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Trade NAFTA (TN) State in accordance with the North American Free Trade Agreement

Background

When North America Free Trade Agreement ("NAFTA") took place on January 1, 1994, Canada and United States Free Trade Agreement ("NAFTA") was replaced. Trade in Canada (TC) class for professionals from Canada, which existed under the FTA, therefore was eliminated. However, according to Canada NAFTA professionals are now eligible for Trade NAFTA ("TN") status. Moreover, under NAFTA, the state of Tennessee is now available to Mexican citizens.

Until January 1, 2004, the transformation of thematic networks for Mexican citizens was very different for citizens TN Canadians. Prior to that time, Mexican citizens must first obtain a labor condition application, and then the proposed business would be an obligation TN to file a petition with the Service Center. In addition, Mexico's citizens are subject to annual limits on the number of thematic networks which can be approved. However, as of January 1, 2004, Mexican citizens may apply directly to the consular sections around the world for a TN visa. No application status or approved work request is required and Mexican citizens are no longer subject to numerical limits.

Canadian citizens are exempt visa in most non-immigrant categories, including TN. As a result, Canadian citizens are eligible to seek TN status directly at a pre-certification located at an airport in Canada or in a land or sea port of entry.

Eligible Occupations

Citizens Canadians and Mexicans working in certain professions may enter the United States under the state of Tennessee, to work for a U.S. company temporarily. Eligible professionals may also work for Canadian and Mexican companies in the United States.

In order to qualify for TN status, activity for U.S. should be in a profession listed in Appendix 1603.D.1 NAFTA and the applicant must possess the credentials required to qualify. The requirements of each of these categories appear in Appendix 1603.D.1.

The list of professionals in TN in the Appendix 1603.D.1 is almost identical to the list of TC professionals listed in Annex 2 of the former TLC. The changes resulting from NAFTA that affect national Canadians are the following: (a) notaries in Quebec are considered equivalent to other attorneys, (b) includes the occupation of mathematical statistics, (c) oceanographers are included in the profession of physical, and geographers are included in the profession of urban planner.

In most but not all professions on the list, a BA (degree) or degree (or degree, the Mexican equivalent of a bachelor's degree) is usually required. Although not indicated in Appendix 1603.D.1, U.S. Customs and Border Protection (USCBP) has already said he expects the degree that is clearly relevant to the proposed post.

In other words, an alien with a BA in English usually do not qualify as a computer systems analyst. However, a foreigner with a mathematics degree must be able to qualify for TN status of computer systems analyst, and usually it can be shown that systems analysis requires the application of principles of mathematics. Similarly, an alien with an accounting degree should be able to seek TN status if the systems analyst position is proposed design accounting applications.

The list of eligible professions also includes occupations which do not necessarily require a bachelor's degree as minimum requirement. Some professions require a post-secondary diploma or certificate plus years of experience. The term "post-secondary diploma" means credentials issued, on completion of two or more years of post-secondary education, by an accredited academic institution in Canada or the United States. The term "post-secondary certificate" refers to the equivalent of Mexico's post-secondary diploma. As in the case of a formal education abroad if required work experience must be shown to be relevant to the proposed post.

Some of the TN complex cases are discussed below:

Technical Scientific / Technical

A businessman in his category should have:

1. Knowledge in any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics, and
2. The ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of these disciplines to research based or applied.

From November 7, 2002, the [the following guidelines that currently appear in the Field Inspector Manual ("IFM")] apply to scientific technicians and technologists ("ST / T"):

1. The people for whom scientific technicians and technologists wishing to provide direct support professional should be considered in its own right in one of the following areas: agriculture sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.
2. A general offer of employment of such professionals is not sufficient, by itself, to qualify for admission as ST / T. The offer must demonstrate that the work of the ST / T will intertwined with that of professional supervision. That is the work of the ST / T must be managed, coordinated and reviewed by the professional supervisor, and must give your own opinion about the work of professional control.
3. The ST / theoretical knowledge Ts should have been acquired through successful completion of at least two years of training in an appropriate educational program. Such training can be documented the presentation of a diploma, certificate or transcript of a accompanied by a proof of relevant work experience.
4. U.S. authorities are based on the Department of Labor Occupational Outlook Handbook to determine if the proposed work functions are compatible with those of a scientist or engineer technician or technologist. ST / "I" should not be allowed to perform job functions that are primarily associated with other job titles.
5. Not admissible as ST / Ts persons intending to do the work normally done by the construction industry (welders, boilermakers, carpenters, electricians, etc.) even when these routes are specialized in a particular industry (eg aircraft, distributions of power, etc)

IFM requires the work of the ST / T must be managed, coordinated and reviewed by the professional supervisor, and also must give its opinion on the professional work itself supervision. Although previously many immigration officers were lenient in relation to the degree that the professional supervisor had to control the ST / T, the wording of the current guidance suggests that the professional supervisory control over the ST / T must be considerably stronger than in the past.

