Favorite Trade NAFTA Issues Practice Advisory by Henry Chang, Andrew Stevenson, and Kathleen Campbell Walker

Transcription

1 Favorite Trade NAFTA Issues Practice Advisory by Henry Chang, Andrew Stevenson, and Kathleen Campbell Walker Kathleen Campbell Walker is a past president ( ) and general counsel ( ) of the American Immigration Lawyers Association (AILA). She chairs the Immigration Practice Group of Cox Smith Matthews, El Paso office. She is board-certified in immigration and nationality law by Texas Board of Legal Specialization (TBLS) and has testified before Congress on border issues and immigration reform. Andrew Stevenson practices immigration law at the Pacific Northwest firm Lane Powell, based out of Seattle. Andrew s immigration practice includes business immigration, I-9 compliance, investor visas, waivers, admissibility issues, consequences of criminal convictions, consular processing, removal defense, complex family immigration, naturalization and citizenship, and special immigrant juvenile cases. He has also served on AILA s national CBP Committee between 2008 and the present. Henry J. Chang is a partner with Blaney McMurtry LLP in Toronto, Canada. He has practiced exclusively in the field of immigration law for 20 years. A recognized authority in the field, Mr. Chang lectures extensively on the subject in the United States and Canada; his articles have also appeared in numerous nationally- and internationally-recognized legal publications. Mr. Chang is a member of the State Bar of California and the Law Society of Upper Canada ********** 1. I am a Mexican national, my one year TN visa is expiring, but my I-94 is still valid for two years. My employer says I must have a new visa to maintain status. Do I? The I-94 governs your period of authorized stay in the United States (U.S.) assuming you are continuing to do what the consular official approved when you submitted your TN visa application. If you just need to travel to Canada or Mexico, for example, it is possible to be documentarily qualified for readmission to the U.S. with a valid passport, I-94, and an expired visa in certain circumstances, if the trip to Canada or Mexico will not last longer than 30 days. You may not have applied for a visa abroad during the visit to use this category. 22 CFR (d). Wait a minute lawyer (d)(1)(i) notes that this regulation only applies to nonimmigrant visas issued under INA 101(a)(15) and a TN visa is not included in this section. Good point, but INA 214(e)(1)(2) notes that Canadian and Mexican citizens seeing to enter the U.S. in TN status are treated as nonimmigrants under INA 101(a)(15) for NAFTA purposes. 2. I am Canadian citizen and I was recently denied admission on the northern border when I requested TN admission as a Computer System Analyst. They said something about my Indian post secondary degree. What on earth is going on? Well, under 8 CFR 214.6(c) a Computer Systems Analyst position for Appendix 1603.D.1 to Annex 1603 of NAFTA requires a baccalaureate or licenciatura degree, post secondary diploma, or post secondary certificate. A post secondary diploma though means a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada or the United States. Thus, I am sorry but your Indian post secondary degree won t work. By the way, even if the diploma was issued by an accredited institution in Canada or the U.S., the diploma is

2 supposed to be based on completion of a post secondary program, not just two random years of academic training. 3. I understand that U.S. Customs and Border Protection (CBP) plans to end the use of the paper I-94. (See AILA Infonet Doc ) So, how do I know my period of admission? Based on stakeholder calls to date with CBP, it appears that the period of admission will be referenced on the stamp made in the passport for admission. In addition, there may be an internet based resource that CBP will offer to allow a visa holder or admittee, as applicable, to print or download their TN admission period confirmation. 4. The U.S. reciprocity schedule for Mexican nationals was revised to limit TN and other nonimmigrant work related visas to one year. Does that mean I am limited to one year of admission? No, you may be admitted for up to three years depending on the requested period of time on the support letter submitted to the Department of State (DOS) and your passport validity period. In 2012, DOS has even started annotating the TN visa for Mexican nationals to indicate a period of approval for three years even though the visa is limited to one year due to the current reciprocity schedule. To make sure there is no confusion that you are entitled to admission for the full three-year period, you may wish to travel with an employer letter, which clearly states that you have been offered a job in the U.S. for three years. 5. I am a Mexican national and I have my engineering degree, but I only have my titulo and not my cedula. Can I obtain a TN visa for an engineering job? In the past - no, but apparently U.S. consular posts in Mexico will now issue the TN visa, if you are otherwise eligible, even if you have no cedula. It is important to consider if you are acting as professional engineer though, which may require state licensure to actually perform the duties in the U.S. There are certain engineering positions, which may not require licensure. (Don t take this answer as gospel, we often see a multitude of positions on this cedula issue.) 6. DOS announced that (See AILA Infonet Doc. No ) as of Valentine s Day this year, the Department will delink visa and petition validity periods under 22 CFR 41.54(c) for the L category. Thus, the visa validity will be governed by 22 CFR Does this impact Canadian or Mexican TN cases? NO Canadian Ls are visa exempt and Mexican Ls are limited to a one year period for TN visas due to the reciprocity schedule. It is helpful though if someone has been approved for a two year L extension, for example, but the maximum validity period for the visa under the reciprocity schedule is longer. For example, a German national could be approved for a five year visa under an L blanket application or based on an L petition or extension approval subject to the maximum time frame limits for L status of the

