Question: Currently, I have a valid TN as a Management Consultant. It was renewed by the same company for a second year. My application included an employment contract stating the temporary nature of my employment. When applying by mail, is it best to apply for an amendment to the current TN - asking instead for a 3 year TN? Or should I ask for a further 3 year TN? This company foresees needing my services for 3 additional years. I know the Management Consultant category can be tricky.
Reply: The new three-year TN rule does not specifically exclude any TN occupational categories from eligibility for the full three-year period of stay. However, TN occupational categories that U.S. immigration officials subject to a heightened scrutiny – particularly the Management Consultant category – present a more difficult case for a multi-year TN approval.
Pursuant to the legacy INS’ NAFTA Handbook, when a sponsoring company is not an actual consulting firm, a company cannot engage a Management Consultant as a salaried employee unless the individual fills a “supernumerary temporary position.” According to the government’s interpretation of this rule, Management Consultants are individuals hired by a company to help solve a particular short-term management problem. They cannot engage in any managerial or day-to-day job duties themselves. They can only provide advice and make recommendations. They cannot actively implement any of their suggestions or recommendations. The advice and suggestions must be implemented by others at the company.
When an individual has obtained several Management Consultant TNs with the same company and involving the same consulting duties, immigration officials suspect the individual is improperly filling a regular, salaried position at the company or engaging in impermissible managerial duties. As result, companies may have difficulty requesting a multi-year Management Consultant TN and may not fully benefit from the recent TN rule allowing two and three-year year periods of TN status.
Companies may overcome the government’s apprehension over successive Management Consultant TNs by first engaging the applicant as an independent contractor, and not a salaried employee. Sponsors should then also explain the continued need for a Management Consultant by describing a different managerial problem or new business challenge that needs to be addressed by the Management Consultant’s expertise. It may also be beneficial to address these concerns in detail for each year of TN status requested.
Again, while the recent three-year TN rule does not specifically exclude any TN occupational categories from eligibility for the full three-year period of stay, in practice immigration officials have been hesitant to issue multi-year TNs to Management Consultants. To overcome the government’s reservations, sponsoring companies will need to significantly describe and document the protracted need for the Management Consultant’s services.