IFM also requires the ST / T have theoretical knowledge acquired through at least two years of training in an appropriate educational program. Previously, there was no specific minimum education requirement. However, ST / Ts now require at least two years of relevant education. It is not clear from the language if this education should be acquired through a diploma program of two years or if an applicant can qualify based on two one-year certificates in a given area.

Medical Laboratory Technician

A businessman in this category must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic or bacteriological tests and analysis for the diagnosis, treatment or prevention disease. This limitation appears as a footnote to the Appendix 1603.D.1 and in the IFM. The requirement that the alien laboratory testing in the fields of the specific boundaries of this category. For example, medical technicians and other technicians ultrasound or ECG technicians probably do not qualify.

Medical

Appendix 1603.D.1 clearly indicates that only doctors can enter the teaching or research purposes. It does not include direct patient care.

Despite this fact, let USCBP patient care is clearly related to teaching or research activities. According to the IFM, patient care is incidental when it is casually incurred in relation to education of medical or research.

To determine whether patient care is incidental, factors such as the amount of time spent on patient care in relation to education and / or research, if the physician receives compensation for such services, if the salary offer is so important in teaching and / or research to direct patient care is unlikely, or if the doctor has a regular patient load, may be considered by the officer.

Insurance Disaster Relief Claims Adjusters

According to the MFI, as a professional, must now submit the documents to an event of disaster declared by the President of the United States or a state law or local ordinance or event in a place that has been assigned a catastrophe serial number for the Service Property Claims of the American Insurance Services Group, or, if property damage exceeds $ 5 million and represents a significant number of claims, an association of insurance companies representing at least 15 percent of the property casualty market in the U.S.

Management Consultants

According to the IFM, management consultants provide services which are aimed at improving the management, operation, and Economic Performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity's goals, objectives, policies, strategies, administration, organization and operation. Management consultants are usually independent contractors or employees of consulting firms under of contracts to U.S. entities. They may be employees of U.S. entities where are the provision of services only when they are not assuming existing positions or filling positions start-ups. As an employee of an entity as the U.S., which can only fill supernumerary temporary positions. On the other hand, if the employer is a management consultancy U.S. company, the employee may be coming temporarily to fill a permanent position. This is a reformulation of the guidelines contained in the old instruction Operations have now been replaced by the IFM.

Systems Analyst

According to the IFM, the class of systems analyst does not include computer programmers. A systems analyst is an information specialist who analyzes how data processing can be applied to the specific needs users and systems designs and implements computer-based treatment. Systems analysts study the organization to identify their information needs and design of computer systems to meet those needs. Although the systems analyst will do some programming, the TN category has not been extended to include programmers.

Hotel managers

The previous decision of the matter of the Sun, on 12 December I. & N.. 535 (DD 1966) acknowledged that hotel managers could be regarded as professionals, the vocation of hotel manager in Appendix 1603.D.1 for this reason. Without But the precedent the decision later in the field of Caron International, December 19 I. & N.. 791 (Comm'r 1988), the Commissioner said the following about the matter of the Sun:

Although finds of the vocation of hotel manager at its most complex involving certain duties for a large hotel can be considered a profession, it also provides "the beneficiary, by virtue of its high level of specialized training in field of hotel management and experience in this field is entered as a member of that profession. "The matter of the Sun is distinguished from this case because the applicant has not demonstrated here a specific degree required to perform the proposed occupation.

In view of this, the general director a small strip motel will be difficult to demonstrate that its proposal is the professional position. Similarly, a lower-level manager in a large hotel will also have difficulties in establishing that its position is professional proposal.

Despite a hotel manager may benefit from TN state based on a diploma in restaurant management, he or she may not seek TN status as manager of a restaurant, but the restaurant happens to be located within a hotel. On the other hand, a Director of Food and Beverage Services (the position on Dom proposal) may be due to their functions involve a key function of hotel, and not just managing a restaurant.

According to the IFM, hotel managers now must have a bachelor's degree in hotel or restaurant management. A post-secondary diploma in hotel / restaurant management plus 3 years experience in the field also will qualify. In the author's opinion, this provision MFI does not make sense. Apparently, even to disqualify an alien who has a degree in a related business field, unless the degree is specifically in the hotel or restaurant management. For example, even a foreigner with an MBA in marketing would be disqualified from this option.

