Reply: Have you received a new I-94 since obtaining your I-797 approval notice (e.g. if you traveled outside the U.S.)? If so, what’s the expiration date of this I-94? If the new I-94 is only valid until your old passport’s expiration date, then you’ll need to go back to the border to get a new I-94 that is good until January 2011.
Under recent changes to the passport requirements, upon admission to the U.S., CBP may issue a TN worker’s I-94 card with a validity date coinciding with the expiration of the individual’s passport. In this scenario, a TN worker should return to the border with the renewed passport to receive an I-94 card for the remaining TN period (e.g. as shown in the I-797 approval notice).
If you have not received a new I-94 card yet, or if you did and it’s validity date coincides with your I-797 approval notice, then you do not need to go back to the border for a new I-94 card. The I-94 will remain valid despite the renewal of your passport.
]]>One of the Memo’s recommendations involved expanding the dual intent doctrine to cover other nonimmigrants such as F, O, TN, P and E visa holders. This action would treat TN visa workers who file for adjustment of status in the same manner as H-1B visa workers. Under the dual intent doctrine these non-immigrants could maintain their nonimmigrant status and travel overseas without advance parole while their Adjustment of Status applications were pending. They would also be able to maintain their nonimmigrant status if USCIS denied their adjustment applications.
The memo listed the proposed “target date” to issue a final rule for this recommendation as within 12 months. As the memo is undated, we do not know whether USCIS has begun to evaluate or act on any of the recommendations. In the event USCIS does consider expanding the dual intent doctrine to other non-immigrant categories, USCIS will first issue a Notice of Proposed Rule Making providing more information and requesting public commentary on the proposed rule change.
In a response to AILA regarding this memo, USCIS stated that “[i]nternal draft memos do not and should not be equated with official action or policy of the Department… Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected.” See AILA InfoNet Doc. No. 10080263 (posted Aug. 2, 2010).
]]>Offenses characterized as “simple assaults” are generally not considered to be crimes involving moral turpitude and therefore may not render an individual inadmissible to the U.S. under INA § 212 (a) (2). See Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989). However, courts have considered assaults as crimes involving moral turpitude if committed with a “specific intent to cause physical injury” or if involving aggravating factors. See In re Ernst Solon, 24 I&N Dec. 239 (BIA 2007).
Even if an individual’s offense is classified as a crime involving moral turpitude, he/she may qualify for an exception to this ground of inadmissibility for “petty offenses.” Under the petty offense exception, a foreign citizen is not inadmissible to the U.S. where only one crime was committed and (1) the crime was committed when the individual was under 18 and was committed more than 5 years prior to the individual’s visa application; or (2) the maximum penalty possible for the crime did not exceed imprisonment for one year and the foreign citizen was not sentenced to a term of imprisonment in excess of 6 months. INA § 212 (a) (2) (A) (ii) (II).
Determining whether a criminal matter will render an individual inadmissible to the U.S. under INA § 212 (a) (2) requires analysis of the criminal law involved and an assessment of whether or not the petty offense exception applies. In the event an individual is subject to INA § 212 (a) (2), and the petty offense exception does not apply, he/she may still be eligible for a waiver that may permit entry to the U.S. on a temporary basis including under TN visa status.
]]>A foreign citizen seeking admission to the U.S. as a non-immigrant (e.g. TN, H-1B, L-1 visa status), may file an I-192 waiver application in order to enter the U.S. despite being subject to one of the inadmissibility grounds listed in INA § 212 (a).
See AILA National CBP Liaison Meeting (March 25, 2010), AILA InfoNet Doc. No. 10072870. (Posted 07/28/10).
]]>The U.S. citizen was then required to move out-of-state due to en employment transfer. The applicant had to decide whether to remain at her current location, and continue to maintain her TN visa status with her employer, or quit her employment and move with her husband. She decided to quit.
