Question: I can't seem to find a category under which Environmental Engineer/scientist and/or Air quality professionals are entitled for a TN-1 permit. I, therefore, will appreciate any post/advice/suggestions.

Reply: An Environmental Engineer or Air Quality position may qualify under the Engineer TN visa category. According to a legacy INS Memo, “all engineering specialties are included” for eligibility under the TN visa category for Engineers. INS – Cronin Memo (07-24-00).

The Occupational Outlook Handbook, a Department of Labor publication utilized by U.S. immigration officials as a reference tool for their occupational analysis, states that the Federal Government’s Standard Occupational Classification (SOC) system recognizes 17 engineering specialties, which includes Environmental Engineers. The OOH defines this engineering specialty as follows:

Environmental engineers develop solutions to environmental problems using the principles of biology and chemistry. They are involved in water and air pollution control, recycling, waste disposal, and public health issues…They conduct research on the environmental impact of proposed construction projects, analyze scientific data, and perform quality-control checks. Environmental engineers are concerned with local and worldwide environmental issues. They study and attempt to minimize the effects of acid rain, global warming, automobile emissions, and ozone depletion…OOH, Engineers (2008-2009).

Based on the INS Memo and OOH entry above, an Environmental Engineer or Air Quality position should qualify under the Engineer TN visa category

References:

• INS – Cronin Memo (07-24-00).

• OOH - Engineers (2008-2009).

• OOQ - Environmental Engineers (2001).

When evaluating whether a position falls under one of the TN occupational categories, in addition to the Occupational Outlook Handbook and O*Net Online, I frequently turn to the Occupational Classification System Manual, used by Bureau of Labor Statistics (BLS) field economists to classify occupations for purposes of collecting compensation data.

The OCS classifies occupations into nine Major Occupation Groups (“MOGs”), which are in turn divided into several sub-MOGs. Major Occupational Group (MOG) “A”, for Professional And Technical Occupations, includes many of the occupations that qualify for TN visa status.

My first stop in the OCS is the Census Occupation Index Listings where I search for the particular occupation. Cardiovascular Technologists fall under the Professional And Technical Occupations MOG, and within the sub-MOG for Health Technologists And Technicians. This sub-MOG includes:

A203 Clinical Laboratory Technologists and Technicians

A204 Dental Hygienists

A205 Health Record Technologists and Technicians

A206 Radiologic Technicians

A207 Licensed Practical Nurses

A208 Health Technologists and Technicians, N.E.C. ("Not Elsewhere Classified").

Cardiovascular Technologists fall under the A208 Health Technologists and Technicians, N.E.C. category, which is defined as:

Exclude Clinical Laboratory Technologists and Technicians (A203), Health Record Technologists and Technicians (A205), and Radiologic Technicians (A206). Persons concerned primarily with performing technological functions in the fields of medicine, dentistry, environmental, or public health. The necessary knowledge is usually, at the minimum, acquired through study at a technical institute, junior college, or equivalent on-the-job training or experience. Include such occupations as E.K.G. Technician, Health Sanitarians, EMTs, etc.

The only occupations available for a TN visa classification under the Health Technologists and Technicians sub-MOG include Clinical Laboratory Technologists and Technicians. As provided in the above definition, Cardiovascular Technologists are specifically excluded from this occupation.

Based on the OCS manual, there is little support for the argument that Cardiovascular Technologists fall within one of the TN visa occupational categories.

References:

• Occupational Outlook Handbook - Cardiovascular Technologists and Technicians (2008).
• O*Net Online - 29-2031.00 - Cardiovascular Technologists and Technicians.
• Occupational Classification System Manual (OCSM).

Question: I am considering starting my own consulting business. I have 6 years of experience in the financial services software industry (I am assuming that would qualify me under the Management Consultant category) but I do not have a bachelor’s degree.

I would offer my services to financial advisors in the U.S. by helping them determine what software products would be best for them to use by analyzing their current clientele and office structure. I would also give them advice as to how they can improve the efficiency of the office. The length of each engagement would depend on the size of the office. Each office would have no connection to each other as the advisors work independently. Would I need to apply for a TN Status each time I have a signed contract for a new engagement?

Reply: Assuming you can qualify for the Management Consultant category, I see two possible arrangements for your provision of services under TN visa status.

1. If you enter into a consulting contract with each individual U.S. client, then you should obtain a TN for each client.
2. If you contract with a U.S. consulting company, and obtain a TN through this company, then you may provide services to clients who contract with the U.S. consulting company. In this scenario, you would not need to apply for additional TNs to serve these clients.