3 regulations. Please refer to the reciprocity schedule at: 7. I am a Canadian citizen lawyer seeking admission to the U.S. as a TN. However, I have not yet written the bar exam in the state where I will be working. Although I intend to write the bar exam at the earliest opportunity, are they going to give me a TN before this occurs? In the past, Legacy INS would only grant TN status to applicants who could establish that they possessed the required licensure in the proposed profession. On October 13, 2004, however, DHS published the final NAFTA regulations in the Federal Register [69 Fed. Reg (10/13/2004)]. The commentary to the regulations explained that a license was considered an employment requirement rather than an entry requirement and that presentation of a license was not required in order to obtain TN status, although it was the employer s responsibility to ensure that the worker obtained this license. As mentioned above, it is also possible in some cases to establish that no license is required. For example, a foreign lawyer may be able to work under the supervision of a licensed lawyer, until he or she has been admitted to the bar. In some states though in the U.S., the foreign lawyer may be limited to the practice of foreign law until licensed even with supervision. 8. I am a Canadian citizen seeking a TN to work as a Chief Technology Officer for a U.S. employer. I recently applied for a TN as a Computer Systems Analyst but was told that I don t qualify because I am working at an executive level. Are they correct? This is a discretionary issue of course, but the mere fact that you are an executive should not preclude you from seeking a TN as a Computer Systems Analyst, if you otherwise qualify. For example, if your proposed position as Chief Technology Officer requires you to apply principles of systems analysis and you possess the necessary credential to qualify, you can still successfully argue that you fall within that profession. The obvious concern is that your position is more managerial than professional and that you are no longer applying specialized principles of that profession. If you can successfully establish that you are in fact applying those principles, you should still qualify as a TN. More broadly, CBP has acknowledged that CBP officers adjudicating TN applications should not narrowly focus on job titles in deciding whether a position is appropriate for TN classification. 1 Instead, CBP officers should be evaluating the job duties of each position to see whether the work to be performed is professional-level work in a TN occupation. 9. I am a Canadian citizen but my passport expires in one year. I applied for a three-year TN but CBP only gave me a one year TN admission, saying that they can only issue it up to the expiration date of my passport. CBP indicated that once I obtain my new passport, I could go back to the port of entry and they would give me a new I-94 for the remainder of the three years that I requested. Is this correct? 1 See AILA Liaison Committee meeting notes, Fall 2011.

4 Now that Canadian citizens require passports to enter the U.S., CBP has been limiting TNs to the period of validity on the applicant s passport. This practice can create problems because you normally cannot renew a Canadian Passport until it has one year or less of remaining validity. As a result, applicants who have less than three years but more than one year validity remaining on their passports will receive an I-94 for less than the three year maximum. As for going back to the port of entry and receiving a longer period once the passport has been renewed, this may or may not be possible. In the case of a port of entry L-1, the Form I-797 will be approved for the full period requested even when the beneficiary s passport expires earlier. Such an applicant can present the Form I-797 and obtain a new Form I-94. However, in the case of a TN, the Form I-94 is the only evidence of status. During prior liaison meetings with CBP preclearance operations, CBP indicated that the applicant would have to submit a new application at later date and that they would not issue a longer Form I-94 based on the original adjudication. Some land ports of entry have suggested, however, that they will record the approval for a longer period and the applicant will be able to return to the same port of entry to obtain a Form I-94 for a longer period. 10. I am a Canadian citizen and I am about to be hired by a U.S. company. I have also invested in the U.S. company and currently hold a 30% ownership interest. Is this going to be considered self-employment to the extent that it will preclude me from obtaining a TN admission? As you know, 8 CFR 214.6(b) prohibits self-employment. It also states that a professional will be deemed to be self-employed, if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner. However, this does not mean that you are safe just because you own less than 50% of the shares. According to the CBP Inspector s Field Manual (IFM), even if the receiving enterprise is legally distinct from the foreign national (e.g. such as a corporation having a separate legal existence), entry as a TN must be refused if the receiving enterprise is "substantially controlled" by that foreign national. CBP officers should consider the following factors, among others, in determining whether the alien "substantially controls" the U.S. entity: i) Whether the applicant has established the receiving enterprise; ii) Whether, as a matter of fact, the applicant has sole or primary control of the U.S. enterprise (regardless of the applicant's actual percentage of share ownership); iii) Whether the applicant is the sole or primary shareholder of the business; or iv) Whether the applicant is the sole or primary recipient of income from the business. So, it is still possible for CBP to allege that you are engaged in self-employment even though you only possess 30% ownership and control. If you can successfully argue that you do not substantially control the U.S. company, it is possible to acquire TN status.

