Background & Issues:
Applicant applied for TN visa status as an Urban Planner with a land planning and site design firm, at the Ottawa, Ontario PFI. The inspecting officer refused to issue a TN on the basis that:
(1) The company was not a legitimate, active business enterprise;
(2) The Applicant’s boyfriend had an investment interest in the company;
(3) The Applicant had worked in the U.S. without authorization during her last trip to the U.S.; and
(4) The Applicant’s bachelor’s degree was ill-suited for an Urban Planner position.
We revised the Applicant’s paperwork to more adequately describe the sponsoring company, the position offered, and the Applicant’s credentials. We worked with the Applicant to prepare a Client Statement. We also prepared a supporting Attorney Brief and gathered additional documents to address these four issues. We then accompanied the Applicant to re-present her case at the Buffalo Peace Bridge POE.
Issues One & Two
In our Attorney Brief, we explained the requirements for employer sponsorship of a TN professional and established how the company met these requirements. In order to sponsor an individual for TN status under NAFTA, a business enterprise must merely provide a position for the individual to engage in business activities at a professional level in one of the NAFTA TN categories. 8 C.F.R. 214.6 (b) and (c).
We submitted documentation to show that the sponsoring company was an active, legitimate land planning, zoning entitlement, and site design firm, organized as a Limited Liability Company. The company was offering the Applicant a position where she would be engaged in business activities at a professional level as an Urban Planner. Except for questions of company ownership, there are no further requirements specific to the employer for an application for TN status.
The only other related requirement is that the Applicant cannot possess a substantial controlling interest in the sponsoring company. 8 C.F.R. 214.6 (b). Our Brief explained that the Applicant’s boyfriend’s investment interest in the sponsoring company was irrelevant for the purposes of adjudicating the Applicant’s application for a TN. The only issue involving interests in an employer that an inspecting officer may question with respect to a TN application is whether or not the Applicant herself had a controlling ownership interest in the employer. Here the Applicant had absolutely neither any investment nor controlling ownership interest in the sponsoring company.
Prior to her application for TN visa status, the Applicant had visited the U.S. to review the sponsoring company’s past projects, shadow employees, and attend business meetings. The Applicant explained in her Statement that she did not engage in any gainful employment with the company and she did not receive any form of compensation.
Our Attorney Brief explained that the Applicant’s activities in the U.S. during her prior visit were well within those permitted under the B1/B2 visitor category. Pursuant to the Inspector’s Field Manual, provided she receives no salary or other remuneration from a U.S. source, a visitor to the U.S. may: (1) attend meetings with business associates; and (2) “observe the conduct of business or other professional or vocational activity, provided the alien pays for his or her own expenses.” IFM s. 15.4.
Our Attorney Brief then explained that the Applicant qualified for TN visa status as an Urban Planner based on her Bachelor of Arts degree in Interdisciplinary Studies, which focused on Urban and Community Planning.
The TN immigration regulations allow a professional to enter the U.S. to render pre-arranged professional services as an Urban Planner provided the professional possesses one of two credentials: (1) A Bachelor’s (Baccalaureate) degree; or (2) a Licenciatura Degree. The regulations provide no further guidance on the types of degrees suitable for a TN as an Urban Planner. The Hotel Manager is the only TN category that requires a specific degree under NAFTA. No other TN category requires a specific degree. All that is required is that “[t]he degree should be in the field or in a closely related field. Officers should use good judgment in determining whether a degree in an allied field may be appropriate.” Cronin Memo.
We then referenced the Occupational Outlook Handbook (OOH) in support of our argument that the Applicant’s degree, which focused on Urban and Community Planning, was suitable for the Urban Planner TN category.
Upon review of the application materials and an interview with the Applicant, the Buffalo CBP issued a three year TN to the Applicant.