As she no longer worked for her TN employer, and was therefore out-of-status, we advised the immediate filing of an I-130 petition and I-485 Adjustment of Status application. Generally, individuals who have failed to maintain their nonimmigrant status are ineligible for Adjustment of Status. However, there is an exception to this rule for green card applications for the Immediate Relatives (e.g. spouses) of U.S. citizens. See 8 C.F.R. § 245.1 (b) (5), (6) and (10).
One challenge with all recently married couples filing green card applications is establishing that the marriage is a bona fide marriage and not entered into solely for U.S. immigration purposes. We assisted the couple in documenting the “bona fides” of their marriage. Such evidence may include: Documentation showing joint ownership of property; documentation showing joint tenancy of a residence; documentation showing co-mingling of financial resources; birth certificate(s) of children; affidavits by third parties having personal knowledge of the marital relationship; or any other relevant documentation (e.g. documentation showing the spouse is listed as a beneficiary of an insurance policy).
Subsequent to the filing of the I-130 and I-485, the U.S. citizen spouse left his employer, which presented its own potential issue. As part of a green card application, the U.S. citizen must file an Affidavit of Support (Form I-864), which is required to show that the U.S. citizen has adequate means to financially support the applicant. The U.S. citizen must show that his/her income meets 125% of the U.S. poverty guidelines.
The U.S. citizen soon found new employment. When it came time for the final stage of the green card application process (i.e. the joint interview at a local USCIS office), we advised the U.S. citizen to inform the USCIS officer of his employment change and provide evidence that his new income continued to meet the applicable poverty guidelines.
Following the interview, the applicant received an I-797 approval notice in the mail. As the marriage was less than twenty-four (24) months old, the applicant will receive her green card on a conditional basis valid for 2 years. In order to remove this conditional basis, the applicant and the U.S. citizen spouse must jointly file an I-751 petition within 90 days of the green card’s expiration.
]]>The applicant then contacted our firm to review his case. We informed the applicant that (contrary to the inspecting officer’s opinion) the TN visa regulations did not prohibit a staffing company from sponsoring an individual for TN visa status. Under the TN regulations, all a sponsor must establish is that the applicant will perform “pre-arranged business activities for a United States entity.” See 8 C.F.R. § 214.6 (b). In outlining the documentation necessary for a TN visa application, the regulations state that “[t]he applicant must present documentation” to establish that he/she “is seeking entry to the United States to engage in business activities for a United States employer(s) or entity(ies).” 8 C.F.R. § 214.6 (d) (3) (ii) (emphasis added).
The Inspector’s Field Manual also states that in order “to constitute pre-arranged professional services” for purposes of TN status “there must exist a formal arrangement to render professional service to an individual or enterprise in the United States.” IFM § 15.5. In addition to the typical employee-employer relationship, the Manual also states that the formal arrangement may be through a contract between “the business person’s employer and an individual or an enterprise in the United States.” This provision specifically supports TN visa status for a third-party placement.
The regulations and the Inspector’s Field Manual clearly permit a TN worker to provide services to a third-party entity. In this particular case, we procured additional documentation to confirm the applicant’s third-party placement. We also prepared a legal brief explaining how the TN visa regulations permitted staffing companies to sponsor individuals for TN visa status. We then accompanied the applicant to the port-of-entry where he was issued a TN for a three-year period.
U.S. immigration authorities have begun subjecting certain non-immigrant visa applications for staffing and consulting companies to heightened scrutiny. In a recent memorandum, the government restricted the types of entities that may sponsor an individual for an H-1B visa based on the H-1B regulation’s definition of an employer. See Neufeld Memo (Jan. 8, 2010). While the appropriateness of this scrutiny with respect to H-1B visas is questionable, USCIS/CBP should not apply this new H-1B guidance to TN visa applications.
The TN visa classification is not subject to the employer sponsor requirements applicable to the H-1B visa classification as defined in the H-1B regulations and as further outlined in Neufeld Memo. The H-1B regulations have specific requirements for the petitioner’s employment relationship with the H-1B beneficiary. These requirements are absent from the TN visa regulations. As such, USCIS/CBP’s scrutiny of a TN visa sponsor’s employment relationship under the Neufeld Memo guidelines would be inappropriate.
