The USCIS has issued new guidance in its Policy Manual, which updates the eligibility criteria for TN professionals under the United States-Mexico-Canada Agreement, also known as the “USMCA.” This guidance outlines substantial changes to application procedures, eligibility requirements, and certain USMCA professional designations.
The TN visa category allows citizens of Canada and Mexico to work in the United States in specific professional occupations listed under the USMCA. Eligibility requirements differ between professional categories, but all foreign nationals must be entering the United States to work in a listed specific occupation, meet the qualifications outlined under the USMCA, and maintain prearranged part-time or full-time employment with a U.S. employer or entity.
Intended employment must be with U.S. employers
The new guidance specifies that employment in the United States must be with a “U.S. employer or entity.” Prior rules did not make this distinction, and foreign nationals could work for foreign employers doing business or operating in the United States. Now, there must be a formal arrangement in place, either through an employer-employee relationship with a U.S. enterprise or via a signed contract between the foreign national’s employer and the U.S. enterprise.
The new guidance also says that self-employment no longer qualifies for TN classification. If a foreign national will be employed in the United States by a corporation or entity for which the foreign national is the sole or controlling shareholder or owner, that is considered self-employment and not allowed under the TN classification.
Documentation requirements
If the professional occupation requires a bachelor’s degree (baccalaureate or licenciatura degree), the foreign national must hold the appropriate degree, and experience cannot be substituted for any part of the educational requirement. In the past, employers have been able to combine academic and professional experience to demonstrate that foreign nationals have the equivalent of the required degree. This is no longer accepted.
As in the past, degrees obtained outside the United States, Canada, or Mexico require an academic equivalency evaluation.
For professional occupations that require experience, the foreign national must procure experience letters from prior employers confirming their experience. Resumes or curricula vitae alone are no longer accepted.
If the professional occupation requires a license, the foreign national must be licensed to practice the profession within the U.S. state where they will work. There are limited exceptions for occupations in which certain job duties do not require a license to practice – for example, a Canadian or Mexican attorney who will not practice U.S. law but will advise on Canadian or Mexican law.
Changes to common professional categories
Scientific Technician/Technologist
Foreign nationals in this professional category must possess theoretical knowledge in certain disciplines (agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics) and the ability to either solve practical problems in those areas or the ability to apply the principles of those disciplines to research.
These foreign nationals must directly support a supervisory professional. The supervisory professional’s duties must also be those of a professional in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics.
The new guidelines specifically exclude patient care and medicine, which will have an impact on health care workers.
Management Consultants
These professionals may fill only “irregular or non-routine temporary positions,” even if they are salaried employees of a U.S. entity. If the U.S. employer is a management-consulting firm, the foreign national will be admitted only to temporarily fill what is otherwise a permanent position.
Additionally, management consultants must hold a baccalaureate or licenciatura degree and have five years of experience as either a management consultant or professional in a specialty field related to the consulting agreement.
Computer Systems Analysts
These roles require either a baccalaureate or licenciatura degree, or a post-secondary diploma plus three years of experience. (Three years of experience is not required if the individual has a baccalaureate or licenciatura degree.) U.S. or Canadian post-secondary diplomas from accredited academic institutions are accepted, as well as Mexican post-secondary diplomas obtained after two or more years of study from academic institutions recognized by the Mexican federal or a Mexican state government.
It is important to note that this category no longer includes programmers. However, some analysts may perform some programming in connection with their larger role to analyze data processing needs and to design or implement computer-based processing systems.
Hotel Managers
Hotel managers must possess a baccalaureate or licenciatura degree in hotel or restaurant management or a post-secondary diploma in those fields, plus three years of experience in hotel or restaurant management. Closely aligned degrees that may have been accepted in the past may no longer be acceptable for new cases and for extensions.
Economists
Economists must possess a baccalaureate or licenciatura degree. Officers will look at the primary objective of the role, rather than the title, to determine whether it fits within the economist category. Specifically, the updated guidelines exclude financial analysts, market research analysts, and marketing specialists from the economist designation.
Engineers
Engineers must have an engineering degree related to the specific engineering job in the United States. Computer-related roles cannot be filled by engineers unless “he or she has credentials as a computer or software engineer in a bona fide engineering specialty offering full engineering credentials.”
Other classifications
In addition to the professional categories discussed above, there are also changes to the following categories: Medical Laboratory Technologist (Canada) and Medical Technologist (Mexico and United States), Physician (Teaching or Research Only), Registered Nurses, Sylviculturists and Foresters, Disaster Relief Insurance Claims Adjusters, and Animal and Plant Breeders.
Application procedures
Both Canadian and Mexican citizens can be admitted or extend their stays in increments of up to three years. There is no limit on the number of extensions; however, the employment and stay in the United States must remain “temporary.”
Foreign nationals can now enter the United States in TN status through any Class A port-of-entry or airport with a U.S. Customs and Border Protection post accepting international flights. Canadians seeking to apply “at the border” can now do so only at pre-flight inspection stations located in Canada. Mexicans must apply at a U.S. consulate before entering and may not apply at the border.
As in the past, Mexican and Canadian nationals can apply for a change of status to TN status or extension of stay from within the United States through the U.S. Citizenship and Immigration Services. To file with the USCIS, employers must submit Form I-129 along with the necessary documentation required by the specific professional category.
Conclusion
Although much of the TN framework remains intact, some of these changes are significant. Before seeking a TN visa for your employees, please consult with any attorney in our Immigration Practice Group to ensure that the employees satisfy the updated professional criteria, possess the new required documentation, and follow the correct processes for applying and entering the United States.