The TN visa applicant, a citizen of Canada born in China, was the beneficiary of an approved I-130 petition under the family-based third-preference category for married sons of U.S. citizens.

The applicant could not proceed with the green card process due to the oversubscription of the third-preference category. In the event an immigrant visa number became available, the applicant planned to depart the U.S. and complete his immigrant visa processing at the U.S. consulate in Montreal.

The applicant now had a job opportunity as an Economist and wanted to pursue this opportunity under the TN visa category.

Analysis

Following our review of the applicant’s case, we determined that he was still eligible for a TN visa despite his approved I-130 petition. According to U.S. immigration guidance, an applicant for a TN visa may possess an intent to immigrate in the future. He or she may still remain eligible for the TN provided the applicant’s intent at the time of application for admission is to be in the United States only for a temporary period. See 9 FAM § 41.59 N5 and P. M. Morris, Exec. Dir., Admiss. & Passenger Prog., USCBP Letter (Apr. 21, 2008).

In this case, the applicant intended to enter the U.S. solely to pursue his employment opportunity. He could not immediately proceed with his green card application due to the immigrant visa backlog. If at some point in the future his immigrant case became current, he would depart the U.S. and complete his immigrant visa processing at the U.S. consulate in Montreal. This course of action would be consistent with and did not contradict the temporary entry requirements for TN status.

Solution

We prepared a TN visa application for the applicant consisting of an employer support letter and a legal brief, which explained the applicant’s immigration background and how his fact scenario did not run afoul of the temporary entry requirements for the TN visa classification as outlined in the above guidance materials.

The applicant applied for his TN visa status at a U.S. port-of-entry and received a TN valid for a three year period.

Reply: I assume you are referring to the 6 month period of admission associated with B-2 visitors (for tourism/pleasure). Technically, except for H-1Bs and L-1s, time spent in one non-immigrant category (e.g. TN visa status) does not count against potential time permitted under another nonimmigrant category (e.g. B1/B2). But you may still be called upon by USCBP to prove that you qualify for B-2 status.

In most cases, Canadian citizens cross the border into the U.S. with a simple verbal explanation of their visit. No I-94 card is issued to formally document the length of the proposed visit. If the purpose of the visit is suitable for a B-1 or B-2 visit, CBP allows the entry without complication or requesting documentation. For an individual who has recently been in the U.S., or who has had prior immigration issues, the inspecting officer may refer the person to secondary inspection. Here the officer may request proof that the individual qualifies for a B-1 or B-2 visit.

For a B-2 visit following recent employment in the U.S. under TN visa status, you may have to show proof that you (1) have resumed your residence in Canada; (2) are now employed in Canada; (3) are only entering the U.S. temporarily; and (4) are visiting only for tourism or to visit with friends or relatives and not working. While there is no specific provision for CBP to limit a B-2 visit based on a recent stay under TN visa status, if there are other concerns about the visit, the inspector may issue you an I-94 card specifically limiting your B-2 visit to 6 months or less.

The applicant, a citizen of Canada, was previously subject to a peace bond. A peace bond is a court order issued under Canadian Criminal Code § 810 that sets out specific conditions to protect the safety of others or property. These instruments restrict an individual from certain activities and function much like temporary restraining orders in the U.S.

Analysis

Any time a foreign citizen is involved in a potential criminal matter, analysis must be undertaken to assure that the individual is not rendered inadmissible to the U.S. Under INA § 212 (a) (2), an individual is inadmissible to the U.S. due to a criminal matter if he has been convicted of, or admits to committing, a crime involving moral turpitude or a violation of a controlled substance law.

Solution

In support of this individual’s application for a TN, we prepared a legal brief showing that being subject to a peace bond may not result in inadmissibility under INA § 212 (a) (2). In order to be found inadmissible under this section, an individual’s criminal matter must have resulted in a “conviction.” A “conviction” may be found under the INA in two scenarios.

