TN Visa Bulletin - Blog

USCIS Says NAFTA Not Applicable to Commonwealth of the Northern Mariana Islands (CNMI)

2012-05-30T14:23:56Z

In December 2011, I submitted a question to the USCIS Quarterly National Stakeholder Engagement regarding the applicability of NAFTA to the Commonwealth of the Northern Mariana Islands (CNMI) in light of changes to the U.S. immigration laws.

Congress recently approved legislation (Consolidated Natural Resources Act of 2008) to extend U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI). This law also created several transitional visa classifications to temporarily accommodate individuals working in the CNMI during this change. Following the expiration of their transition immigration status (e.g. CW-1 or E-2 CNMI), Canadian and/or Mexican citizens working in the CNMI must change to a visa classification under U.S. immigration law. The natural course for most Canadian or Mexican citizens in this situation would be a TN or E-2 under NAFTA.

However, NAFTA only applies to the customs territory of the United States, which includes the 50 states, the District of Columbia and Puerto Rico. Additionally, according to NAFTA Implementation Cable 010, NAFTA does not apply to the CNMI. Now that U.S. immigration law has been extended to the CNMI, it was unclear whether the policy precluding applicability of NAFTA to the CNMI would change to allow Canadian and Mexican citizens working in the CNMI to file for TN visa status under NAFTA.

In response to my question, USCIS confirmed that the Consolidated Natural Resources Act of 2008 "did not change the limitation of NAFTA to the customs territory of the United States, or place the CNMI within U.S. customs territory for NAFTA or any other purpose." USCIS added that "[w]e neither have made, nor do we anticipate, any policy change that would treat the CNMI differently from Guam and the USVI with respect to availability of NAFTA-based nonimmigrant status." USCIS, National Quarterly Stakeholder Engagement, Q & A (Dec. 2011).

As result, following the transitional period, individuals working in the CNMI would only be eligible for one of the non-immigrant visa classifications enumerated under the INA. They would not be able to take advantage of any of the immigration provisions available under NAFTA such as the TN visa.

TN Visa Petition Approved for Graphic Designer - Digital Media Marketing

2012-05-29T19:33:28Z

Our client in this case, a citizen of Canada, held a post-secondary diploma in Multimedia Design and Production, as well as a post-secondary diploma in Internet Management. He also had approximately twelve (12) years of experience designing digital media marketing communications.

Our office had originally assisted this individual in obtaining TN visa status as a Graphic Designer in 2009. His 3-year TN status was about to expire, and he contacted our firm to prepare his TN extension by mail. Our office prepared the I-129 petition paperwork requesting the TN visa status extension, and packaged the petition with all the required supporting documents (e.g. evidence of TN eligibility, copy of I-94, paystubs).

We filed the I-129 petition with USCIS’ Vermont Service Center on March 30, 2012. The petition was approved about 2-months later on May 24, 2012.

TN Visa I-129 Petition Approved for Graphic Designer in 2 Months

2012-05-23T19:25:25Z

In this case, our client, a citizen of Canada, had been in the U.S. under TN visa status as a Graphic Designer since 2007. When it came time to renew her TN status, our client decided she wanted to extend her TN status by mail rather than by returning to the U.S. border.

Our office prepared the I-129 petition paperwork requesting the TN visa status extension, and packaged the petition with all the required supporting documents (e.g. copy of I-94, paystubs). We filed the I-129 petition with USCIS’ Vermont Service Center on March 14, 2012. The petition was approved about 2-months later on May 18, 2012.

TN Visa I-129 Petition Approved for Software Engineer in 2 Months

2012-05-23T19:18:39Z

In this case, our client, a citizen of Canada, had initially obtained TN visa status for a 3-year period as a Software Engineer at the U.S. border. When it came time to renew his TN status, our client decided he wanted to extend his TN status by mail rather than by returning to the U.S. border.

Our office prepared the I-129 petition paperwork requesting the TN visa status extension, and packaged the petition with all the required supporting documents (e.g. copy of I-94, paystubs). We filed the I-129 petition with USCIS’ Vermont Service Center on March 23, 2012. The petition was approved about 2-months later on May 18, 2012.

J-1 Visa → TN Visa → Green Card (Marriage to USC) – Approved in 84 Days

2012-05-18T14:44:31Z

The applicant in this case, a citizen of Canada, had been working in the U.S. under TN visa status as a Psychologist for several years. The applicant married a U.S. citizen in November 2011. Her TN visa status was set to expire on March 29, 2012.

