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Chapter 7 - TN Visas for Mexican Professionals and Consultants
by Mark A. Ivener

  1. WHO IS ELIGIBLE
  2. A Mexican citizen who seeks temporary entry as a professional may be admitted to the United States under the provisions of Appendix 1603.D.1 of Chapter 16 of NAFTA on a TN visa.

    This classification of work visa is limited to Mexican professionals employed on a professional level (see List of Professionals at the end of this Chapter). There are a maximum of 5,500 TN visas issued per year. Activities at a "professional level" generally mean those undertakings that require an individual to have at least a baccalaureate degree or appropriate license demonstrating status as a professional. A professional is generally defined as a person with a minimum of a bachelor's degree where the job requires this degree as its minimum entry-level requirement. Unless otherwise specified, a bachelor's degree of three or four years is the minimum requirement for professionals.

    On the List of Professionals, Mexican management consultants are required to have either a bachelor's degree or "five years of experience in consulting or related field".

    A management consultant should generally not be a regular, full-time employee of the entity requiring service. There are, however, instances where full-time employment is a possibility. In these cases, the management consultant should not be assuming an existing position, replacing someone in an existing position, or filling a newly created permanent position. In short, the management consultant should either be an independent consultant or the employee of a consulting firm under contract to a U.S. entity, or the consultant, if salaried, should be in an extra temporary position. Management consultants provide services that are directed toward improving the managerial, operating and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity's goals, objectives, policies, strategies, administration, organization or operation.

    Unlike business persons and professionals listed in the "general service" business visitor category, professionals are permitted to be employed in the United States by only U.S. companies and receive remuneration in the United States. Athletes and entertainers are specifically omitted from the List of Professionals. Also, self-employment is specifically precluded from TN status.

  3. HOW TO APPLY
  4. A Labor Condition Application (LCA) is first filed with the U.S. Department of Labor (DOL). Then a Form I-129, Petition for Nonimmigrant Worker, and supporting documentation, including the approved LCA, is filed solely with the INS Nebraska Service Center. Once the INS approves the TN petition, it will forward the approval to a U.S. consulate where there is a $53 fee for a six month multiple entry visa. Labor Dispute Denial-A citizen of Mexico may be denied TN visa status if: the Secretary of Labor certifies to the INS Commissioner that a strike or other labor dispute involving a work stoppage of workers is in progress at the place where the alien is or intends to be employed; and the temporary entry of the alien may adversely affect either the settlement of any labor dispute that is in progress at the place or intended place of employment or the employment of any person who is involved in such dispute.

  5. DOCUMENTATION REQUIREMENTS
  6. To demonstrate business activity at a professional level, the applicant must submit documentation in the form of a job offer letter from the prospective employer in the United States, as well as supporting documents such as licenses, diplomas, degrees, certificates, or membership in professional organizations. As set out in the Immigration and Naturalization Service (INS) regulations under NAFTA, the documentation should confirm the following:

    1. The nature of the professional activity
    2. The purpose of the entry
    3. The anticipated length of stay
    4. The educational qualifications or appropriate credentials that demonstrate that the Mexican citizen has professional status
    5. That the Mexican citizen complies with all applicable state laws and/or licensing requirements for the occupation
    6. The arrangements for remuneration for services to be rendered, and
    7. An approved LCA must be submitted.
  7. DURATION OF VISA
  8. A TN visa is granted for up to six months by the U.S. consulate even though upon admission to the U.S., INS will grant up to a one year stay on Form I-94 and extensions or a new TN visa of up to one year. There is no maximum term except for management consultants who may be employed only for the term of the consulting agreement, generally no more than one to three years. An extension of a TN visa can be filed in the U.S. only at the INS Nebraska Service Center.

  9. STATUS OF SPOUSE AND MINOR CHILDREN
  10. A Mexican or non-Mexican spouse or unmarried minor child of a TN visa holder is entitled to a TD classification and the same length of stay as the principal. The spouse and unmarried minor children cannot accept employment in the United States. There is no fee for admission of the spouse and dependent minor children. Servants of TN visa holders can receive a B-1 visa.

LIST OF PROFESSIONALS

OCCUPATIONS AND PROFESSIONS ELIGIBLE FOR TEMPORARY ENTRY TO THE UNITED STATES

Sec. 214.6 Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level.

  1. General. Under section 214(e) of the Act, a citizen of Canada or Mexico who seek temporary entry as a business person to engage in business activities at a professional level may be admitted to the United States in accordance with the North American
  2. Definitions. As used in this section the terms:

    Business activities at a professional level means those undertakings which require that, for successful completion, the individual has at least a baccalaureate degree or appropriate credentials demonstrating status as a professional.
    Business person, as defined in the NAFTA, means a citizen of Canada or Mexico who is engaged in the trade of goods, the provision of services, or the conduct of investment activities.
    Engage in business activities at a professional level means the performance of prearranged business activities for a United States entity, including an individual. It does not authorize the establishment of a business or practice in the United States in which the professional will be self-employed.
    Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence.