The first scenario that may qualify as a conviction for immigration purposes is “a formal judgment of guilt of the alien entered by a court.” The second scenario that may qualify as a conviction for immigration purposes occurs in instances where “adjudication of guilt has been withheld” and if the following two elements are met:

(i) A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. INA § 101 (a) (48).

Our brief explained that the applicant’s prior subjection to a peace bond did not render him inadmissible to the U.S. under INA § 212 (a) (2) because the peace bond did not meet either definition of a conviction for U.S. immigration purposes.

The issuance of a peace bond did not meet the definition for a conviction under the first scenario because no formal judgment of guilt was entered by a court. A judge does not make a judgment of guilt to a criminal offense when he or she issues a peace bond. Peace bonds are issued to prevent criminal offenses from occurring. A criminal offense occurs only if an individual breaches a condition of a peace bond. We then included a copy of the applicant’s police background check to show that the peace bond expired without incident.

The issuance of a peace bond also did not meet the definition for a conviction under the second scenario because there was no withholding of guilt. No finding of guilt was made during the issuance of a peace bond. The applicant did not enter any pleas of guilty or nolo contendere, nor did he admit to any facts that would warrant a finding of guilt in the matter.

Inspection at Border

After lengthy review of the application materials, and the applicant’s court records, along with an interview of the applicant, the inspecting officer issued the TN.

The applicant, a Canadian citizen, had approximately six prior TNs under the Computer Systems Analyst category. She possessed a Master’s degree in Systems Science and a Bachelor’s degree in Computer Science.

Job Offer

The applicant had a job opportunity to work for a company that developed online and mobile payment authentication software. The position involved requirements gathering, building enhancements, testing, and managing production releases. Because of her prior experiences under the Computer Systems Analyst category, the applicant suggested to the company that the Computer Systems Analyst was the proper classification for the position. The company prepared a two page support letter, which the applicant presented for TN visa status as a Computer Systems Analyst at a land port-of-entry.

Inspection at Border

During the review of her application, the inspecting officer asked the applicant if the position involved any programming. The applicant informed the officer that it did. Despite the applicant’s attempt to explain that the position involved more than just programming, the officer denied her application stating that a programming position did not fall under the TN visa classification.

Analysis

Applicants seeking TN visa status as a Computer Systems Analyst who perform any programming duties are a favorite target of immigration inspectors. Many inspectors will deny a TN application where the applicant performs any programming. Inspectors base their denial on language from the legacy INS NAFTA Handbook (and elsewhere), which states that the Computer Systems Analyst “TN category has not been expanded to include programmers.” This type of decision ignores the actual text of the NAFTA Handbook, which states that some Computer Systems Analysts “will do some programming”, and also similar language in the U.S. Department of Labor’s Occupational Outlook Handbook (OOH). Based on the NAFTA Handbook and OOH, individuals performing solely programming duties may not qualify for TN visa status. If their duties are not limited to programming, but also involve professional level Computer Systems Analyst tasks as described in the OOH, then a case may be made for a TN.

After contacting our office for assistance with her application, we reviewed the duties of the position and determined that the position offered was more properly classified under the Software Engineer occupation. Although the position involved programming, its focus was on the entire software development life cycle for the company’s online and mobile transactions software platforms. These duties were consistent with those of a Software Engineer as described in the OOH. To overcome the denial we now had to: (i) explain the change in TN categories and (ii) establish that the applicant qualified for the TN despite performing programming duties.

Solution

Our solution involved working with the company and the applicant in the preparation of three primary documents: (i) an expanded employer support letter; (ii) a personal statement; and (iii) a legal brief. The expanded employer support letter added more details to the employer and its software products, the applicant’s job duties, and her qualifications. The personal statement explained the applicant’s prior denial, the misclassification of the position as a Computer Systems Analyst, and how the proposed position involved duties that went beyond solely programming.