Other alternatives that would avoid multiple immigration filings for each client include (a) setting up an E-1 business or (b) establishing your company in Canada for a one year period, and then opening up a new U.S. office under the L-1 visa category.

Question: I am in the USA on my Canadian passport as a visitor for the past 1 month. Do I need to go out of the USA to apply for a TN visa or I can apply within the US as well? Also, I am about to marry an Indian National, who is on an H-1B visa. He has not applied for a green card. Please advise how this would affect my case for the TN visa.

Reply: The more efficient process for your TN would be to depart the U.S. and apply for the TN at a U.S. port-of-entry border crossing . Filing for a TN through the USCIS Service Center using Form I-129 while as a visitor can be tricky, not to mention time consuming. First, the I-129 petition can take 2-3 months for an approval (you cannot work until the petition is approved), but you can request expedited processing for an additional $1000 filing fee (decision within 15 calendar days).

Second, in order to be eligible for a change of status within the U.S., you need to provide proof that you possess authorized U.S. immigration status. This can be difficult for Canadian visitors because they usually do not receive an I-94 card, which documents authorized U.S. immigration status and is generally required for change of status petitions. USCIS may accept alternative evidence, such as a U.S. admission stamp in your passport, but because this would be unusual, USCIS may issue a request for additional evidence of your U.S. immigration status, which you may not be able to provide.

Marriage to an individual who possesses H-1B status, in and of itself, should not have an adverse effect on your prospects for a TN.

Read more about where to file for a TN visa and the change of status process.

My colleague, Sarah E. Murphy, Esq., has recently launched the blog: Border Immigration Lawyer.

This site will provide the public with information about common U.S. immigration issues and will focus specifically with land border ports of entry problems such as entry denials, grounds of inadmissibility, expedited removal, and waivers.

Bookmark her site and check back frequently for updates, news, and questions!

• Registered Nurses.
• Physical Therapists.
• Occupational Therapists.
• Medical Laboratory Technologists/Medical Technologists.
  

Since the implementation of the Health Care Worker certificate rule, there has been much confusion on which professions are covered under this rule for the Medical Technologists and Technicians occupational category. The Commission on Graduates of Foreign Nursing Schools (“CGFNS”), an entity authorized to issue health care worker certificates, limits the Medical Technologists and Technicians category to cover only “medical laboratory generalists.” CGFNS has outlined two groups of professions that fall outside the scope of the “medical laboratory generalists” covered under the Health Care Worker certificate requirement. More...

A U.S. citizen may file an application for lawful permanent resident status (i.e. a “green card”) on behalf of a foreign citizen spouse, who is currently present in the U.S. under TN visa status.

Generally, the first step of this process involves the U.S. citizen filing a Form I-130, Petition for Alien Relative, on behalf of the foreign citizen spouse for classification as an “immediate relative.” Under the immediate relative classification, the petition is not subject to the annual numerical limitations applicable to the other family-based green card categories like the First through Fourth preference categories. This means that the petition may move from the first step of the process (I-130) to the second step without interruption due to immigrant visa number backlogs.

More on Filing the I-130 Petition.

Reply: Yes, you can obtain TN visa status for a part-time job. The TN visa regulations also permit the performance of training functions, including conducting seminars, as long as the training is in one of the TN occupational categories and the subject matter presented discussed “professional level” issues in the field. 8 C.F.R. 214.6 (c) n.1; NAFTA Handbook (1999).

The Geophysicist profession is listed on the NAFTA TN occupational list. Whether the subject matter of your seminar involves Geophysics requires further analysis. Any documentation supporting this should be documented in the TN application paperwork. For more on the Geophysicist occupation, consult the Occupational Outlook Handbook.

You cannot maintain more than one non-immigrant status at a time while in the U.S. When you move to TN visa status, you relinquish your H-4 visa status. Provided your husband remains in H-1B status, you can change back to H-4 status when you stop working.

You can change from H-4 to TN status and back again in one of two ways. You can request the change at a U.S. port of entry, U.S. immigration office at certain Canadian airports, or upon arrival at a U.S. international airport. Alternatively, you can file for a change of status with USCIS. One caveat with filing through the USCIS: you cannot start working until the petition for TN status is approved, which could take 1-3 months. Premium processing of the petition is available for an additional $1,000 filing fee.

The cut-off date in the EB-2 category for individuals born in India and China jumped up 2 years. July's Visa Bulletin had cutoff dates of April 2004 for this category. Immigrant visa numbers are now available for EB-2 applicants born in India or China who have priority dates earlier than June 1, 2006.  

The EB-3 category (for skilled workers and professionals) will continue to remain unavaiable until October 2008. 

References:

• Aug. 2008 Visa Bulletin.