The applicant contacted our office to assist with the filing of a green card application based on her marriage to a U.S. citizen. Following our review of her case, we believed the applicant was eligible to pursue her green card by filing an adjustment of status (AOS) application.

Two Potential Issues

One of the issues our office was concerned about was ensuring that the applicant received her Employment Authorization Document (EAD) before her TN visa status expired.* Another issue was that the applicant had previously held J-1 visa status in order to attend a psychology internship program. According to the applicant, when she was entering the U.S. under her J-1, there was some confusion as to whether or not the U.S. Department of State or INS (now USCBP) believed she was subject to the 2-year home residency requirement. The applicant no longer had copies of her IAP-66 form (now DS-2019), which would have indicated if she was subject to this requirement.

J-1 Two-Year Home Residence Concerns

Individuals subject to the 2-year home residency requirement cannot file for a green card until they satisfy this residence requirement, or obtain a waiver. The only basis the applicant here could have been subject to the J-1 visa requirement was if she had used her J-1 status to receive graduate medical education or training. Our concern here was that USCIS might have thought that the applicant’s J-1 program involved medical training, and would issue a Request for Evidence (RFE) questioning the applicant’s eligibility to apply for AOS. An RFE would delay the processing of the AOS and the issuance of the EAD card, which could have resulted in a gap of employment authorization.

Since the applicant did not have her IAP-66 forms, we filed FOIA applications to try and get any records that would show she was not subject to the 2-year home residency requirement. We also obtained a letter from the school where the applicant attended her J-1 visa program. This letter explained that the J-1 program involved training only in psychology techniques and procedures, and did not involve any graduate medical education or training. We also included documentation explaining the difference between the training a psychologist receives with that of a psychiatrist, who attends medical school and receives a medical degree.

Filing of AOS

Following completion of the paperwork, our office filed the I-485 Application for Adjustment of Status (AOS) and other forms on January 23, 2012. To avoid abandonment of her AOS application, we advised the applicant to not depart the U.S. at this time. Normally, the Employment Authorization Document (EAD) and Advance Parole (travel) cards are issued within 30-60 days of filing the AOS application. As the applicant’s TN status was to expire soon, and she still had not received her EAD card, yet, our office helped prepare a request for expedited processing of her EAD. However, when the applicant went to the local USCIS office to make this request, the officer informed her that the EAD application was nearly complete. The applicant received her EAD card on March 24, 2012 – 5 days prior to the expiration of her TN.

Interview

On March 12, 2012, our office received the notice scheduling her for the AOS interview for April 9, 2012. The adjudicating officer approved her application the same day of her interview, and informed the applicant that she would be sending the approval notice in the mail that day. The applicant received her actual green card on April 16, 2012.

Apparently satisfied with the documentation we submitted as part of the AOS application, USCIS never issued an RFE on the J-1 visa issue. This was a good thing since the U.S. Dept. of State responded to our FOIA request by stating that it did not have the applicant’s IAP-66 forms on file. As of today, our FOIA requests with USCIS are still pending.

The applicant’s adjustment of status application, like all of these types of cases, was initially processed by the National Benefits Center, and then completed at the applicant’s local USCIS office in Houston, Texas.

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* Once the AOS application was filed, the applicant would not be able to renew her TN visa status due to immigrant intent. She, therefore, would need to rely on the Employment Authorization Document (EAD) received as an ancillary benefit to an AOS application in order to lawfully continue working with her employer.

DOS Discusses TN Visa Stamp 1-Year Validity Rule

2012-05-03T14:08:23Z

In early 2010, the U.S. Department of State adjusted the Mexico Reciprocity Schedule reducing the validity period of most non-immigrant visas issued to citizens of Mexico. As result, citizens of Mexico were only eligible to receive a TN visa stamp from a U.S. Embassy/Consulate for a maximum period of 1-year.

This change led to the incongruous scenario where a Mexican citizen was authorized to travel under his/her TN visa stamp only for a 1-year period, but upon entry to the U.S. could obtain authorization to remain and work in the U.S. for up to a 3-year period. This meant that while such a TN visa worker could remain and work in the U.S. for a 3-year period, he/she generally could not travel after the 1-year expiration of his/her TN visa stamp unless a new TN visa stamp was obtained.