  3. Appendix 1603 D.1. to Annex 1603 of the NAFTA. Pursuant to the NAFTA, an applicant seeking admission under this section shall demonstrate business activity at a professional level in one of the professions set forth in Appendix 1603.D1 to Annex 1603. the professions in Appendix 1603.D.1 and the minimum requirements for qualification for each are as follows:
Accountant-Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A or C.M.A.
Architect-Baccalaureate or Licenciatura Degree; or state/provincial license.
Computer Systems Analyst-Baccalaureate or Licenciatura Degree: or Post-Secondary Diploma or Post Secondary Certificate and three years' experience
Disaster relief insurance claims adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster)--Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.
Economist-Baccalaureate or Licenciatura Degree.
Engineer-Baccalaureate or Licenciatura Degree; or state/provincial license
Forester-Baccalaureate or Licenciatura Degree; or state/provincial license
Graphic Designer-Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate and three years experience.
Hotel Manager-Baccalaureate or Licenciatura Degree in hotel/restaurant management; or Post-Secondary Diploma or Post-Secondary Certificate in hotel/restaurant management and three years experience in hotel/restaurant management.
Industrial Designer-Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience.
Interior Designer-Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience.
Land Surveyor-Baccalaureate or Licenciatura Degree or state/provincial/federal license.
Landscape Architect-Baccalaureate or Licenciatura Degree.
Lawyer (including Notary in the province of Quebec)--L.L.B., J.D., L.L.L., B.C.L., or Licenciatura degree (five years); or membership in a state/provincial bar.
Librarian-M.L.S., or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a prerequisite).
Management Consultant-Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement.
Mathematician (including Statistician)--Baccalaureate or Licenciatura Degree.
Range Manager/Range Conservationist-Baccalaureate or Licenciatura Degree.
Research Assistant (working in a post-secondary educational institution)--Baccalaureate or Licenciatura Degree.
Scientific Technician/Technologist (Note 5)--Possession of (a) 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 those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.
Social Worker-Baccalaureate or Licenciatura Degree.
Sylviculturist (including Forestry Specialist)--Baccalaureate or Licenciatura Degree.
Technical Publications Writer-Baccalaureate or Licenciatura Degree, or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience.
Urban Planner (including Geographer)--Baccalaureate or Licenciatura Degree.
Vocational Counselor-Baccalaureate or Licenciatura Degree.

MEDICAL/ALLIED PROFESSIONALS

Dentist-D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental or state/provincial license.
Dietitian-Baccalaureate or Licenciatura Degree; or state/provincial license.
Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States)(Note 6)--Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience.
Nutritionist-Baccalaureate or Licenciatura Degree.
Occupational Therapist-Baccalaureate or Licenciatura Degree; or state/provincial license.
Pharmacist-Baccalaureate or Licenciatura Degree; or state/provincial license.
Physician (teaching or research only)--M.D. Doctor en Medicina; or state/provincial license.
Physiotherapist/Physical Therapist-Baccalaureate or Licenciatura Degree; or state/provincial license.
Psychologist-state/provincial license; or Licenciatura Degree.
Recreational Therapist-Baccalaureate or Licenciatura Degree.
Registered nurse-state/provincial license or Licenciatura Degree.
Veterinarian-D.V.M., D.M.V., or Doctor en Veterinaria; or state/provincial license.

SCIENTIST

Agriculturist (including Agronomist)--Baccalaureate or Licenciatura Degree.
Animal Breeder-Baccalaureate or Licenciatura Degree.
Animal Scientist-Baccalaureate or Licenciatura Degree.
Apiculturist-Baccalaureate or Licenciatura Degree.
Astronomer-Baccalaureate or Licenciatura Degree.
Biochemist-Baccalaureate or Licenciatura Degree.
Biologist-Baccalaureate or Licenciatura Degree.
Chemist-Baccalaureate or Licenciatura Degree.
Dairy Scientist-Baccalaureate or Licenciatura Degree.
Entomologist-Baccalaureate or Licenciatura Degree.
Epidemiologist-Baccalaureate or Licenciatura Degree.
Geneticist-Baccalaureate or Licenciatura Degree.
Geochemist-Baccalaureate or Licenciatura Degree.
Geologist-Baccalaureate or Licenciatura Degree.
Geophysicist (including Oceanographer in Mexico and the United States)--Baccalaureate or Licenciatura Degree.
Horticulturist-Baccalaureate or Licenciatura Degree.
Meteorologist-Baccalaureate or Licenciatura Degree.
Pharmacologist-Baccalaureate or Licenciatura Degree.
Physicist (including Oceanographer in Canada)--Baccalaureate or Licenciatura Degree.
Plant Breeder-Baccalaureate or Licenciatura Degree.
Poultry Scientist-Baccalaureate or Licenciatura Degree.
Soil Scientist-Baccalaureate or Licenciatura Degree.
Zoologist-Baccalaureate or Licenciatura Degree.

TEACHER

College-Baccalaureate or Licenciatura Degree.
Seminary-Baccalaureate or Licenciatura Degree.
University-Baccalaureate or Licenciatura Degree.


About The Author

Mark Ivener has been practicing law in Los Angeles for 30 years. He has lectured on U.S. immigration law for the World Trade Institute in New York, Houston, Chicago, and San Francisco. He has also lectured for the International Bar Association in Munich, Madrid, and New York. Mr. Ivener has participated in many immigration seminars for the Law Societies of British Columbia and Alberta and the American Immigration Lawyers Association.

He has authored the books, Handbook of Immigration Law, Volumes I and II [1980; 2nd edition, 1982; and 3rd edition, 1986; Online edition, 1999]; Doing Business in the U.S.A. Under Free Trade [1989; 2nd edition, 1990]; Get The Right Visa [1992; 2nd edition 1994]; A Complete Guide To Getting An American Visa (in Japanese) 1993; 2nd edition 1994; 3rd edition 1997]; and Have You Thought About Immigrating To The U.S.? (in Spanish) [1995]. He has also written many articles on immigration law which have appeared in the International Law Journal, the Canadian-American Bar Association Newsletter, Business and the Law and World Trade Trends.

Mr. Ivener is a founding member of IMMLAW, The National Consortium of Immigration Law Firms. Also, Mr. Ivener is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers



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