News Article Illustrates the Enforcement Focused Environment at the Border

Applications for TN visa status under NAFTA filed at the border have become increasingly difficult and subject to heightened (and often misguided) standards. Not only can we confirm this by our increased case load of TN denials, but the media has now noticed the U.S. border’s heavy handed approach to TN applications.

A article published earlier this week reports on the case of Kevin Gibbons, an individual who had worked under TN status as a Scientific Technician since 1995. After a visit to family in Canada in July 2007, U.S. border inspectors denied Gibbons re-entry to the U.S. despite his possession of a valid TN I-94.

The border alleged that Gibbons needed a new waiver for his 30-year-old marijuana conviction (generally a conviction relating to a controlled substance will render an individual inadmissible to the U.S. unless he or she qualifies for an exception or obtains a waiver). Gibbons maintained that he had secured a permanent waiver for this conviction. Presumably, Gibbons possessed a legacy INS issued Border Crossing Card, which had documented his waiver of inadmissibility. As result of a 1996 law, INS invalidated all BCCs after October 2001. However, according to the 2001 INS notice invalidating the BCCs, INS purportedly did not invalidate the underlying non-immigrant waiver and stated that it would continue to admit individuals with such waivers. It appears U.S. immigration is now requiring these individuals to file for new waivers. Gibbons did just that, and received an approval.

When he subsequently applied for another TN, the border inspector denied his application alleging that Gibbons no longer qualified for the Scientific Technician category. The inspector alleged that Gibbons now needed a university degree for his TN. Gibbons also attributed his denial to a protectionist rationale. This perception was confirmed by a spokesperson from CBP, who stated that CBP has “a commitment at the border to protect the American job market.”

Gibbons’ case illustrates the current enforcement laden environment at the border today. Ever since 9/11 and the creation of the Department of Homeland Security (“DHS”), applications for TN status filed at the border have become subject to heightened and often misguided standards. Our office has observed a litany of problems surrounding the adjudication of TNs in this new environment.

In an article to be published in AILA’s Immigration & Nationality Law Handbook (AILA 2008-09 Ed.) later this spring, Hot Issues in the Wild West of TN Border Applications, we address some of the recurring issues surrounding TN adjudications. One issue addressed in this article is the problem facing TN applications under the Sci/Tech category. Like the Gibbons case, we’ve seen many Sci/Tech denials where CBP required a specific educational requirement. I can’t speak specifically about the reasons for Gibbons’ denial, but the regulations are clear that there is no specific educational credential required. A legacy INS Memo on the subject only suggests that an applicant “should have…at least two years of training in a relevant educational program.”

Not discussed in our article, but worthy of its inclusion, are TN denials based on protectionist rationales for the purposes of protecting the American job market. This basis is contrary to the provisions of NAFTA.

The purpose of the NAFTA immigration provisions was to “reflect the special trading relationship now established between the United States, Canada, and Mexico, and recognize the desirability of facilitating temporary entry on a reciprocal basis and of establishing transparent criteria and procedures for such temporary entry.” 58 FR 69205, 69205 (Dec. 30, 1993). The NAFTA parties did recognize “the continued need to ensure border security while protecting the domestic labor force and permanent employment in all three countries.” Id. As result, a TN applicant cannot intend to establish permanent residence in the U.S. and must satisfy the inspecting officer that the proposed stay is temporary and has a finite end. See 8 C.F.R. § 214.6 (b). Additionally, each party may deny a TN application where the entry of that person may adversely affect the settlement of any labor dispute or would adversely affect the employment of any person involved in the dispute. 8 CFR § 214.6 (k).

CBP cannot deny a TN application based on vague labor market protectionist theories. The two grounds available to them are under sections 214.6 (b) and (k). There is no requirement under NAFTA that an employer test the labor market to ensure there are no willing or able U.S. workers for a position before hiring an individual under TN status. The purpose of NAFTA is to facilitate entry. The regulations clearly outline the instances where an application can be denied to protect the domestic labor force of each NAFTA country. Unless an application falls under one of these prohibitions, CBP abuses it authority by denying an application under a vague labor force protectionist ground.