As this individual was born in India, he was subject to a significant immigrant visa backlog, and could not complete the green card process. He, therefore, had to file for an extension of his TN visa status. In order to establish eligibility for TN visa status, this individual’s petition would need to show that he continued to meet the temporary entry requirements for TN status despite his approved I-140 petition.
Our office prepared this individuals’s I-129 petition with documentation evidencing that he would not file an application for adjustment of status if an immigrant visa number became available while he was present in the U.S. Instead, the petition documented that he would depart the U.S., and apply for his green card at the U.S. consulate in Montreal.
]]>While I frequently discuss some of the issues USCBP has with TN applications, I do not always have time to write in detail about all the problems I hear about. The following are summaries of some of the issues USCBP has had with TN visa applications at the border. Although I may not provide commentary in every instance, I think information on the reasons or basis of USCBP's denials will still have some value to the readers of this blog.
Unless specified, our office was not involved in the preparation of these TN visa applications.
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]]>However, many individuals who did not receive their original I-797A approval notices were left with only the I-797C courtesy copy approval notice that was sent to the attorney. As result, there was some concern as to whether or not CBP would allow entry to the U.S. for individuals who only possessed this courtesy copy approval notice.
CBP has recently announced that individuals (e.g. Canadian TN visa workers who had filed for an extension of TN status, or change to TN status) who have only an I-797C courtesy copy approval notice may still be admitted to the U.S. by presenting this document. AILA / CBP Meeting, Nov. 9, 2011, AILA InfoNet Doc. 12020166 (Posted 02/01/12).
]]>As discussed here previously, whenever there is a discrepancy between a position's job title and the proposed TN occupational category, CBP frequently will deny the application without fully assessing the position's job duties. This is in direct conflict with decisions from USCIS' Administrative Appeals Office, which have stated that the duties of the position, rather than the job title, determine whether the position is a professional occupation under the terms of the NAFTA. See, e.g. In re X., LIN 03 026 507092 (AAO 03-11-2004).
In response to AILA's inquiry, CBP's Office of Field Operations explained that border officers must conduct a complete interview of applicants seeking admission under TN visa status. AILA / CBP Meeting, Nov. 9, 2011. While not explicitly stating that job titles do not govern eligibility, CBP did state that officers will evaluate an applicant's proposed job duties and activities in the U.S. CBP mentioned that a denial may occur if an individual is unable to explain his/her intended activities, or if there is a discrepancy between the duties described by the applicant during inspection and the duties described in the prospective employer's support letter.
AILA also expressed concern over the handling of TN visa applications involving supervisory or managerial duties, or for those working in support of sales activities. Individuals with job titles suggesting supervisory or managerial positions, or sales positions are a lightning rod for denials as CBP believes these are indicative of a position not eligible for TN classification. AILA pointed out that individuals with job titles as, e.g., "engineering manager" or "sales engineer" who still performed engineering duties should still qualify for TN visa status. CBP replied that in such instances an applicant's employer support letter should distinguish between the occupation and the job title in order to establish eligibility for TN visa status.
]]>"One condition of approval for TN status is the individual must establish to the inspection CBP officer that he or she meets the general requirements for nonimmigrants under 8 CFR 214.1 (a)(3), which include a foreign residence that he or she has not abandoned."
I thought for a TN there was no requirement to maintain a foreign residence. Did this recently change or is the help article incorrect?
Reply: I would say that this article is not entirely accurate.
There is a temporary entry requirement to the TN visa classification, but no specific foreign residence requirement. See, e.g. 9 FAM 41.11 N2.1 (stating that “[o]nly the following visa categories are subject to residence abroad requirements: B, F, H (except H-1), J, M, O-2, P, and Q.”).
Many immigration officers incorrectly interpret the temporary entry requirement to require that an applicant maintain a foreign residence. However, the laws and regulations governing the TN visa classification have no such requirement. See, e.g. 8 CFR 214.6 (b) for a definition of “temporary entry.”
In cases where one’s intent is questioned, however, evidence of a residence abroad can help establish to U.S. immigration authorities that an individual meets the temporary entry requirements for TN visa status.
]]>In practice, however, the processing information posted is frequently outdated and/or inaccurate. For example, today I received approval notices for two I-129 petitions requesting an extension of TN visa status for two individuals. These petitions were both filed with the Vermont Service Center on December 19, 2011. The approval notices indicate that the petitions were approved on January 12, 2012. These petitions then were adjudicated in about 24 days.