5 11. I am a Canadian citizen and I have held TN status for over ten years. I was recently denied entry based on immigrant intent just because I have been in the U.S. for a long time. I have never applied for permanent residence and I have no intention of doing so. I no longer have, however, a personal residence in Canada. Am I really ineligible for TN admission because of this? Dual intent is not formally recognized in the Immigration and Nationality Act, as amended (INA), for TN nonimmigrants. As TN status is a nonimmigrant classification, CBP can technically deny admission based on immigrant intent. However, when this type of denial occurs on the northern border, something more than a long period of nonimmigrant status is usually present. For example, when the applicant has either filed an application for adjustment of status or has initiated the immigrant visa process abroad, CBP will clearly deny the alien s admission as a TN. It is true that denials have occasionally occurred merely because an applicant has been in the U.S. for an extended period, has married a U.S. citizen, or perhaps is the beneficiary of a pending or approved petition. The applicants in these cases, however, are not clearly ineligible for TN status. In a 2008 letter from Paul Morris, Executive Director, Admissibility and Passenger Programs [Posted on AILA InfoNet at Doc. No (April 21, 2008)], CBP opined that the mere filing or approval of an immigrant petition would not automatically constitute intent on the part of the alien to abandon his or her foreign residence. If it is possible to establish nonimmigrant intent even if the foreign national is the beneficiary of an approved petition for permanent residence, it seems unreasonable to deny a TN merely because you have held nonimmigrant status for an extended period. The lack of an actual foreign residence has occasionally arisen during TN adjudications on the northern border. Typically, it does not appear to be a significant factor in the adjudication. Applicants who are asked about their lack of an actual foreign residence sometimes respond by saying that wish they could carry the cost of two residences but are unable to do so; the issue is often dropped after that communication. 12. After entering the U.S. in TN status, I departed via plane and was required to turn in my I-94 admission card. My TN status was granted for a period ending several years from now. Do I need to re-apply? What do I do? Even if you don t have your I-94 card, the IFM allows for readmission in TN status for the remainder of a previously authorized period, if you can present substantiating evidence that you were previously admitted as a TN. According to IFM 15.5(f)(6), Canadian citizens may present a copy of the receipt showing payment of the $50 TN application fee, a previously issued TN admission stamp in their passport, or a letter of confirmation from a U.S. employer. Mexican citizens can present their TN visa along with a prior admission stamp.

6 NAFTA Revisited April 24, 2012 Additional Resources AILA Pubs: Immigration Practice Under NAFTA and Other Free Trade Agreements CBP Inspector s Field Manual The Waivers Book Occupational Guidebooks Immigration Options for Nurses and Health Care Professionals AILALINK articles: The Health Care Certification Requirement [ Immigration Options for Nurses and Allied Health Care Professionals 5 (AILA 2009)] by Frank A. Novak TN Challenges and Changes by Norka M. Zagazeta [ Immigration & Nationality Law Handbook 295 ( ed.) Using NAFTA and Other Vehicles to Enter or Depart the United States: Emerging TN, 245(k) and H-1B Gap Issues [ 2010 AILA Midyear Conference Handbook ] Hot Topics and Current Issues in the Admission of Business Travelers [ Immigration Practice Pointers 175 ( ed.) ] by Leslie K. Dellon, Susan Fortino-Brown, Eli Maroko, and Donald K. Sheppard AILA Infonet postings: AGENCY I-140 Filing Not Dispositive for TN [AILA Doc. No ] See Also CBP Letter Addresses Immigrant Intent for TN Applicant Married to I-140 Beneficiary [AILA Doc. No ] AILA Teleconference/Web Conference 2012 American Immigration Lawyers Association

