TN Application for Management Consultant Approved Despite Prior Denial and Petitioner’s Engagement of Consultant as an Employee Rather than as an Independent Contractor.
The TN petitioner in this case was involved in the commodities, equity, credit and derivatives financial products business. The petitioner required a consultant to improve the flow of financial, market and accounting data from the company’s front-office systems to its multiple risk and reporting systems and to advise on the development of models, methods and processes for accurate and efficient analysis and review of non-standard trades. The petition sought the consulting services of the TN applicant, an industry professional with significant experience in financial, market and accounting data analysis and reporting for derivatives trades and transactions.
However, due to its internal policy constraints, the petitioner could not hire the TN applicant as an independent contractor. The petitioner instead intended to hire the TN applicant as an employee. When the applicant presented the TN application at the border, CBP denied the application contending that because the petitioner intended to hire the applicant as an employee the applicant did not qualify under the Management Consultant category.
The petitioner then retained our firm to rehabilitate the case. In re-presenting this case at the border, we contended that pursuant to the NAFTA Handbook, the petitioner may hire the TN applicant as an employee under the Management Consultant TN category because the consulting position offered was a temporary assignment that did not exist within the normal operational or personnel framework of the company.
The NAFTA Handbook provides that “Management consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. They may be salaried employees of the U.S. entities to which they are providing services only when they are not assuming existing positions or filling newly created positions. As a salaried employee of such an U.S. entity, they may only fill supernumerary temporary positions.” NAFTA Handbook, Section 5, INS Manuals 46.
Although the applicant would be a salaried employee, his position was temporary and supernumerary and he would not be assuming an existing position or filling a newly created position. Based on this argument, CBP approved the revised TN application.