]]>Reply: Contrary to the interpretation of some U.S. immigration officials, we believe that the TN visa regulations do not require a specific engineering degree to qualify for TN visa status as a Software Engineer.
The TN visa regulations allow a professional to enter the U.S. to render pre-arranged professional services as an Engineer provided he/she possesses one of three credentials: (1) A Bachelor’s (Baccalaureate) degree; (2) Licenciatura Degree; or (3) State / Provincial license. 8 C.F.R. § 214.6 (c).
The regulations provide no further guidance on the types of degrees suitable for a TN as an Engineer. A legacy INS Memorandum discussing the adjudication of NAFTA applications acknowledged that the TN visa Engineer category encompassed all engineering disciplines including Software Engineering. Cronin Memo (2000). On the question of the minimum educational requirements for a TN visa, this memo stated that a “degree should be in the field or in a closely related field” and that “a degree in an allied field may be appropriate.”
Referring to a TN visa for a Software Engineer, the memo stated that it “is reasonable to require the TN applicant to provide evidence of a degree in engineering just as it is reasonable to require an engineering degree for admission as a TN to perform professional level duties as civil engineer.” However, the memo also made it clear that the Hotel Manager category is the only TN category that requires a specific degree in the field.
A USCIS Bulletin also states that “Engineers may not fill computer-related jobs under TN classification unless they have credentials as computer or software engineers from institutions that recognize computer or software engineering as bona fide engineering specialties offering full engineering credentials, such as professional engineering licenses.” USCIS, Employer Info. Bulletin 11 (2005).
Some immigration officials have referred to the Cronin Memo and the USCIS Bulletin to deny TN visa applications under the Software Engineer category for individuals who do not possess an Engineering degree as outlined above. We believe that this is an overly restrictive interpretation of the TN visa regulations and contrary to U.S. Department of Labor guidance.
For example, the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which should be referred to on questions of applicable degrees, states that the “usual college majors for applications software engineers are computer science, software engineering, or mathematics.” The OOH also states that “[e]mployers who use computers for scientific or engineering applications usually prefer college graduates who have a degree in computer or information science, mathematics, engineering, or the physical sciences.”
In light of the potential for refusal on this issue, an individual who does not possess a computer or software engineering degree, but who may otherwise qualify as a Software Engineer based on a suitable degree as provided in the OOH or other authority, should consider retaining the services of an attorney who can assist in preparing an application that properly outlines the applicant’s eligibility for TN visa status.
]]>Answer: U.S. Customs and Border Protection (CBP) has in the past attempted to require a SciTech’s supervisory professional to possess an Engineering license. I do not think a license is required, however, under the TN visa regulations. A bachelor’s degree should suffice as well.
In order to qualify for TN visa status under the Scientific Technician category, one of the requirements is that the applicant must work in “direct support of professionals” in one of the ten applicable fields. See 8 C.F.R. § 214.6 (c) fn. 6. Supplemental immigration guidance further states that the individuals for whom the applicant will work in support of “must qualify as a professional in their own right” in one of these fields. Williams Memo (11-07-2002). The TN visa regulations and guidance on Scientific Technicians are otherwise silent on what credentials are required to establish an individual as a professional for purposes of a Scientific Technician application.
However, the TN visa regulations do list the types of credentials the government will accept to establish an individual as a professional Engineer for purposes of TN visa status. To qualify for TN visa status, an applicant must demonstrate status as a professional in a profession listed in the NAFTA Appendix. 8 C.F.R. § 214.6 (b). Under the regulations, an individual demonstrates status as a professional Engineer by possessing either a bachelor’s degree or a state/provincial license. 8 C.F.R. § 214.6 (c).
Based on this provision, an individual should still qualify for TN visa status as a Scientific Technician in the field of Engineering if he/she is working in support of an individual who possesses either an applicable bachelor’s degree or license.
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