Reply: This is a frequent mistake made by USCBP border officers who are not familiar with TN visa status. There are three types of TN visa approval documents, which may be used for re-entering the U.S. under TN visa status:

• A TN visa stamp affixed to an individual’s passport, which is obtained by filing a DS-160 application at a U.S. consulate. (Citizens of Mexico must first obtain a visa stamp, and then an I-94 card is issued at the border.)
• An I-797 approval notice, which is only obtained by filing an I-129 petition by mail with USCIS. An I-797 approval notice for TN status will have an I-94 "card" located at the bottom. (Mexican or Canadian citizens may file an I-129 petition). 
• An I-94 card, which is obtained at the U.S. border after filing an application for initial TN status. (Only Canadian citizens may apply for TN status at the border.)

An I-797 approval notice is not a necessity for re-entry to the U.S. under TN visa status. For Canadian citizens, the main document required for re-entry is an I-94 card. See 8 CFR s. 214.6 (g) (1).  A citizen of Canada may enter the U.S. under TN visa status by presenting either an I-797 approval notice (with the I-94 at the bottom), or an I-94 card. Either document will suffice.

Reply: Individuals should be cautious about obtaining an ownership interest in the company that has petitioned them for TN visa status.

The TN visa classification has a rule against self-employment, which generally means that an individual cannot obtain a TN through a company that he/she either solely owns, or substantially controls. See 8 C.F.R. s. 214.6 (b); and NAFTA Handbook. An individual may argue that he/she does not run afoul of this provision if he/she possesses only a minority interest in the company and lacks authority over the company’s actions.

However, applications where the applicant has an ownership interest in the petitioning company have a high denial rate. In fact, many immigration officers – improperly I might add – consider any ownership interest in the TN petitioner as improper.

The applicant is, of course upset, and incredulous because he/she has obtained TN visa status for this type of position and/or has relied upon these credentials in the past without any issue. Many times an individual is denied a TN at the very same port-of-entry that approved the individual’s TNs in the past. Now the individual’s job opportunity is at risk, and his/her subsequent travel to the U.S. will now be subject to greater scrutiny.

This is the nature of the TN visa classification, and an extremely common occurrence. Each application is treated as a new one. A prior officer’s determination of eligibility has little or no bearing on how a subsequent officer will adjudicate an application. The risk for denial despite prior approvals is especially high for the more difficult TN visa classifications like the Management Consultant, Computer Systems Analyst, and Scientific Technician categories.

Individuals must, therefore, prepare each application with the same diligence and thoroughness as if applying for a TN for a first time. Individuals can avoid a potential denial by preparing a detailed application, and possessing sufficient supporting documentation to establish eligibility for TN visa status. Taking the following steps will help applicants avoid issues with initial and subsequent TN visa applications.

• All applicants should have an employer support letter with specific, detailed job duties, and that explains the appropriateness of the applicant’s credentials for the TN category.
• All applicants should be prepared for their interview. They should know their job duties, and be ready to advocate how their job or credentials qualify for the TN. Applicants should also ensure that the employer is ready for a phone call from CBP, and can adequately explain the nature of the job offer.
• Individuals with degrees not specifically in the TN category should have on hand secondary materials like the Occupational Outlook Handbook to show the relevancy of the degree to the TN category.
• Individuals seeking TNs in the more difficult TN categories, or who have non-standard job titles should also have on hand the OOH and other documentation to show how the position falls under the TN category.

Reply: Even if they were available now, I do not believe that an H-1B visa is necessary in this scenario. The TN visa classification does provide work authorization under the Registered Nurse occupational category. The regulations do not provide much guidance on the types of duties permitted under the TN visa occupational categories. Under immigration law, to determine the parameters of a TN visa occupation, reference may be made to the U.S. Department of Labor’s Occupational Outlook Handbook (OOH).

A review of the OOH entry for Registered Nurses reveals that a variety of positions within this occupation including Cardiovascular Nurses, Critical Care Nurses, and Neonatology Nurses. The OOH also has information on “[a]dvanced practice registered nurses,” which include “Clinical Nurse Specialists,” “Nurse Anesthetists,” “Nurse-Midwives,” and “Nurse Practitioners.’ Based on the OOH’s inclusion of Nurse Practitioners within its definition of the Registered Nurse occupation, I believe that a Nurse Practitioner position may be classified under the TN visa category for Registered Nurses.

As with all visa applications, the burden is always on the applicant to establish his/her eligibility for TN visa status. See INA § 291. In instances where a position’s job title is not an exact match to the TN visa occupational category, as this type of application would be, the applicant must provide supporting documentation like the OOH to confirm that the position may be classified under the Registered Nurse TN visa category.

If an individual requires a paper copy of his/her I-94 card, e.g. to present as evidence of employment authorization for I-9 purposes, or if filing an I-129 petition for an extension of TN visa status, he/she can print out a copy of the I-94 at www.cbp.gov/I94. In order to access his/her I-94 card from this web site, the individual will be required to enter information from his/her passport.

At this time, CBP is only implementing this automated process for individuals arriving at air and sea ports of entry. The agency plans to expand the automation of the Form I-94 to other methods of transportation in the future.

Reply: According to information obtained from the U.S. Consulate Ciudad Juarez, consular officers must still make an independent evaluation of a DS-160 TN visa application despite the applicant’s approved I-129 TN status petition. Standing Instruction: TN/TD Visas, U.S. Consulate Ciudad Juarez (March 2012).

In this scenario, consular officers are instructed to consider the approval of an I-129 TN status petition “merely as a positive, but not determinative, factor.” Id. Applicants must still prove that they meet all the requirements for TN visa status during the DS-160 adjudicative process. Id.

The Chicago CBP office’s opinion on this subject is in-line with CBP’s National Office, of which I wrote about earlier. However, individuals should be aware that despite the growing recognition by CBP that job duties govern the classification of occupations for purposes of TN visa status, and irrespective of the concurrence by the agency’s National Office, there are still CBP offices that take a literal approach to this issue.

As written earlier, the San Diego CBP Field Office has stated that “the profession, or job title, of the applicant that is stated on the employment letter must be one of the professions listed in Appendix 1603.D.1, regardless of the duties described in the employer’s statement.” AILA San Diego/CBP Liaison Meeting, AILA InfoNet Doc. No. 12112142 (Posted 11/21/12). According to the San Diego CBP office, positions with job titles of Sales Engineer or Engineering Manager would not qualify for TN visa status even though the position requires the application of engineering principles. Id.