NONIMMIGRANT ADMISSION UNDER THE NORTH AMERICAN FREE TRADE AGREEMENT

Transcription

1 NONIMMIGRANT ADMISSION UNDER THE NORTH AMERICAN FREE TRADE AGREEMENT The North American Free Trade Agreement ( NAFTA ) is intended to promote and facilitate trade between the United States, Canada, and Mexico. In addition to eliminating tariffs and other non-trade barriers, NAFTA provides for facilitated border crossing of business people from each country. B-1 Business Visitors A visitor for business is defined as a person engaged in international business activities related to research and design, growth, manufacture and production, marketing, sales, distribution, after-sales service, and other general services reflecting the activities, and who receives no remuneration from a United States source. A Canadian citizen seeking status as a visitor for business may apply for admission at a Port of Entry without first obtaining a nonimmigrant visa. A Mexican citizen seeking status as a visitor for business may apply for admission at a Port of Entry after obtaining a B-1/B-2 nonimmigrant visa or Border Crossing Card. The following is required for admission into the U.S.: 1. Proof of citizenship; 2. Description of the purpose of the visit; and, 3. Evidence that he/she is one of the following: Researcher and designer; Purchasing and production management personnel; Growth, manufacture and production crew; Market researchers and analysts; Promotional personnel attending trade fairs; Sales representatives and buyers; Transportation operators and customs brokers; Commercial service personnel; After-sales service personnel. After-Sales Service Personnel The NAFTA permits business travel for after-sales service during the full period of warranty or service agreement. (Nationals of countries other than Canada are permitted to enter the United States on B-1 visas to perform after-sales service during the first year after purchase only.) Entry in B-1 capacity for after-sales service is permitted to installers, repair and maintenance personnel and supervisors who possess specialized knowledge essential to the contractual obligations of the service contract or warranty. It is also permitted for personnel to enter the United States to perform service pursuant to such contractual obligations or to train personnel to perform such service. It is important to note that the commercial machinery or equipment (including computer 1

2 software) which is the subject of the maintenance of the service agreement must have been manufactured and sold outside the United States. Other Eligible Personnel Apart from after-sales service personnel, the NAFTA includes an expanded definition of B-1 permissible U.S. activities. Some activities allowed by the NAFTA include the following: 1. Professionals engaging in a business activity at a professional level, and who receive no remuneration, other than expense reimbursement, from a United States source; 2. Management and supervisory personnel engaging in commercial transactions for an enterprise located in Canada or Mexico; 3. Financial services personnel engaging in commercial transactions located in Canada or Mexico; 4. Tourism personnel (tour and travel agents, tour guides, or tour operation); 5. Public relations and advertising personnel consulting with business associates or attending or participating in conventions; 6. Translators and/or interpreters who are employees of an enterprise located in Canada or Mexico; 7. Persons otherwise eligible for B-1 visas under existing immigrant statutes. Professional Trade NAFTA (TN) A professional is defined as an alien who is a citizen of Canada of Mexico who seeks to enter the United States under and pursuant to the provisions of Section D of Annex 1603 (see attachment) of the North American Free Trade Agreement to engage in business activities at a professional level. TN status is similar to H-1B status in that it is available to professionals entering the United States to engage in business activities with a specific employer at a professional level, i.e. those positions that require that the individual has at least a baccalaureate degree or appropriate credentials demonstrating status as a professional. The list of professions which qualify for this visa is enumerated in the NAFTA. The TN holder s period of admission is initially granted for a period not to exceed one year and may be extended for periods of one year with no maximum limitation. Eligible professionals include the following: Accountant; Actuary; Architect; Computer Systems Analyst; Disaster Relief Insurance Personnel; Economist; 2