Certification Requirements for other health care workers

According to INA 212 (a) (5) (C) , Foreigners (except doctors) trying to work in the field of health are unacceptable. It has been established that the term "health worker" in the legislation include following occupations:

1. Nursing assistants, vocational nursing assistants, and nurses;
2. Occupational therapists;
3. Physiotherapists;
4. Speech language pathologists and audiologists;
5. Medical technologists (clinical laboratory scientists);
6. Physician assistants and
7. medical technicians (clinical laboratory technicians).

The certification requirement does not apply health workers who want to work as teachers, researchers or administrators of health facilities. A health worker may discuss the state of TN position proposal does not involve patient care, directly or indirectly.

Despite this ground of inadmissibility, a blanket of years of non-immigrant waiver of inadmissibility was initially granted for these health workers. These exemptions are granted automatically a blanket at the time that the application TN.

For most people, this general exemption no longer available on September 23, 2003. However, remained extended until July 25, 2005, for Canadian and Mexican nurses that, before September 23, 2003, on TN or TC nonimmigrant status as health workers and held licenses a valid United States jurisdiction, provided they have obtained certification within one year.

Use Work Experience Equivalency Applications in TN

Although it is possible within the H-1B category to establish equivalency to a degree, by showing a combination of experience and education, the TN category, an applicant who has no such degree of equivalence can not display such. However, it is still possible to demonstrate that a title abroad is equivalent to a Canadian or U.S. degree, to qualify for TN status. Where licensure is required, the applicant must show a license in the state in which he or she goes to work.

Licensure requirements for specific professions

Previously, certain applicants TN regulated professions (ie lawyers, accountants, etc) are required to demonstrate that he possessed a license to practice (if necessary) in the state of employment expected. However, the Department of Homeland Security ("DHS" removed) the licensing requirements for Mexican nationals on March 10, 2004. On November 12 2004, DHS also eliminated licensing requirements for Canadian citizens seeking TN status.

As a result, a state license is no longer a requirement documentation required for entry. state jurisdictions continue to maintain the ability to impose licensing requirements in any profession. The DHS has been limited to state that does not require proof of license before it will admit the alien as a TN.

Self banned

NAFTA now expressly prohibits the establishment of a business or practice of the United States in which the self-employed professional. The phrase "engage in business in the professional activities "is defined in 8 CFR § 214.6 (b) as follows:

[T] he conduct of business, an entity set up for United States, including an individual. No authorizing the establishment of a business or practice of the United States in which the professional will be essentially self. A professional shall be considered self-employed if he or she will be the provision of services to a corporation or entity which the professional is the sole or controlling shareholder or owner. [Emphasis added.]

However, self-employment, which can still be found even when abroad is not the sole or controlling shareholder or owner.

According to the MFI, even if the recipient firm is legally distinct from abroad, as a corporation with an independent legal existence as a professional entry id refusd NAFTA should the company receives is "substantially controlled" by the alien. Officials should consider the following factors, among others, to determine whether the alien "substantially controls" the entity of the United States:

1. If the applicant has established the receiving enterprise;
2. If, as a matter of fact, the applicant has exclusive control of the company or principal U.S. (Regardless the applicant's actual percentage of share ownership);
3. Whether the applicant is sole or principal shareholder of the company, or
4. If the applicant is the sole or main beneficiary of the income of the business.

The MFI also that the following factors, among others, are relevant in determining if the alien will be self-employed in the United States:

1. Incorporation of a society in which the alien will be self-employed;
2. Initiation of communications (eg direct mail or advertising) for the purpose of obtaining employment or entering into contracts with the company in the U.S. or
3. In response to ads in order to gain employment or contracts.

In addition, the following activities do not constitute the establishment a business in which the alien is self-employed in the United States:

1. In response to the consultations requested by the service (s) that the professional may be able to perform or
2. The establishment of commercial establishments to deliver pre whch customer service.

Blockade work or other labor dispute Elgibility TN Bars

If the Labor Department certifies that the proposed site work the applicant is subject TN of a work stoppage or labor dispute involving a work stoppage and the temporary entry of an alien may adversely affect both the resolution of the dispute or the employment a person involved in the dispute, the request may be denied.

Maximum Period of Stay

Until recently, the initial maximum period of stay can be granted to a TN nonimmigrant was one year. On the other hand, a TN nonimmigrant may apply for extensions stay in the United States only in increments of one year. However, the October 16, 2006, DHS issued its final rule on the admission and prolonged periods RT permanence of Canada and Mexico.