The legal brief built upon the support letter and personal statement, and explained how the position offered was more properly classified under the TN category for Engineers, which according to legacy INS guidance included Software Engineers. The brief described how the proposed job duties corresponded with the description of a Software Engineer as found in the OOH. It also explained that like Computer Systems Analysts, Software Engineers may also perform some programming duties in the process of designing and developing software.

Border Review

Following an extensive review of the application materials at the port-of-entry, and an interview of the applicant, the inspecting officer approved the TN visa application for a three year period.

One potential problem arises where a TN visa worker’s son or daughter will turn 21 at some point during the proposed extension of TD visa status. This is more likely to happen now that TN visa status, and as consequence TD status, may be extended in three year periods. If only one I-539 application was filed to extend the TN visa worker’s spouse and children’s TD visa status, USCIS will approve the extension of status only up until the day before the son or daughter’s 21^st birthday. This is due to a rule found in 8 C.F.R. § 214.1 (c) (2), which discusses extensions of stay for family members and states that “[t]he shortest period granted to any member of the family shall be granted to all members of the family.” Not only does this scenario require a subsequent extension of status filing for the spouse, it also can lead to serious consequences.

As a general practice, TD dependents should have the same period of authorized stay as the TN visa worker. Anytime a disparity exists between a TN visa worker’s status and his or her family members, the potential for problems looms. For example, if the spouse neglects to file an application to extend his or her TD visa status, the spouse will be considered out of status once his or her I-94 expires. Not only will he or she be subject to removal, but the spouse will need to either go to the border (if Canadian) or to the U.S. consulate (if not Canadian) in order to obtain a new TD. Furthermore, the spouse will start to accumulate unlawful presence six months after the I-94 expires, which can lead to multiple year bars to returning to the U.S.

This problem can be avoided if two I-539 applications are filed: One for the TN visa worker’s spouse, and another for the TN visa worker’s son or daughter who will turn 21 during the proposed extension.

We informed her that once USCIS denied the B1/B2 application, she may start to accumulate unlawful presence, which could result in significant immigration penalties. The applicant was in a long term relationship with a U.S. citizen and decided to get married. Based on this relationship, she was eligible to apply for a green card as an “immediate relative.”

We then filed an I-130 petition and I-485 adjustment of status application on her behalf along with an application for an Employment Authorization Document (EAD). The filing of the adjustment of status application protected her from accruing any more unlawful presence. See Adjudicator’s Field Manual § 40.9 (b) (3) (A). The applicant was still eligible for adjustment of status even though she was no longer maintaining her TN visa status because of an exception to the ineligibility rules for adjustment of status.

Normally, an individual who is not in valid, non-immigrant status or has failed to maintain nonimmigrant status is not eligible to file for adjustment of status. See 8 C.F.R. § 245.1 (b) (5) and (6). However, individuals filing adjustment of status applications as “immediate relatives” (e.g. spouses of U.S. citizens) are exempt from this rule. Id.

The applicant obtained her EAD in a few months and then attended her I-130/AOS interview at a local USCIS office (about five months after filing). Here the government reviewed her application and interviewed her and her husband on their marriage. A decision was not issued at that time, but an approval notice came in the mail about two weeks later.

This steady demand may be partly attributed to the unavailability of H-1B visas during this period. Despite the less cumbersome requirements for the TN visa, over 100,000 more H-1B visas were issued by the DOS in 2009. This disparity may be more due to the availabilty of the H-1B visa classification  to more individuals, whereas the TN visa classification is generally limited to citizens of Mexico.

During her absence from the U.S., the applicant’s initial TN visa status had expired. She could therefore not re-enter the U.S. until her I-129 petition was approved. Rather than wait, the applicant applied for a new TN at a U.S. port-of-entry. Despite her prior approval, the inspecting officer refused to issue a TN because the applicant had only provided copies of her I-129 petition paperwork. The officer also questioned the relationship of the applicant’s degree in Polymer Engineering to the Chemist TN visa category. The applicant returned to the port-of-entry with an original, one-page employer letter. The officer refused to issue a TN because the letter was not specific enough and also lacked a salary.

