The applicant in this case had filed for a TN as a Computer Systems Analyst at a pre-flight inspection office in Canada in order to train the petitioner’s customers on the use of its business intelligence products.
The inspecting officer denied the application because the applicant’s job title was labeled as a Consultant, and because the applicant was to receive compensation from the petitioner’s Canadian affiliate.
Our office reviewed the case and believed that the applicant qualified for a Computer Systems Analyst TN. First, the job duties of a position determine the appropriate occupational classification for purposes of NAFTA and not the job title.
Second, the TN regulations and the NAFTA Handbook state that an individual may obtain TN status to conduct training seminars for a U.S. entity “relating to any of the cited occupations” in the NAFTA Appendix. Here the applicant’s seminars involved a professional level subject matter in the Computer Systems Analyst occupation as he would instruct the petitioner’s customers on the use of its business intelligence software systems.
Last, the TN regulations do not place any restriction on the source of a TN applicant’s compensation. All the regulations require is that the application describe “[t]he arrangements for remuneration.” Additionally, in discussing whether a B-1 or TC (the predecessor to the TN) was suitable in cases of indirect remuneration (e.g. as in payment from a foreign entity), the legacy INS has stated that the TC could still be appropriate. Furthermore, the legacy INS has also stated that other visa workers (e.g. H-1Bs) could receive compensation from a foreign affiliate.
Our office prepared a more detailed support letter to fully explain that the applicant’s training seminars involved professional level subject matter and were appropriately related to the Computer Systems Analyst occupation. We also prepared an extensive cover letter providing the legal authority for a TN visa worker to perform these training functions, as well as to receive payment from a foreign entity.
We accompanied the applicant to the port-of-entry for submission of the application, and USCBP approved the application for a three-year period.