Spotlight Continues on TN Visa Denials

CBP Disregards Prior TN Approvals


Another article, published on Friday, further illustrates the tough stance U.S. immigration is taking on TN applications.

On March 31, 2008, CBP at Winnipeg's James Armstrong Richardson International Airport denied a TN visa application to a Canadian citizen despite two prior TN approvals. Presumably the application was for the same company and position, but the article does not state the TN category applied under or the individual's qualifications. In light of this story, it's a good time to discuss U.S. immigration's policy on deference to prior approvals.

To my knowledge, there is no publicly available, written policy on CBP's approach to adjudicating TN applications that were previously approved. USCIS issued a policy memorandum on this topic in 2004, which we can turn to for guidance. This memo provides that "[i]n matters relating to an extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant classification sought should be given deference." Yates Memo (April 23, 2004) (emphasis added).

The memo then goes on to list three situations where an officer need not give deference to a prior approval:

1. Material error in prior decision: A material error involves a misapplication of the law to the facts of the case. An example provided is where the applicant's degree is considered not appropriate for the occupation. But the memo also advises that adjudicators should not generally question prior subjective determinations, such as evaluations of the applicant's education, training or experience.

2. Substantial change in circumstances: such as change in job duties (other examples given relate to the L, H-1B and P visa categories). May involve change with respect to employer or applicant.

3. New material information: any fact not available to the prior adjudicator that would adversely impact the petitioner's or beneficiary's eligibility. Examples include information that affects national security or public safety.

As discussed previously, the border environment has become enforcement first, benefits second. CBP would rather deny a questionable case, than approve it. Apparent approvable cases, such as TN “renewals,” may face the same fate.

Denials cause disruption with U.S. employers' operations, cause consternation with HR and in-house counsel, and wreak havoc with the livelihoods of the applicants. CBP's enforcement mentality and the dire consequences of a denial underscore the need for a properly prepared application. While we can all appreciate the need for secure borders, qualifying employment cases should be approved and denials should have a legal basis. It's our role as immigration attorneys to ensure valid cases are approved, and improper denials corrected.