From October 16 2008, the maximum time allowed for the admission of TN nonimmigrants has increased one to three years. The final rule also allows the TN nonimmigrant other requirements for granting an extension of stay in increments of up to three years instead of the previous peak of a year.

In contrast to the H-1 and L-1, there is no limit on the duration of a TN professional may remain in the United States under that statute. However, some ports of entry to impose arbitrary limits based on their incorrect interpretation of 8 CFR § 214.6 (B), which defines "temporary entry" as follows:

Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must show the immigration officer that the inspection of the proposed stay is temporary. A period of time has a reasonable final, finite can not be equated aa permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to satisfy the immigration official inspection work assignment in the United States end in the foreseeable future and that he or she will at completion of the assignment.

TN professionals and must show that immigrants have no intention, as a result of INA § 214 (b). The definition of "Temporary entry" is clearly based on the principles contained therein. The existence of this definition should not have resulted in a change in the award of non-immigrant intent.

There is no specific requirement TN professionals maintain a residence abroad to show that unabandoned the entry is temporary. Other categories like B-1/B-2, J-1 and F 1-requires proof of residence abroad unabandoned, but this requirement specifically listed in the INA. There is no requirement exists for such legal professionals TN.

Fortunately, several ports of entry remain reasonable with respect to the question of the temporary entry. In absentia evidence that the alien has immigrant intent, such as ports of entry to the conclusion that the alien is in fact seeking temporary entry.

Double intention status unrecognized TN

The recognition of "dual intent" essentially means that the alien is permitted to simultaneously have an intention to submit to work temporarily in the United States and a future intention to become a permanent resident. Although the concept of dual intent was proven for workers under the NAFTA, this seems to have changed with the implementation of NAFTA.

INA § 214 (e) (2) states now that the TN category should be treated as a class regular admission under INA § 101 (a) (15). What is subject to the same restrictions as other nonimmigrant categories. Because INA § 214 (b) creates a rebuttable presumption of immigrant intent for all non- immigrants than those of the H-1 level L, the concept of dual intent is not specifically recognized for the TN professional. Please see the article on dual intent for additional information.

In any event, the Canadian TN clarity professionals must satisfy the immigration officer intending bona fide nonimmigrant each time to seek admission to the United States. The fact that a professional is the recipient TN a labor certification application or a petition for permanent residency can be given significant weight when assessing immigrant intent. While this does not necessarily constitute conclusive evidence of immigrant intent, overcoming the presumption of immigrant intent in these cases can be a difficult task.

A 1996 letter from Yvonne LaFleur, Chief of Division of the INS and Trade on the performance of the Division, suggested that a TN professional may still intend in good faith non-immigrant, even though they were the beneficiaries of an approved immigrant petition where it is seeking consular processing rather than adjustment of status.

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Initially, many (though not all) ports of entry with this approach. However, many ports of entry began to ignore it in later years. Fortunately, a letter USCBP 2008 seems to have revived this principle.

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In a letter dated April 21, 2008, Mr. Paul M. Morris, Executive Director of Admissibility and Passenger Programs, USCBP felt that the mere presentation or approval of a Form I-140 Immigrant Petition on behalf of an immigrant is not automatically TN immigrant intent. A TN nonimmigrant and their dependents may have an intention to immigrate or adjust status at a future time, but if your intent at the time of admission is to be in the United States for a period temporary, he or she could be admitted. However, once the TN submitting an application for an immigrant visa or adjustment of status, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

While opinion letters are not legally binding USCBP, the letter of 2008, however supports the principle that a professional may intend TN nonimmigrant despite the filing or approval of an immigrant petition on their behalf. Of course, TN professionals who care about the problems immigrant intent may also wish to consider changing their status to H-1B TN (assuming they are also entitled that category) before applying for permanent residence.

About the Author

Henry J. Chang obtained his law degree from Osgoode Hall Law School in 1990. He is a member of both The State Bar of California and The Law Society of Upper Canada (”LSUC”). Mr. Chang is also licensed as a Foreign Legal Consultant by the Law Society of Upper Canada, which is a requirement for all Ontario lawyers who provide advice on the law of a foreign jurisdiction.

A recognized authority in the field of United States and Canadian immigration law, Mr. Chang lectures extensively on the subject in both the United States and Canada. His articles have appeared in numerous nationally- and internationally-recognized publications. A partial list of recent publications and speaking engagements appears below. Mr. Chang also mentors other lawyers in the practice of immigration law in the United States and Canada.

Jerry marcos Aia Aia

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