3 Engineer; Forester; Graphic Designer; Hotel Manager; Industrial Designer; Interior Designer; Land Surveyor; Landscape Architect; Lawyer; Librarian Management Consultant; Mathematician; Medical/Allied Professionals; Plant Pathologist; Range Manager; Research Assistant (in post-secondary educational institution); Scientific Technician; Scientist; Social Worker; Sylviculturist; Teacher (College, University, Seminary); Technical Publications Writer; Urban Planner; Vocational Counselor. PROBLEMATIC PROFESSIONS UNDER THE TN CATEGORY The following professions under the TN category deserve special scrutiny. Engineer Appendix 1603.D.1. of the NAFTA includes Engineer as one of the professions in which a businessperson seeking admission under the TN category may engage. The minimal educational requirement for a Canadian engineer is a Baccalaureate degree or a provincial license. Software engineers may encounter some difficulty in gaining admission as TN professionals. No state at present requires a license of software engineers, and only a handful of universities, colleges, and technical schools offer degree courses or majors formally designated as software engineering ones, generally offering only degrees in Computer Science or Computer Engineering to the aspiring software engineer. In the TN context, applications for software engineers have been denied on the basis that software engineering, unlike such traditional disciplines as electrical, mechanical, and chemical engineering, is not a true engineering profession. Most software engineers today hold degrees in Computer Science, and an education in 3

4 this discipline is regarded by many IT companies as the most desirable preparation for employment in this industry. Holding a degree in Computer Science nevertheless exposes the applicant for TN admission as a software engineer to denial (even if software engineering is accepted as a legitimate engineering specialty) on the basis that his or her degree is not an engineering one. Computer Systems Analyst Appendix 1603.D.1. of the NAFTA lists Computer Systems Analyst as one of the professions for which admission in TN status is permissible. For admission as a Computer Systems Analyst, a Canadian must have a Baccalaureate degree or a postsecondary diploma (no specific discipline is indicated for either). If only a postsecondary diploma is held, three years of experience must also be shown. Since no licensure system yet exists for Computer Systems Analysts, a license requirement does not apply. The INS Field Inspector s Manual describes a Computer Systems Analyst for TN admission purposes as an information specialist who analyzes how data processing may be applied to the specific needs of users and who designs and implements computer-based systems... [and] study the organization itself to identify its information needs and design computer systems which meet those needs. Although Computer Science appears to be the preferred discipline for Computer Systems Analysts, the United States Customs and Border Protection * ( USCBP ) has exhibited a willingness to admit applicants with degrees and/or postsecondary diplomas in a range of formal disciplines that involve the study of computerized information systems, such as Information Technology, Information Processing, Computer Technology, and even Database Management. The most significant problem IT companies have encountered with respect to the admission of Canadian Computer Systems Analysts under the NAFTA concerns individuals whose job descriptions, work experience, or educational background identifies them, in the Service s view, as computer programmers. At present, the USCBP position is that computer programmers are not admissible under the TN category. Scientific Technician/Technologist Scientific Technician or Technologist is the only profession enumerated in Appendix 1603.D.1. that does not require the possession of a Baccalaureate/Licenciatura degree, a license, a postsecondary diploma or certificate, or a specified number of years of professional experience. A person applying for admission as a Scientific Technician or Technologist must demonstrate the following: 1. Theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and * Formerly, the inspections component of the Immigration and Naturalization Service 4

5 2. The ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research. TN applications for admission as a Scientific Technician/Technologist are routinely reviewed with heightened scrutiny by Service officers. An IT company wishing to employ a Canadian in TN status as a Scientific Technician/Technologist must therefore be careful to present evidence that the applicant possesses the necessary theoretical knowledge of an IT-related engineering discipline, as well as the requisite problemsolving or research abilities. Scientific Technicians/Technologists must be seeking admission to another NAFTA State Party to work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics. This means that the applicant s work must be subservient in nature; it should not be an end in itself or in any way result in the production of a completed product by the Scientific Technician/Technologist alone (or in cooperation with someone who is not a professional). Second, the applicant s duties must be ancillary to the work of a professional or professionals; he or she must assist such a professional or professionals in the performance of his/her duties (the fact that direct support is required implies that there must be no intermediaries between the Scientific Technician/Technologist and the professional). Third, a connection must be drawn between the Scientific Technician/Technologist s work and the work done by the professional or professionals to be supported. This will require the applicant and/or the company wishing to employ him or her to explain precisely how his or her work is related to the work done by the relevant professional or professionals, and, more specifically, how the work of the applicant will be beneficial or useful to the work of this professional or professionals. The applicant s work should generally consist of the resolution of practical problems encountered by the professional or professionals, or of the conduct of basic or applied research. Fourth, a connection should be drawn between the applicant himself or herself and the professional or professionals to be supported. Although there is no requirement that the professional being supported be employed by the company seeking to employ the Scientific Technician/Technologist, some USCBP officers require that a hierarchical chart be produced and that this chart depict the applicant as being directly subordinate to, or reporting directly to, an identified professional or set of professionals. The NAFTA designates professionals as the only class of persons who may receive the benefit of the Scientific Technician/Technologist s support. The person or persons being supported be working in one of the professional disciplines cited in the NAFTA (agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics). 5

