Approval Obtained Despite Denial (After Eight Prior Approvals)

Prior History:

We initially represented the TN Applicant when she first applied for a TN. After two approvals with our assistance, the Applicant handled her TN applications on her own for the next six years.

Despite the eight previous TN approvals as a Graphic Designer, the Pearson PFI refused to issue a TN to the Applicant this year contending that the Applicant did not possess the educational credentials for the Graphic Designer TN category. We disagreed with Pearson’s decision and prepared a revised application with an attorney brief and additional supporting documentation to present at the Buffalo port-of-entry. Our attorney brief provided the following points.

Our Argument:

The Applicant possessed an Economics degree and Art History minor, along with substantial Graphic Design coursework, and ten years of industry experience (including the last eight years under TN status as a Graphic Designer). These credentials amply qualified her for a TN as a Graphic Designer based on legacy INS memoranda and U.S. Department of Labor materials.

Supporting Materials:

The legacy INS Memorandum by Michael Cronin on the adjudication of NAFTA applications states that the Hotel Manager is the only TN category that requires a specific degree under NAFTA. No other TN category requires a specific degree. According to Mr. Cronin’s memo, all that is required is that “[t]he degree should be in the field or in a closely related field. Officers should use good judgment in determining whether a degree in an allied field may be appropriate.” Cronin Memo 2000.

The Occupational Outlook Handbook (OOH) does not limit the qualifications for a Graphic Designer solely to the possession of a degree in graphic design. According to the OOH, in addition to a bachelor’s degree in graphic design, “[b]achelor’s degree programs in fine arts” would also be suitable for a Graphic Designer position. Additionally, designers who have obtained “a liberal arts education that includes courses in art history, writing, psychology, sociology, foreign languages and cultural studies, marketing, and business” work effectively in this field. The OOH also states that “[g]raphic designers with a broad liberal arts education and experience in marketing and business management will be best suited for positions developing communication strategies.” Last, the OOH states that “[i]ndividuals who wish to pursue a career in graphic design—and who already possess a bachelor’s degree in another field—can complete a 2-year or 3-year program in graphic design to learn the technical requirements.” Graphic Designer, OOH. Furthermore, industry materials stated that the “majority of graphic designers have a four-year degree, usually in product design, art, or art history.”

Conclusion:

In light of these supporting materials, we contended that the Applicant qualified for TN status as a Graphic Designer based on her Art History minor, the Graphic Design coursework she completed, and her significant industry experience. The Buffalo port-of-entry concurred and issued the TN.

Job Offer:

Company sought Applicant to provide technical sales, engineering, designing, and technical support with respect to the company’s systems-on-a-chip (SoC) solutions.

Theoretical Knowledge & the Ability to Solve Practical Problems:

Applicant possessed a diploma in Electronics Engineering Technology and was a Member of the Ontario Association of Certified Engineering Technicians and Technologists. He also possessed over ten years of experience in the technical sales, engineering, design, and development of electronic systems and SoC solutions. Based on these credentials, the Applicant satisfied the theoretical knowledge and ability requirements for the Sci/Tech TN visa category. See 8 C.F.R. § 214.6 (c).

Working in Direct Support of a Professional in One of the Five Disciplines.

The Applicant would work in support of the company’s Vice President of Engineering, who held a Bachelor of Science degree in Electrical Engineering, and the company’s Director of Corporate Applications Engineering, who possessed a Master of Science degree in Electrical Engineering. This working relationship satisfied the requirement that a Sci/Tech work in direct support of professionals in one of the following five disciplines provided in the regulations: “agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.” 8 C.F.R. § 214.6 (c).