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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

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[Federal Register: December 19, 2000 (Volume 65, Number 244)]
[Proposed Rules]               
[Page 79320-79323]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de00-19]                         
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 2068-00]
RIN 1115-AF85

Adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of 
the North American Free Trade Agreement

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service's (Service) Regulations by adding the occupations of actuary 
and plant pathologist to the list of professions in Appendix 1603.D.1 
to Annex 1603 of the North American Free Trade Agreement (NAFTA). This 
rule also proposes to modify the licensure requirements for Canadian 
citizens seeking admission to the United States as TN nonimmigrant 
aliens. These amendments are being proposed to reflect the agreements 
made among the three parties to the NAFTA. This rule will facilitate 
travel to the United States and benefit United States businesses.

DATES: Written comments must be submitted on or before February 20, 
2001.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 
20536. To ensure proper handling, please reference the INS number 2068-
00 on your correspondence. Comments are available for public inspection 
at the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer,

[[Page 79321]]

Immigration and Naturalization Service, 425 I Street, NW., Room 3214, 
Washington, DC 20536, telephone (202) 353-8177.

SUPPLEMENTARY INFORMATION:   

What Is the NAFTA?

    On December 17, 1992, The United States, Canada and Mexico signed 
the North American Free Trade Agreement (NAFTA). The NAFTA entered into 
force on January 1, 1994, creating one of the largest trading areas in 
the world. Besides trade, NAFTA allows for the temporary entry of 
qualified business persons from each of the parties to the agreement. 
The NAFTA is comprised of 22 chapters. Chapter 16 of the NAFTA is 
entitled ``Temporary Entry of Business Persons,'' and in addition to 
reflecting the preferential trading relationship between the parties to 
the agreement, it reflects the member nations' desire to facilitate 
temporary entry on a reciprocal basis. It also establishes procedures 
for temporary entry, addresses the need to ensure border security and 
seeks to protect the domestic labor force in the member nations.
    Articles 1605 of Chapter 16 of the NAFTA also established a 
Temporary Entry Working group (TEWG), comprised of representatives of 
each of the parties to the NAFTA, including immigration officials. The 
working group is required to meet at least once a year to consider 
several issues including the development of measures to further 
facilitate temporary entry of business persons on a reciprocal basis as 
well as proposed modifications of or additions to Chapter 16.

What Business Persons Are Covered Under the NAFTA?

    Annex 1603 to Article 1603 of the NAFTA establishes 4 categories of 
business persons to be allowed temporary entry into the territory of 
another NAFTA party. The 4 categories are: (1) Business visitors; (2) 
traders and investors; (3) intracompany transferees; and (4) 
professionals.
    Business visitors under the NAFTA are admitted to the United States 
under the B-1 nonimmigrant classification [INA 101(a)(15)(B)]. A 
business visitor is a business person from another NAFTA party who 
seeks to engage in an occupation or profession with one of the seven 
categories of business activities listed in Appendix 1603.A.1. The 
seven categories of business activities listed in Appendix 1603.A.1 
represent a complete business cycle and include: (1) Research and 
Design; (2) Growth, Manufacture and Production; (3) Marketing; (4) 
Sales; (5) Distribution; (6) After-Sales Service; and (7) General 
Service.
    Traders and investors are admitted to the United States under the 
E-1 and E-2 nonimmigrant categories, respectively [INA 101(a)(15)(E)].
    A trader is an alien in the United States admitted solely to carry 
on trade of a substantial nature principally between the United States 
and the country of the alien's nationality. An investor is an alien who 
has invested or is actively in the process of investing a substantial 
amount of capital in a bona fide enterprises in the United States.
    Intracompany transferees are admitted to the United States under 
the L-1 nonimmigrant classification [INA 101(a)(15)(L)]. An 
intracompany transferees is an alien who, within 3 years preceding the 
time of his or her application for admission into the United States, 
has been employed abroad continuously for 1 year by a firm or 
corporation or other legal entity or parent, branch, affiliate, or 
subsidiary, and who seeks to enter the United States temporarily to 
render his or her services to a branch of the same employer or as 
parent, affiliate, or subsidiary thereof in a capacity that is 
managerial, executive, or involves specialized knowledge.
    Professionals under the NAFTA are admitted to the United States as 
TN nonimmigrant aliens [INA 214(e)].

What Is a TN Nonimmigrant Alien?

    A TN nonimmigrant is a citizen of Canada or Mexico who seeks 
admission to the United States, under the provisions of Section D of 
Annex 1603 of the NAFTA, to engage in business activities at a 
professional level as provided for in such annex. The code ``TN'' is an 
admission code developed by the United States government for Canadian 
and Mexican citizens admitted to the United States as business 
professionals under the NAFTA. The TN code is not part of the NAFTA 
agreement and is not used by the Canadian and Mexican governments. The 
NAFTA parties have agreed that 63 occupations quality as professionals. 
These occupations are listed in the Appendix 1603.D.1 to Annex 1603 to 
the NAFTA found in Sec. 214.6(c). The list represents the only 
professions that will enable an alien to obtain admission to the United 
States as a TN nonimmigrant alien.

What Changes Is the Service Proposing To Make in This Rule?

    This rule proposes to add the occupation of actuary to the list of 
professions in Appendix 1603.D.1. In addition, this rule proposes to 
include plant pathologist to the Appendix 1603.D.1 as a footnote to the 
occupation of biologist. This rule also proposes to change the 
licensure requirements for Canadian TN aliens applying for admission to 
the United States. This provision is currently described at 
Sec. 214.6(e)(3)(ii)(F). This rule also proposes to remove 
Sec. 214.6(1), which relates to the transition period for Canadian 
citizens who were admitted to the United States under the United 
States-Canada Free Trade Agreement that existed before the effective 
date of the NAFTA. This rule also proposes to change all references to 
the Northern Service Center to the Nebraska Service Center to reflect 
the center's current name.

