NAFTA TN Visa - Scientific Technician / Technologist

Last week, one of the visas I acquired at the U.S. border was a TN visa for a Scientific Technician / Technologist.

This can be a tricky visa category because all but two of the categories of 'activity at a professional level' listed under NAFTA Appendix 1603.D.1 to Annex 1603 require a bachelor's degree. As a result, both the Scientific Technician / Technologist and Management Consultant categories are prone to abuse by ineligible applicants and are therefore scrutinized more heavily by the CBP officers. Fair enough. The CBP officers have a tough job, and deal with a wide array of professionals from a diverse background. Knowing they are awarding a work visa to an eligible candidate is difficult, and the need to respectfully distrust all candidates is part of their daily routine and is serious business.

In order to obtain this type of TN visa, it is necessary to show that the technician / technologist possess: (1) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of these disciplines, or the ability to apply principles of any of these disciplines to basic or applied research.

According to the Inspector's Field Manual, in evaluating whether a person qualifies under this category the following principles should be considered: (a) the person must be providing support to a person who is a professional in one of the named fields; (b) the offer of employment must specifically demonstrate that the work will be inter-related with that of the supervisory professional and that it will therefore be managed, coordinated and reviewed by a professional; (c) the person's theoretical knowledge has been acquired through the successful completion of at least two years of training in a relevant educational program. The training may be documented by presentation of a diploma, a certificate, or a transcript accompanied by evidence of relevant work experience; (d) the Occupational Outlook Handbook will be relied upon to determine whether the job functions are consistent with those of a Scientific Technician / Technologist; (e) persons normally doing work in the construction trades, even if in a specialized industry such as aircraft or power distribution, will not be admitted.

My client is a structural detailing firm that specializes in fabrication and erection drawings for the steel industry. Projects they work on include commercial buildings, bridges and other construction, for which they develop working drawings according to standards set forth by engineers on each project. The employee is an individual with twenty years of detailing experience and certification in Strength of Materials, Mechanics, and Autocad.

Using transcripts and his career log, we presented the request and got embroiled in a lengthy discussion about why the individual was not simply a draftsman, and how the job relates to engineering. We showed evidence that there are engineers on staff at the U.S. company and on each job the U.S. company does, and referred to numerous other sources showing that detailing requires inter-action with engineers to be effective and reactive to modifications. Apparently, this was sufficient to convince the supervisor on duty that the job was in direct support of a professional in engineering, and the visa was awarded.

Not easy, but very rewarding.

Immigration Law – Black & White & Very Grey

Last week, I presented what must be close to my three hundredth L-1 intra-company transfer visa. Most of the time, I take my Canadian clients to the Pacific Highway Border Crossing in Blaine, WA. I like this Port of Entry because the Customs and Border Protection officers tend to be very experienced and not opposed to me accompanying my clients. Due to the fact that it is a Service Port, the officers deal with all the trucks and busses, as well as special registration of certain aliens, the importation and exportation of vehicles, agricultural regulations and numerous other issues.

As with many visa categories, eligibility requirements under the Immigration and Naturalization Act for the L visa category appear straightforward, but are subject to widely varying interpretation. Before we decide to present an L visa and assemble the petition, offer letter, notice of appearance, cover letter and supporting evidence, we carefully go through the eligibility requirements –
1. Is the candidate a Canadian citizen? (If not, we do it by mail because the right to present the visa in-person at the border flows from the NAFTA and only applies to Canadians)
2. Does the candidate have a valid passport or government issued ID and their original birth certificate, baptismal certificate or other primary document?
3. Is there a proper relationship between the foreign company and the U.S. Company? (The same group of people must have ownership and control)
4. Has the candidate worked for the foreign company for one continuous year in the past three years immediately preceding the application?
5. Was the candidate working in a capacity for the foreign company that was executive, managerial or one that required specialized knowledge?
6. Will the candidate be working for the US Company in a capacity that will be executive, managerial or one that requires specialized knowledge?
7. Do both companies have proof of systematic, continuous, on-going business?
8. Has the US Company been operating for less that one year?
9. Do both companies have employees, leases, tax documentation, photographs of premises and an up-to-date organizational flow chart?

Some things, like whether someone is a Canadian citizen, are very objective (black or white). You are either a citizen of Canada or you are not. Other things, such as whether a person was an employee, working in a managerial capacity or has specialized knowledge, are much more subjective (grey).

It is my experience that candidates tend to give themselves enormous credit toward the eligibility requirements, whereas the CBP officers tend to give them much less. After all, it is the CBP officer’s job to ensure that there is no doubt when issuing the visa. For example, if the candidate did not receive T-4 statements for payments from the Canadian company, CBP may not consider them to have been an employee, but may qualify them as an executive for L visa purposes if listed as a director. If the company had numerous persons working as independent contractors, CBP may not consider them employees for the purpose of showing that the candidate was working as a manager. And if the company is based out of a residential structure, CBP may consider it a ‘paper company’ and not worthy of having executives or managers.

I often tell my clients that it is our job to slightly overdo everything so there is as little doubt as possible, and to provide a clear roadmap for the officer to find the facts he or she requires. Even the smallest thing can cause doubt, and then it is much more difficult to convince the officer that they should make assumptions in the candidates favor. CBP officers have an incredibly difficult job, and cannot be expected to take any risks or to fill in any blanks. As with many things, the presentation at the border is about the look and feel of the paper work and the rapport between the officer and the candidate, that is, whether there is any reason to disbelieve the candidate. All presentations require benefit-of-the-doubt, so you can never be too thorough. If a fact can be proven, provide the proof. If a fact cannot be proven, provide enough supporting evidence to create a favorable impression in your favor and be respectful to the officer.

U.S Immigration Attorney

Welcome!
I am Duncan Millar, an immigration lawyer with the law firm Millar Fagan-Smith, PLLC. We have offices in Bellingham and Seattle, Washington, and Vancouver, Burnaby and Coquitlam B.C. Our practice is devoted exclusively to U.S. immigration law, including green cards, work visas, sponsorship of family members, investment in the U.S., U.S. citizenship, adoption, and deportation/exclusion defense litigation.

My practice takes me to the U.S. border frequently, where I represent businesses and individuals who seek to acquire visas or have been placed in removal proceedings. As such, we interact with the Department of Homeland Security on a daily basis and regularly appear in Seattle at the Immigration Court and at the USCIS district office.

This Blog -
This blog is intended to spark discussion about U.S. immigration law and policies and to present stories that illustrate the reality of the present situation. It is my hope that my observations will start some interesting discussions and serve as a resource for those that have to deal with the border and the U.S. immigration system.

Disclaimer - None of the information presented here is to be construed as legal advice, and no attorney-client relationship is formed through the use of this blog. Immigration law is one of the fastest changing areas of law and is frequently amended. Please consult with an experienced immigration attorney before relying on any advice you find online.

Regards,
Duncan Millar
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