The Vermont Service Center’s processing time information listed for I-129 petitions requesting TN status was posted on USCIS’ website on November 14, 2011. However, the information listed is purportedly “as of September 30, 2011.” According to its chart, the last TN I-129 petition processed by the VSC on the date the web page was last updated was filed on May 29, 2011. All this data tells us, I believe, is that the VSC was processing TN I-129 petitions in about 4 months’ time – back in September 2011. For those of us filing petitions in January 2012 this is not very helpful information.
Given the uncertainly of processing times, and the not always accurate information posted by USCIS, I generally advise clients to expect to receive a decision on a TN I-129 petition in about 4-6 months. In fact, it was only last month that one of my TN extension petitions took this long to adjudicate. I suppose that the only way to obtain some measure of certainty on a TN I-129 petition is to request premium processing where USCIS must make a decision within 15 calendar days.
]]>The applicant had previously attempted to enter the U.S. as a visitor, but was denied entry because the inspecting officer believed that the applicant required employment authorization to perform his consulting duties in the U.S. This individual then contacted our office for assistance. We reviewed his case, and concluded that his proposed consulting work and credentials qualified for TN visa status in the category for Management Consultants.
The applicant’s proposed consulting services fell within the definition of a Management Consultant as provided in the Legacy INS NAFTA Handbook as he would be advising the U.S. company’s management on how to develop and advance its drug program. He would also be engaged as an independent contractor, and therefore met the employment relationship requirement for a Management Consultant. The individual also qualified for TN status as a Management Consultant based on his possession of a PhD in Immunology and Bachelor’s degree in Chemistry, and his over 25 years of experience in the field.
Our office prepared a detailed application that demonstrated the applicant’s business activities as a Management Consultant, and his qualifications for TN status under the category for Management Consultants. We also provided an explanation on how the applicant’s case satisfied the regulations and requirements for TN status as a Management Consultant.
The applicant submitted these materials at a U.S. port-of-entry and was approved for TN status for a 3-year period.
]]>Reply: Extended time in the U.S. including 5 years under TN visa status may suggest to USCIS that a TN visa worker no longer meets the temporary entry requirements for the TN visa classification. However, there is no bright-line test as to whether USCIS will scrutinize a petition on this issue.
I have seen USCIS issue a Request for Evidence (RFE) that a TN visa worker still meets the temporary entry requirements for TN visa status in similar scenarios. In one case, a worker had held TN status for 9 years after holding L-1 status for 2 years. USCIS issued an RFE seeking proof of the temporary need for the TN visa worker, and also a statement from the worker regarding his plans for departure from the U.S.
This particular RFE was issued in 2009. At that time, many other immigration practitioners had received similar RFEs. Since then, I believe the rate of issuance of these types of RFEs have subsided. Nevertheless, TN visa workers should be prepared to respond to an RFE on how their protracted employment in the U.S. still meets the temporary entry requirement for the TN Visa classification (e.g. new project work, no offer of permanent employment in the U.S., ties to Canada, etc.).
]]>In a recent liaison meeting with AILA, the USCIS Service Center Operations office has stated that about 30% of Request for Evidence (RFEs) in family-based AOS applications are issued for missing I-864, Affidavit of Support and I-693, Medical Examination forms. AILA NY Ch. / USCIS Meeting, Nov. 2011, AILA InfoNet Doc. No. 11122844 (Posted 12/28/11).
A U.S. citizen filing an AOS green card application on behalf of his/her TN visa worker spouse must meet certain income requirements and submit an I-864, Affidavit of Support as part of the AOS application. Not filing, or improperly filing an Affidavit of Support, will result in a delay in the processing of the AOS application as USCIS will issue an RFE to address the Affidavit of Support issue. The issuance of an RFE will also delay the processing of the employment authorization (I-765) and travel authorization (I-131) applications the TN visa worker would have filed as part of the AOS application. USCIS will hold these applications in abeyance until USCIS receives a response to the RFE.
As TN visa workers who file for AOS cannot travel until they receive their advance parole, or continue working after their TN I-94 expires until they receive their employment authorization, such a delay can lead to the temporary inability to travel or continue employment. These potential restrictions underscore the importance of ensuring that all aspects of an AOS application including the Affidavit of Support requirements are properly prepared.
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