6 Management Consultant Appendix 1603.D.1. also lists Management Consultant as a profession for which entry in TN status is permitted. TN applications for Management Consultants are therefore subject to close review by Service officers, and additional care needs to be invested in their preparation by the United States entity and its counsel. Management Consultants must: provide services that are directed toward improving the managerial, operating, 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. The NAFTA requires that a TN Management Consultant have either a Baccalaureate Degree (in no specific discipline) or equivalent experience. Such equivalent experience is five years of experience as a management consultant or in a field of specialty related to the consulting agreement. These can be established through a detailed résumé or, preferably, through letters from former employers if the individual has not been self-employed. If the applicant has been self-employed as a consultant, then letters from entities receiving the benefit of his or her consultation would be appropriate. Although the NAFTA allows persons new to the field of management consultation to be admitted as Management Consultants, the Service can be expected to be skeptical of an application for a person who has had many years of industry experience, but has never before served in a consultative role. The INS Field Inspector s Manual states that: Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. They may be salaried employees of the U.S. entities to which they are providing services only when they are not assuming existing positions or filling newly created positions. As a salaried employee of such a U.S. entity, they [sic], may only fill supernumerary temporary positions. On the other hand, if the employer is a U.S. management consulting firm, the employee may be coming temporarily to fill a permanent position. Generally, only a Management Consultant who is under contract (i.e., in a non-salaried capacity) to a United States entity will be admissible. A salaried Management Consultant may be admissible, but not if he or she is (a) assuming an existing position, or (b) filling a newly-created position. This means that the Management Consultant must be employed in a supernumerary employee category. In common usage, supernumerary refers to being in excess of the usual, proper, or prescribed number, but associated with a regular body or staff. Any application for a TN Management 6

7 Consultant that will be employed as a salaried employee of a United States entity must be careful to state clearly that the applicant will be a supernumerary employee, who, although on the company payroll, will somehow stand apart from the main corpus of employees, and will not be incorporated into the regular hierarchy of this entity. APPLICATION PROCEDURE FOR CITIZENS OF CANADA UNDER NAFTA Canadian citizens go through fairly straightforward application procedure to obtain TN admission into the U.S. TN applications are made either at a Class-A port of entry (including a pre-flight clearance station at a Canadian airport). The application must include a letter of support and other documentation that establishes the following: 1. Proof of the applicant s Canadian citizenship; 2. Name, address and business of the proposed U.S. employer; 3. Description of professional business activity in which the applicant will be engaged; 4. The anticipated length of stay; 5. The educational qualifications and/or credentials which demonstrate that the applicant has professional level status; 6. Compliance of the applicant with any applicable state laws and/or licensing requirements for the professional business activity; and, 7. The arrangements for remuneration for services to be provided by the applicant. 8. Upon approval of the applicant will be granted one-year work/stay authorization and will be issued a multiple entry I-94 document. Dependents will be granted TD status; employment is not authorized. Processing times for port of entry applications vary, but the average time is about one hour. Should the company wish to file with the Nebraska Service Center, processing times may vary from four to eight weeks. APPLICATION PROCEDURE FOR CITIZENS OF MEXICO UNDER THE NAFTA Unlike their Canadian counterparts, Mexican citizens must apply for TN status at a U.S. Consulate abroad before entering the United States in TN Status *. The application must be submitted on a form I-129 Petition for Nonimmigrant Worker, and must include: 1. Evidence that the beneficiary meets the minimum education requirements; 2. Statement from the prospective employer in the U.S. setting forth the professional the nature of position and a full description of duties, salary, etc. * Please note that as of January 1 st, 2004, TN applicants will no longer be subject to Labor Condition Application requirements, or annual numerical limits. 7