The applicant then contacted our office for assistance with her TN application. We recommended that the employer withdraw its pending I-129 extension of TN status petition, which it did. We then prepared a more detailed employer support letter, which fully described the employer’s business, the applicant’s credentials, job duties, and terms of employment. We also prepared a legal brief explaining how the applicant qualified for TN visa status as a Chemist. We believed the applicant’s education was the more contentious issue with CBP as she did not have a specific degree in Chemistry.

Many inspectors believe that an individual must possess a specific degree in the field to qualify for TN visa status. With one exception, this is not an accurate interpretation of the law. In our brief we explained that the TN visa regulations at 8 C.F.R. § 214.6 (c) did not state what types of degrees were suitable for TN status as a Chemist. We then referred to a legacy INS memo, which stated that the Hotel Manager is the only TN category that requires a specific degree under NAFTA. According to this guidance, all that is required is that “[t]he degree should be in the field or in a closely related field.”

The brief then cited the U.S. Department of Labor’s Occupational Outlook Handbook (“OOH”) to illustrate the types of degrees suitable for a Chemist position. We pointed to specific language in the OOH to support our contention that an individual with a degree in Engineering could qualify for a Chemist position. We also provided additional research showing that Chemist positions frequently call for an individual with a degree in Chemistry or Polymer Engineering.

Returning to the port-of-entry with these materials, the applicant was approved for TN visa status as a Chemist for a three year period.

Reply: The F-1 OPT regulations provide for two scenarios that could lead to the denial of admission despite a facially valid OPT/EAD card. Under 8 C.F.R. § 214.2 (f) (10) (ii) (B), the authorization to engage in optional practical training (OPT) automatically terminates when the student transfers to another school (for those still attending) or begins study at another educational level. Also, accumulating more than 90 days of unemployment during your OPT may result in a status violation and could render an OPT/EAD invalid. See 8 C.F.R. § 214.2 (f) (10) (ii) (E).

The F-1 OPT regulations do not provide any other grounds for the automatic termination of an OPT/EAD. The regulations do state that an individual with an unexpired EAD who is otherwise admissible to the U.S. may return to the U.S. to resume employment after “a period of temporary absence.” 8 C.F.R. § 214.2 (f) (13) (ii). However, in order to re-enter the U.S., in addition to the unexpired EAD, the student must have an I-20 ID form endorsed by the school within the last six months. Id.

If you file for TN visa status at a port-of-entry, and you are denied the TN because the inspector does not think you qualify for the occupational category, or that the position is not a profession listed in NAFTA, then you may be allowed re-entry with a valid, unexpired OPT/EAD. The burden is always on the applicant to establish eligibility for an immigration benefit. So you may want to come equipped with back-up documentation to support your case for re-entry on the OPT/EAD (e.g. recent I-20 and/or employer letter requesting admission on OPT/EAD). If the denial is due to an immigration violation (e.g. overstay, fraud, or misrepresentation) or based on an allegation of immigrant intent, then the inspector may deny you entry under the OPT/EAD as well.

You can avoid the risk of being denied re-entry to the U.S. altogether by filing for a change of status from F-1 to TN visa status by using form I-129. In this scenario, you can obtain your TN by mail and not travel to the border. If the petition is denied, you should be able to remain in the U.S. until your OPT/EAD expires (plus the 60 day grace period). You may have to request expedited processing in order to ensure a quick approval of the TN. Otherwise, the petition may not be approved for several months, which would leave you without employment authorization once your OPT expired.

The non-petition based fee increase would affect Mexican citizens filing TN visa applications and spouses and children requiring TD visa stamps. The DOS is raising the visa application fee for these types of visas from $131 to $140.

Petition-based visa application fees will be increasing significantly. For example, application fees for H1B, L, O, P, Q and R visas will increase to $150; for E visas to $390 (included although not a petition-based visa); and for K visas to $350.

This is only a proposed rule. The fee increases may not go into effect until after a sixty day commentary and review period.