New Visa Policy May Lead to Shorter Visa Validity Periods

On January 26, 2018, the U.S. Department of State revised the Foreign Affairs Manual provisions that guide visa officers on the validity period of visa stamps and the number of admissions to grant under a visa stamp.  

Under this new policy, visa officers may limit the validity period of visa stamps to a time frame less than that required under the government's reciprocity schedule if the officer believes the "stability of the applicant's longer-term ties to his or her residence abroad are in doubt." Officers may also reduce the number of admissions/entries typically permitted under a visa stamp. The new policy does advise visa officers to use these limitations "judiciously" and "with caution", and only if an officer has "due cause." More information and an example of a case that may warrant a visa validity reduction are provided at 9 FAM 403.9.

It is difficult to predict what, if any, implication this new policy may have on the issuance of TN visa stamps by U.S. consulates to citizens of Mexico. The reciprocity schedule already only provides a 1-year validity period to TN visa stamps, and I would suspect that the reduction of this validity period would be reserved for only a small number of borderline cases. Should this be otherwise, I will provide an update here. 

TN Visa Workers: Is now the time to consider filing an H-1B visa petition?

The H-1B visa filing window (April 1, 2018) is fast approaching. While the H-1B visa classification has faced heightened scrutiny under the Trump administration (as with many other aspects of U.S. immigration including the TN visa), the H-1B visa may still offer some advantages to current TN visa workers. Additionally, it may be beneficial to obtain an H-1B visa now before any further restrictions are placed on the H-1B visa classification by the administration. 

Who should consider filing an H-1B visa petition?

  • TN visa workers who have faced repeated scrutiny – most often by USCBP – over whether their job qualifies within a TN occupational category. The H-1B visa classification is not restricted to 63 occupational categories like the TN visa classification, but instead provides work authorization for a broader group of “specialty occupations”.
  • TN visa workers who have been questioned over how their credentials qualify for their TN occupational category. Under the H-1B visa classification it is possible to combine education and experience to secure an opinion that an individual has a degree more closely aligned to his/her field. This is not permissible under the TN visa classification. 
  • TN visa workers seeking U.S. permanent residence (a green card). While it may be possible to pursue a green card while under TN visa status, it is a more nuanced process compared to that under H-1B visa status, which specifically allows for “dual intent”. Risk averse individuals may be more comfortable pursuing a green card under H-1B status, which is considered a more conservative approach. 
  • TN visa workers concerned over the viability of the TN visa classification. While under attack by the Trump administration, the H-1B visa is not facing an existential crisis like the TN visa may be facing. If the Trump administration decides to withdraw from NAFTA, that could mean the end of the TN visa classification. (Such a withdrawal, which may require Congressional approval, could take several years to execute, and would likely be delayed significantly and possibly thwarted by court challenges.) 

Contact us to discuss whether pursuing an H-1B visa may be a better fit for you instead of the TN visa classification.

USCIS Clarifies TN Visa Category for Economists

On November 20, 2017, USCIS issued a policy memo clarifying the types of duties permissible under the TN visa category for Economists. 

In its memo, USCIS noted that because the TN regulations did not provide a description of the duties acceptable for an Economist, there had been “inconsistent adjudications about whether certain types of analysts, and persons engaged in other occupations, such as financial analysts, market research analysts and marketing specialists qualify under the economist profession.” USCIS clarified that to qualify for TN visa status as an Economist, a position must be consistent with the description of an Economist as provided in the Occupational Outlook Handbook (OOH) and the Standard Occupational Classification (SOC) system. 

This reference to the OOH is not exactly new policy. What is new is USCIS’ specific exclusion of 3 roles, which while related to economics, are defined elsewhere in the OOH and SOC: financial analysts, market research analysts, and marketing specialists. Of particular importance is the exclusion of financial analysts. Historically, individuals have often sought and successfully obtained TN status under the Economist category for financial analyst type roles. Citing the OOH, USCIS now specifically differentiates financial analysts from economists stating that “financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions.”

With the issuance of this new policy memo, it can be expected that Economist TN visa applications including extensions and renewals will now be subject to more heightened scrutiny. While issued by USCIS, it is likely that USCBP, which adjudicates TN border applications for Canadians, and U.S. consulates, which adjudicate TN visa applications for Mexicans, will follow this policy memo. TN visa workers who may be performing financial analyst-related tasks or who are working at businesses that traditionally employ financial analysts should re-evaluate their eligibility for TN visa status and consider the following:

  • Avoid traveling until more is known as to how this new policy will be implemented.
  • If travel is necessary or you are planning to renew your TN status, be prepared to explain and document to immigration officials how your job falls within the Economist category. 
  • Consider alternative visa options, if possible.