New USCBP TN Filing Policy Change

According to the USCBP Buffalo Field Office, effective August 21, 2017, attorneys will not be allowed in the secondary inspection area of any port-of-entry with their clients. This is apparently a national policy affecting all U.S. port-of-entries. Attorneys may still be able to contact USCBP officers prior to or after the filing of an application to discuss a client’s case, but they are now prohibited from being physically present at the U.S. port-of-entry to advocate for their client during the inspection process. The ramifications of this policy is that immigration attorneys will not be able to accompany a client to the border to represent their clients during the adjudication of a TN visa status application.

While our office may be currently unable to accompany clients to the port-of-entry for the filing of a TN application, we continue to correspond with USCBP officers by phone or email to address any concerns that a port may have with an application. Our services continue to include the drafting of the necessary paperwork for a TN visa application including the employer support letter, a cover letter to USCBP that outlines the case, and supporting research to establish eligibility for the TN. We will also continue to provide a thorough briefing with the applicant before the filing of the application so that he/she is well-prepared to address any questions USCBP may have during the filing of the application.

Systems Analyst TN Visa Approval After 2 Denials for Lack of Computer Degree

TN VisaCase Info.
Background:The applicant, a citizen of Canada, had been approved for TN visa status under the Computer Systems Analyst category for several years. When he recently applied for a new TN to change employers, a USCBP officer refused to approve the application because the applicant held a degree in Electrical Engineering and not Computer Science. The applicant returned to the border with his SAP certificates, but the USCBP officer again refused to issue a TN to the applicant due to his lack of a Computer Science degree.

We reviewed the position offered and the applicant’s credentials, and although he did not possess a degree in Computer Science, we believed that the individual still qualified under the Computer Systems Analyst TN visa category.
TN Category:Computer Systems Analyst
Job title / duties:The duties of the Systems Analyst BW/HANA position involved the analysis, design, configuration, and troubleshooting of SAP Business Warehouse (BW) and Business Intelligence (BI) systems and the HANA application.

Education:The applicant possessed a degree in Electrical Engineering, and completed several computer-related courses. He also completed training on the SAP systems involved in the position offered, and had over 15 years of related experience. To establish eligibility, we highlighted the applicant's computer coursework completed during his bachelor's degree program, and the SAP training he received. We included proof of his experience working with SAP. We then supplemented the application with research establishing that a degree in Computer Science was not required for a Computer Systems Analyst position, and that individuals with degrees in Engineering who have training and experience in the field could also qualify.

Filing Process:TN visa status application @ USCBP - Buffalo, NY POE
Processing time: Approved same day filed
Approval period: 3 years

DOS Will No Longer Annotate TN Visa Stamps for Work Period

Despite past assurances as recently as Oct. 2016, the U.S. Department of State (DOS) has now stated that it will no longer annotate TN visa stamps to reflect the dates of employment requested by a TN visa petitioner. (TN visa stamps are generally only issued to citizens of Mexico, and allow them to seek entry to the U.S. under TN status. Canadian citizens are exempt from this visa stamp requirement.)

These TN visa stamp annotations were extremely beneficial in enabling TN visa workers to secure a 3-year I-94 record from USCBP when seeking admission at the U.S. border. As written previously, annotating the 3-year work period requested on the TN visa stamp helped ensure that USCBP did not erroneously limit the TN visa worker’s period of stay to the standard 1-year expiration date of the TN visa stamp. Although the practice of annotating TN visa stamps in this manner was not uniform, the chances of USCBP issuing an incorrect period of admission were minimized when this was done. 

The DOS disclosed this new policy during the recent AILA/DOS liaison meeting in April 2017. AILA/DOS Liaison Meeting (Spring 2017), AILA Doc. No. 17041234, pgs. 17-18 (posted 4/12/17). Without further elaboration, the DOS informed AILA that it no longer believed this practice was beneficial, and that final determinations on admissions to the U.S. were to made by USCBP. Id. The DOS also indicated that it had updated the Foreign Affairs Manual to reflect this change in policy. Id. 

What has been the result of this change in policy? As expected, recent TN visa applicants who were approved for TN visa stamps based on applications from employers requesting a 3-year period of stay have been erroneously issued I-94 records only valid for 1-year (the length of the TN visa stamp).  

In light of this policy change, it is important that TN visa holders seeking their initial admission to the U.S. take affirmative steps to ensure they are admitted for the full 3-year period authorized under the TN visa regulations. With the exception of the now unavailable TN visa annotation, instructions on how to facilitate the issuance of a 3-year I-94 record at the border is outlined here