With all the scrutiny around H1B visas these days, clients and lawyers are always seeking alternative visas. There are not many, but we will explore the best options in the next few articles.
The Trade NAFTA (TN) category of the North American Free Trade Agreement (NAFTA) North American Free Trade Agreement (NAFTA),retains a strong resemblance to the H-1B category, since both categories contemplate the admission of persons of professional standing who will engage in professional-level activities. Its utility as an alternative to the H-1B category is limited, however, by the simple fact that it is available only to nationals of Canada or Mexico.
The TN category offers Canadian and Mexican professionals four obvious advantages over the H-1B category. First, an applicant for this status need not file, and obtain approval of, a nonimmigrant petition with a service center before entering the United States. A Canadian national may instead present the application at a port of entry or preflight inspection station, where processing generally takes no longer than three hours. If the TN is denied, the applicant can re apply with the necessary corrections in most cases and if no fraud was involved. A Mexican national may file an application for a TN visa directly with a U.S. consulate.
Second, Canadian TN applicants are not required to obtain approval of an LCA from the Department of Labor; this allows employers to avoid the often intrusive salary-posting and record-keeping requirements of the H-1B category. Also LCA’s take forever to obtain these days, making the process even longer.
Third, the TN category, unlike the H-1B category, does not impose a maximum period of stay. Technically, a Canadian or Mexican professional may hold TN status indefinitely, as long as he or she continues to be employed in an appropriate profession.
Fourth, there is no limitation on the number of Canadian or Mexican nationals who may be admitted in the course of a fiscal year.
The TN category of NAFTA requires each state party to admit “a business person seeking to engage in a business activity in a profession set out in Appendix 1603.D.1 [of NAFTA].” This appendix provides a listing of 63 professions with corresponding minimum educational requirements and alternative credentials. Only persons coming to work in one of these listed professions may be accommodated under the TN category; a person coming to work in the United States in an unlisted profession may not enter in TN status, regardless of the fact that his or her job has been recognized as a profession or a specialty occupation by USCIS in another context.
Eligibility for H-1B status does not therefore translate automatically into eligibility for TN status, and the preparation of a TN application requires an approach quite distinct from that involved in the preparation of an H-1B petition. One of the more important distinctions between the TN and H-1B categories, which directly affects the availability of TN status for persons who customarily would seek H-1B status, lies in the differing analysis applied by government officers to determine professional status under each category. For clients contemplating the use of the TN category as an alternative to the H-1B category, these differing analysis must be taken into account in determining whether a position for which an H-1B petition would have been filed is one that can be accommodated under the TN category.
CBP and State Department officers reviewing TN applications must operate deductively, in the sense that they will draw a conclusion from a set of given premises. This analysis, in which form takes precedence over substance, often requires more than a surface screening of an application to ensure that the relevant criteria are met (e.g., all hotel managers with degrees in hotel management are admissible in TN status; this person is a hotel manager and has a degree in hotel management; therefore, he is admissible in TN status).
USCIS officers adjudicating H-1B petitions take a more penetrating inductive approach. They must look beyond the title of the position the alien will hold to determine whether or not this position meets the criteria for a “specialty occupation.” This requires them to place substance before form and to ask whether or not the position demands “the theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor ….” 43
8 CFR §214.2(h)(4)(ii).
This inquiry also requires an affirmative answer to at least one of the following inquiries: whether (1) a bachelor’s degree or higher is normally the minimum entry requirement; (2) the degree requirement is common to the relevant industry; (3) the employer normally requires a degree or its equivalent; or (4) the nature of the job’s duties are so specialized and complex that the job usually requires a degree.
The H-1B category is therefore open-ended, in that there is no a prior limit on the number of activities that can be accommodated under it, provided that the specialty-occupation analysis is satisfied.