or she satisfies the TN documentary requirements, the Canadian citizen should be offered a hearing before an immigration judge provided the applicant is confident he or she, in fact, meets the requirements pursuant to the NAFTA, Appendix 1603.D.1 The request for a hearing is equivalent to a TN appeal or a reconsideration of the admitting officer's decision.
SUMMARY
CANADIAN TN PROCESSING INSTRUCTIONS
The application for entry as a TN must be made in person to an immigration officer at a port of entry. There is no writ-ten application, and no prior petition, labor certification, or prior approval may be required for Canadian citizens applying for admission to the U.S. in TN status. Documentation from the prospective employer in the U.S. must include the following:
- A statement (in the form of a letter or contract) of the professional-level activity listed in Appendix 1603.D.1, in which the applicant will be engaging and a full description of the nature of the job duties the applicant will be performing, the anticipated length of stay, and the arrangements for remuneration;
- Evidence that the applicant meets the educational qualifications or alternative credentials for the activity listed in Appendix 1603.D.1; and
- Evidence that all licensure requirements, where required by state or local law, have been satisfied.
- Evidence of Canadian citizenship or oral declaration (if satisfied)
- Applicant must be otherwise admissible
Perform all database checks.
Collect fee: $ 50.00; issue fee receipt (G-211).
Admit on I-94 for period of agreement up to one year.
I-94 Departure copy: admission stamp annotated TN - stamp ''Multiple Entry''
I-94 Arrival copy: reverse annotated with employer and occupation (It is very important to capture occupation in-formation. INS has the obligation under NAFTA Article 1604.2 to share data specific to each occupation, profession or activity, with Canada and Mexico.)
Spouse and child are admitted TD for same period of time as TN; if they are not visa exempt they need an NIV issued by a U. S. Consulate or Embassy.
The information on the following page should be printed as a handout when admitting TN professionals. Please enter the name and telephone number of the port of entry.
Information About Your Admission as a TN Professional
You have been admitted to the United States as a Professional (TN) pursuant to the provisions of the North American Free Trade Agreement (NAFTA). You have been issued Form I-94 (Departure Record) that is stamped ''multiple entry'', showing the period of time for which you have been admitted. This is your employment authorization and you must retain it for the duration of your status as written on the admission stamp. You must present the I-94 each time you apply for readmission. When your employment terminates in the United States, you are required to depart the United States and return the I-94 to the Immigration and Naturalization Service.
Your dependents, if following to join you, will have to present copies of your entry documents, proof of citizenship and evidence of a legal relationship (i.e. marriage certificate, long form birth certificate) which entitles them to be properly classified as dependents (TD) of a TN professional. If they are not Canadian citizens or if they are not exempt a nonimmigrant visa, they will be required to present a TD nonimmigrant visa issued at a U.S. Embassy or Consulate.
As a TN, you are NOT authorized to:
1) Accept employment with any employer other than the employer for whom you were admitted to work, unless you receive permission from INS.
2) Continue to work or remain in the United States after your period of authorized stay has expired.
You may extend your status inside the United States by applying for an extension of stay on form I-129. You must file the I-129, and prescribed fee, with the Nebraska Service Center prior to the expiration of your current status. You must be physically present in the United States at the time of filing the extension of stay. Your application for extension also includes your dependents.
You may also depart the United States and apply for readmission. This is considered a new application and you will be required to present a current letter from your employer and all supporting documentation just as you did on your initial entry. You will also be required to pay the $50.00 processing fee. Your dependents will be required to accompany you in order to be properly readmitted.
For readmission to the United States after travel outside of the Western Hemisphere, you should present a copy of your I-94, the receipt for the processing fee and a copy of the letter from your employer that you presented to gain admission as a TN.
If you have any questions concerning your status or admission, you may contact the United States Immigration & Naturalization Service at _________________, telephone _________________.
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Attorney Caveat: The NAFTA Handbook was published in 1999 and in some areas does not accurately reflect current U.S. immigration laws, regulations or policies. It is posted here solely for informational purposes only. Please consult with a U.S. immigration attorney before acting upon the information provided in this document.
Contact Immigration Attorney Brian D. Zuccaro for answers to your NAFTA TN visa questions.