ALI-ABA Course of Study Immigration Law: Basics and More

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1 97 ALI-ABA Course of Study Immigration Law: Basics and More Sponsored with the cooperation of the American Immigration Lawyers Association (AILA) May 8-9, 2008 Washington, D.C. Trade NAFTA ("TN") Status By Martha J. Schoonover Greenberg Traurig LLP Mc Lean, Virginia

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3 99 I. INTRODUCTION TRADE NAFTA ( TN ) STATUS Martha J. Schoonover A. The Presidents of Mexico and the United States and the Prime Minister of Canada entered into the North American Free Trade Agreement on December 17, The U.S. President signed the North American Free Trade Agreement ( NAFTA ) implementation act into law on December 8, The NAFTA entered into force on January 1, B. Chapter 16 of the NAFTA is entitled Temporary Entry for Business Reasons and was intended to facilitate the movement of business people among Canada, Mexico and the U.S. NAFTA includes provisions for four U.S. visa categories: Temporary Visitor s for Business (B-1), Treaty Traders and Investors (E-1/E-2), Intra-company Transferees (L-1) and NAFTA professionals (TN). C. Citizens of the U.S., Mexico and Canada benefit from Chapter 16 of NAFTA; permanent residents in any of the countries do not receive any benefits under this chapter. D. The U.S.-Canada Free Trade Agreement had created a classification for professional nonimmigrants, TCs, but no visa authority was provided for. NAFTA treats the TN category as a nonimmigrant visa classification under the Immigration and Nationality Act Section 101(a)(15). Both Canadians and Mexicans may receive visas under the statute, but since Canadians are visa exempt, only Mexican citizens must apply for TN visas. 1 E. Regulatory and Statutory Authority. 1. Section 214(e) of the Immigration and Nationality Act provides statutory authority for the temporary entry of Canadians and Mexicans in accordance with NAFTA. 2. The applicable U.S. Citizenship and Immigration Services regulations are at 8 CFR 214.6, amended by DHS interim rule, 69 Fed. Reg (Mar. 10, 2004). 3. The Department of State Regulations are found at 22 CFR The Foreign Affairs Manual Provisions governing TN visas are at 9 FAM and accompanying notes. II. TN REQUIREMENTS A. Citizenship TN status. 1. Only citizens of Mexico or Canada may apply for admission to the U.S. in 1 9 FAM N1

4 100 B. Professional 1. The position offered in the U.S. must be listed in Appendix 1603.D.1 of NAFTA, Chapter 16 (See 8 CFR 214.6(c) in Exhibit 1). 2. The alien must meet the specific requirements related to the profession for which he/she seeks entry. With a few exceptions, each profession on the list requires a baccalaureate degree (or licenciatura) in the specific field as an entry-level requirement. 3. If a baccalaureate or licenciatura degree are listed as requirements, experience cannot be substituted for the degree. 4. Some occupations list alternative requirements, such as a specific number of years of experience in the field. The specific criteria for the occupation on Appendix 1603.D.1 must be proven for admission in TN status. C. Employment is Required. The alien must provide proof that he/she will engage in prearranged business activities for a U.S. or foreign employer. Self employment is not permitted under the TN category. D. Visas 1. Canadian citizens do not require visas for admission in TN status and, as detailed below, may apply for admission at the U.S. border. to the U.S. 2. Mexican citizens must apply for a TN visa before applying for admission (a) Starting January 1, 2004, Mexican citizens were no longer required to have an approved TN petition prior to visa application. Nor are employers of Mexican citizen TNs required to have an approved labor condition application prior to filing the TN visa application. Mexican citizens now present the required TN documentation at the consulate or embassy with their TN visa application. 2 III. REQUIRED DOCUMENTATION Applicants must present the following documents when applying for TN status: 3 A. Proof of Citizenship 1. Mexican citizens are required to present a passport as proof of citizenship, as they require a visa to be admitted into the U.S. 4 2 See DOS Cable No. 04 State (Jan. 2004) posted on AILA Infonet at Doc (Feb. 25, 2004) 3 8 CFR 214.6(d)(3) 4 Id. 9 FAM N6 2

5 Within the Western Hemisphere, for admission to the U.S. via air, Canadian citizens are required to have a Canadian passport. For admission to the U.S. via land or water, they are required either to have a passport or a combination of documentation to prove Canadian citizenship 5, such as a Canadian certificate of naturalization and a driver s license, for example. These requirements will change in 2009 depending upon the timetable for implementation of the Western Hemisphere Travel Initiative and a Canadian passport will be required for all entries. Canadians traveling to the U.S. from outside the Western Hemisphere must present a valid passport for admittance. 6 B. Proof of Professional Employment. The applicant must present evidence that he or she will engage in business activities at a professional level within one of the professional occupations listed in Appendix 1603.d.1 of NAFTA for a U.S. employer or entity. An employment contract or offer of employment from the employer in the form of a letter is sufficient and should include the following information: 7 1. The applicant s professional activities and daily duties, 2. Purpose of entry, 3. Projected length of stay, 4. The applicant s educational qualifications and experience, 6. Salary and how it will be paid. C. Proof of Satisfaction of Education and/or Work Experience. The employer must demonstrate to the consular officer that the applicant meets the specific education and work experience related to the position for which he or she seeks entry With few exceptions, each profession on the list requires a baccalaureate degree, licenciatura, or their equivalent in the specific field as an entry-level requirement. 2. To prove that the applicant meets the minimum educational requirements, he or she should provide the adjudicator with copies of degrees, certificates, diplomas, professional licenses, or membership in a professional organization. The adjudicator may ask to see the original document. If the degrees or other educational documents are from an educational institution outside the U.S., Canada or Mexico, then the applicant must also provide an evaluation by a reliable organization that specializes in evaluating foreign documentation. 3. A licenciatura may be used as an alternative to a baccalaureate degree. Neither degree must have been obtained from a four-year program. Therefore, three-year baccalaureate programs, which are common in Canadian colleges and universities, satisfy the 5 See for information on acceptable documents. 6 Id. 7 9 FAM 41.59N7; 8 CFR 214.6(d)(3)(ii) 8 9 FAM 41.59N7.1; 8 CFR 214.6(d)(3)(ii) 3

REVISION OF NAFTA PROFESSIONAL PROCEDURES FOR

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