In a recent AILA liaison meeting, U.S. Department of State (DOS) officials from Mexico City explained the reason for this change. See AILA InfoNet Doc. No. 12050245, pg. 9 (Posted 05/02/12). As Mexico issues work permits for American citizens valid for only one year, the DOS stated that U.S. law requires that similar visas for Mexican citizens be limited to one year.*

However, the DOS stated that it had previously approached the Government of Mexico about adjusting their work permit regime, but without success. Id. The DOS also indicated that it will continue to revisit the issue, as such an adjustment would benefit both U.S. and Mexican citizens, and also ease workload on both sides. Id.

*The U.S. government determines the validity period for non-immigrant visas issued to non-U.S. citizens based on the validity period of visas issued to U.S. citizens by the non-U.S. citizen’s country. See INA § 221 (c)

EB-1 Application Approval for TN Visa Worker

2012-04-30T15:07:22Z

Our office has recently obtained approval of an I-140 petition for a TN visa worker (University Teacher) under the First Preference EB-1 green card category for Outstanding Professors. You can read more about this approval on our firm's main website blog.

New Global Business Immigration Practice Guide Published

2012-04-19T20:20:59Z

I'm pleased to announce that my article providing an in-depth look at the TN visa classification has been published by LexisNexis Matthew Bender as part of the Global Business Immigration Practice Guide. The Global Business Immigration Guide is a comprehensive guide not just for U.S. immigration, but serves as a resource for handling business immigration issues all around the world.

The book will be discounted 20% for pre-orders through May 31. Individuals can order at: http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&core=&parent=&catId=31&prodId=70836. The discount code is ABIL20 (enter this code at checkout). International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

CBP May Honor USCIS TN Visa Approval Following Denial at Border

2012-04-12T14:40:00Z

In an earlier post, I discussed the scenario where an individual who received a denial of his/her TN visa application at the border, and who was otherwise admissible to the U.S. under another visa classification (e.g. TD, H-4, or F-1), could take a second bite at the "TN Visa apple" and apply for a TN visa by mail (i.e. a change of status) with USCIS.

In a recent AILA liaison meeting with CBP, the Detroit CBP office stated that if a TN visa application was denied at the border, the applicant could file a TN I-129 petition with USCIS, and CBP would honor USCIS' decision if the agency approved the petition. AILA/Detroit CBP, AILA InfoNet Doc. 12041148 (posted 04/11/2012). However, the Detroit CBP office added that it “always has the authority to review admissibility” and that if it adamantly disagreed with USCIS’ decision to approve the TN visa petition, it would refer the case to a U.S. immigration judge. Id.

This is a standard CBP response, i.e. the agency always feels that it has the authority to revisit a previously approved TN visa application whether the matter was approved at the border, the U.S. Embassy/Consulate, or by USCIS. The question is whether or not CBP exceeds its authority when it denies admission to a previously approved TN visa worker, or revokes that individual’s TN visa status. It is also unsettled as to what manner of relief is available to TN visa workers whose status has been revoked by CBP in this manner.

For example, are such individuals to be placed in removal proceedings before an immigration judge as suggested by the Detroit CBP office? Or is the matter only to be resolved through CBP? The little guidance on this issue is not entirely clear (see, e.g. INS NAFTA Handbook, pg. 127; and Pearson Memo, 05-25-01). The Pearson Memo – the more recently issued guidance – suggests that a hearing before an immigration judge is no longer available in this scenario.

DOL's Revision of Occupational Outlook Handbook May Impact TN Visas

2012-04-04T17:28:42Z

The U.S. Department of Labor (DOL) has recently updated and redesigned its Occupational Outlook Handbook (OOH). Applicants for TN visas (and other non-immigrant visa classifications like the H-1B visa), should review the occupational descriptions provided in the OOH to confirm that any changes do not affect their eligibility.

U.S. immigration officials rely on the OOH in determining whether an applicant possesses appropriate credentials for an occupation. They also refer to the OOH to determine whether a job offer falls within one of the TN occupational categories. If an individual's credentials or job offer are not consistent with the OOH, U.S. immigration officials may question eligibility for TN visa status.

Besides the applicable regulations and guidelines, individuals seeking TN visa status under one of the more problematic TN visa categories such as the Computer Systems Analyst, Management Consultant, or Engineer (Software) categories, should thoroughly review the DOL's revisions to the OOH prior to applying for their TN visas.