8 Once filed the petition is usually adjudicated within four to six weeks. Mexican TN dependents will be granted TD status and employment is not authorized. PRACTICE ADVISORY: PREMIUM PROCESSING In June 2001, the Legacy INS introduced its Premium Processing program, which requires 15-day processing of certain nonimmigrant petitions by the USCIS upon the payment of an additional $1,000 filing fee. The service is presently available for H-1B, TN, L, O, P, H-3, H-2, E, R-1 and Q petitions, and it is anticipated that it will become available for other types of petitions in the near future. The USCIS is responsive and helpful in providing information about both pending and approved cases, including providing notification via fax or . FILING GUIDELINES: TN If the petition is filed through the USCIS Nebraska Service Center, then the following are needed: Form (s): I-129 Fee: $ G-28 Form: I-539 (Family) Fee: $ If Premium Processing, in addition include the following: Form: I-907 Fee: $ L-1 Nonimmigrant Admission under the NAFTA An intracompany transferee is a person coming to a United States parent, branch, subsidiary or affiliate of a foreign company. The transferee must have been employed abroad by the foreign company for at least one year out of the preceding three in an executive, managerial, or specialized knowledge capacity. He or she must be coming to the United States for the purpose of employment in an executive, managerial, or specialized knowledge capacity. A petition must be filed or behalf of the intracompany transferee on Form I-129 by either the United States employer or the foreign employer. 8

9 A Canadian citizen seeking status as an intracompany transferee may apply for admission at a Class A port of entry without first obtaining a petition approval from an USCIS Service Center. A Mexican citizen seeking status as an intracompany transferee must petition and obtain an L visa at a consulate abroad. He or she can only apply for admission at a Port of Entry after obtaining USCIS approval of an L-1. The spouse and children of an Intracompany Transferee are classified in L-2 status. L- 2 spouses may accept employment; L-2 children may not. E-1 Treaty Trader and E-2 Treaty Investor Visas A Treaty Trader is defined as an individual who wishes to engage in substantial trade involving the flow of goods or services principally between the United States and Canada or Mexico. Over 50% of the international trade must be conducted between the United States and the treaty country. The Treaty Trader must be a citizen of Canada or Mexico. An employee of a trader may also qualify as a treaty trader if he or she is entering the United States in an executive or supervisory capacity; or, if employed in a lesser capacity, the employee has skills which are essential to the efficient operation of the business. Issuance of an E-1 visa is required prior to entry of both Canadians and Mexicans. A Treaty Investor is a citizen of qualifying country, including Canada and Mexico, who is coming to the United States to develop and direct a bona fide enterprise involving a substantial investment of capital and owned at least 50% or controlled by Canadian or Mexican nationals. The employee of a treaty investor who will be employed in an executive or supervisory capacity, or who has skills that are essential to the operation of the business, may also be classified as a treaty investor. Issuance of an E-2 visa is required prior to the entry of both Canadians and Mexicans. Canadian and Mexican citizens must first obtain a visa from the United States Consulate prior to seeking admission, even when a Canadian citizen has obtained a change of status to that of a treaty trader or investor. This is one of the few times when a Canadian citizen would need to present a visa at the time of application for admission. Presently the U.S. Consulate in Toronto is the only one with authority to grant E-2 visas. Canadian and Mexican nationals must present documentation to establish eligibility for an E visa under the existing criteria in the INA. Upon the issuance of an E visa, a Canadian or Mexican citizen is eligible to apply for admission into the United States for an initial period of up to one year. Extensions of the alien s E visa status are available. The alien will be issued an I-94 card specifying E-l or E-2 status as appropriate, valid for multiple entries in the United States. The spouse and children of the E - Treaty Trader or Treaty Investor are granted the same status as the principal. Spouses are authorized employment v2/sf g72#02!.doc 9