7 INS Advises on TNs for Software Engineers & Technicians [AILA InfoNet Doc. No ] Expedited Removal to be Used Against TN Applicants [AILA Doc. No ] INS Guidance on Scientific Technologists [AILA Doc. No ] DOS Issues Guidance on Processing Mexican TNs [AILA Doc. No ] CBP Advises Field of Elimination of Mexican TN Requirements [AILA InfoNet at Doc. No ] CBP Guidance on TN Admission [AILA InfoNet at Doc. No ] 73 FR (10/16/08) [AILA Doc No ] DOS Final Rule on Visa Validity Dates for L Visas [AILA Doc. No ] 69 FR (10/13/04) [AILA Doc. No ] LIAISON AILA CBP Liaison Q&As (11/9/2011) Approved AILA CBP Liaison Q&As discuss FOIA, TNs, adjudications, parole, K EADs, IVs, I- 797s, Bs, I-192s, voluntary return, refugee/asylee, prioritization, and more. AILA Liaison seeks clarification from CBP on agenda items with ambiguous, missing, or incomplete answers. AILA Doc. No AILA/CBP Liaison Practice Pointer: Mexican TN Admissions (1/23/2012) AILA/CBP Liaison Committee offers a practice pointer on determining the appropriate period for admission on a TN for a Mexican citizen. AILA Doc. No AILA Teleconference/Web Conference 2012 American Immigration Lawyers Association

8 AILA/RDC Q&As with CBP Pre-Clearance Dublin (12/14/2011) The Rome District Chapter (RDC) offers approved Q&As between the RDC and the CBP Pre- Clearance office in Dublin. Topics covered include general operations, TN, B-1 in lieu of H-1, Hs, Ls, LPR abandonment, denial of entry, humanitarian parole, babe-in-arms, and more. AILA Doc. No AILA/CBP Liaison Practice Pointer: Canadian TN Admissions (1/17/2012) AILA/CBP Liaison Committee offers a practice pointer on determining the appropriate period for admission on a TN for a Canadian citizen. AILA Doc. No New England Chapter Liaison Meeting Minutes with CBP (10/21/10) New England Chapter minutes from the 10/21/10 CBP liaison meeting address B-1/B-2 admissions, TNs, abandonment of LPR status, withdrawal of applications for admission, NTA issuance, custody determinations, travel for TPS beneficiaries, visa waiver program/esta, and more. AILA Doc. No AILA/CBP Liaison Meeting Report (12/9/2010) AILA/CBP liaison report addresses local CBP liaison, Ls, Canadians, D/S, ARO and waivers, Es, TNs, H-1Bs, Bs, Os, ESTA, TRIP, fraud, I-551 stamps, G-28Is, Sentri and Nexus, and more. Please note the report has not been approved by CBP. AILA Doc. No AILA/CBP Practice Pointer: CBP Redress Processes (Updated 1/31/12) (423 KB - 1/30/2012) The AILA/CBP Liaison Committee offers a practice pointer on the CBP Complaint Resolution Program and a CBP comment card to be completed and returned by customers. The document includes various forms of contact to alert CBP of compliments, complaints, and/or misconduct. AILA Doc. No AILA/CBP Liaison Flowchart: Resolving Problems with CBP (Updated 1/31/12) (218 KB - 1/30/2012) Flowchart provided by AILA's CBP Liaison Committee on how to resolve problems with CBP when an applicant is refused entry, when a false hit or mistaken identity is made, or when a person is admitted in the wrong category. AILA Doc. No AILA/CBP Liaison Practice Pointer: Pre-Paid Mailers for Canadians under NAFTA (2/13/2012) AILA/CBP Liaison Committee offers a practice pointer on CBP s acceptance of pre-paid mailers from Canadian applicants for admission concurrently submitting an L petition at a border port of entry or preclearance facility in Canada. AILA Doc. No CBP Teleconference on Automation of Form I-94 (2/13/2012) CBP invitation for a 2/16/12 stakeholder teleconference to discuss the automation of Form I-94 (Arrival/Departure Record) and potential impacts on state/local benefit-granting agencies and employers. RSVP information included. AILA Doc. No AILA Teleconference/Web Conference 2012 American Immigration Lawyers Association

9 DOS Final Rule on Visa Validity Dates for L Visas (2/14/2012) DOS final rule on the issuance of L visas with validity periods based on the visa reciprocity schedule, whereas the current rule limits L visas to the petition validity period. (77 FR 8119, 2/14/12). AILA Doc. No AILA/CBP Liaison Practice Pointer: Take Steps to Document Improper Conduct (3/5/2012) AILA/CBP Liaison Committee advisory on redress mechanisms that have been created by CBP to address those situations where officers have misapplied the law, engaged in an unprofessional behavior, or illegal conduct. AILA Doc. No List of RDC Practice Pointers and Q&As (Updated 4/4/12) List of Practice Pointers prepared by the Rome District Chapter (RDC) and currently located on the AILA Department of State Liaison page. AILA Doc. No Other Resources Exchange of correspondence between attorney Joseph Grasmick and Yvonne LaFleur, Legacy INS Chief, Business and Trade Branch regarding use of personal holding corporation as a conduit for compensation received from the U.S. entity. (Reprinted in 73 Interpreter Releases 248) 2012 AILA Teleconference/Web Conference 2012 American Immigration Lawyers Association