Why Is the Service Adding the Occupation of Actuary to Appendix 
1603.D.1?

    In June 1994, the American Academy of Actuaries and its Canadian 
and Mexican counterparts approached the United States Chapter 16 TEWG 
and requested that actuaries be added to the list of professions 
contained in Appendix 1603.D.1 to Annex 1603 to the NAFTA. After a 
series of negotiations and consultations, the NAFTA parties recognized 
that the occupation of actuary should be included in the list of 
professions in Appendix 1603.D.1. The parties agreed that the minimum 
educational requirements and alternative credentials for actuaries were 
a Baccalaureate or Licensiatura Degree in Actuarial Science or 
satisfaction of the necessary requirements to be recognized as an 
actuary by a professional actuarial association or society.

Why Is the Service Including the Occupation of Plant Pathologist in 
the Appendix 1603.D.1?

    In 1990, the Canadian Phytopathological Society requested that the 
occupation of plant pathologist be added to the list of professions 
contained in Appendix 1603.D.1 to Annex 1603 to the NAFTA. The Society 
noted that most plant pathologists have either a Master's degree or a 
Ph.D. and are, therefore, professionals. After much negotiation and 
consultation, the Chapter 16 TEWG agreed that the occupation of plant 
pathologist should be included to the list of professions contained in 
the Appendix. This rule proposes to include the occupation of plant 
pathologist to the Appendix in Sec. 214.6(c) as a footnote to the 
occupation of biologists. The NAFTA parties recognized that the 
occupation of plant pathologist should be referenced in the Appendix in 
the form of a footnote to the occupation of

[[Page 79322]]

biologist because the occupations are similar in educational 
requirements and duties.

What Is the Effect of Adding Actuaries to and Including Plant 
Pathologists on the Appendix 1603.D.1?

    Including a footnote for plant pathologists and adding actuaries to 
the Appendix will make it easier for individuals employed in these 
professions in one NAFTA party to obtain admission to the territory of 
another NAFTA party. Since the addition and inclusion of these 
occupations facilitates the temporary entry of individuals employed in 
these professions, it comports with one of the general principles 
described in Article 1601 of the NAFTA.

Why Is the Service Proposing To Change the Licensure Requirements 
for Citizens of Canada Seeing Admission as a TN Alien?

    The Service's current regulations, promulgated after the NAFTA went 
into effect in 1994, require the presentation of a license as a 
condition for admission of a Canadian TN to the United States.
    To ensure that the Service's regulations implementing Chapter 16 
are in conformity with the obligations of the United States under the 
agreement, this rule proposes to remove Sec. 214.6(e)(3)(ii)(F) that 
requires the presentation of a license before a Canadian citizen can be 
admitted to the United States as a TN nonimmigrant alien.
    However, Canadian TN nonimmigrant aliens will still be required to 
obtain the appropriate state license to practice their profession in 
the United States. The Statement of Administrative Action provides 
that, ``Nothing in NAFTA will permit Mexican or Canadian professionals 
to practice a licensed profession in the United States, even on a 
temporary basis, without meeting all applicable state licensing 
criteria and receiving such a license * * *.''

Does This Proposed Regulation Affect the Licensure Requirements for 
Mexican TN Aliens?

    No, the Service is not proposing to remove the licensure 
requirement for Mexican TN nonimmigrant aliens described in 
Sec. 214.6(d)(2)(iv). The NAFTA imposes several additional requirements 
on Mexican citizens seeking TN classification in the United States for 
a period of time not to exceed ten years (December 31, 2003), [See 
Annex 1603.D.5.of the NAFTA]. These requirements were described in 
section 341 of the U.S. Statement of Administrative Action that was 
presented to Congress at the time of enactment of the NAFTA 
Implementation Act [Pub. L. 103-182].
    One of the additional requirements is that the entry of a citizen 
of Mexico, as a TN nonimmigrant, is subject to the petitioning 
requirements of section 214(c) of the Immigration and Nationality Act 
and the Service's implementing regulations found in Sec. 214.2. 
Therefore, a U.S. employer seeking the services of a Mexican TN alien 
must file a Form I-129, Petition for Nonimmigrant Worker, with the 
required supporting documentation which includes any required state 
license. The Service is not proposing to remove the licensure 
requirement for Mexican citizens because the petition requirement 
remains in effect at this time.

What Is the Effect of Changing the Licensure Requirements?

    This change will have no effect on the health and welfare of United 
States citizens who may be impacted by the alien's engaging in 
professional activities in the United States. In those jurisdictions 
where a particular profession or occupation requires licensure, State 
or Federal law will continue to require the alien's employer to insure 
that the alien has the proper license before the alien commences 
employment. In this regard a Canadian TN alien will be treated in the 
same fashion as a United States worker. While this rule will ensure 
that the Service will not require the alien to present the license to 
be admitted to the United States, the alien will still have to have a 
license to work in the United States consistent with Chapter 12 of the 
NAFTA.
    It must be remembered that a TN alien is admitted into the United 
States for the purpose of engaging in business activities at a 
professional level. Like other aliens who fail to maintain the terms 
and conditions of their nonimmigrant status, a TN alien who fails to 
engage in activities at a professional level for the specified employer 
may be amenable to removal under section 237(a)(1) of the act, or 
ineligible for an extension of temporary stay under Sec. 214 or a 
change of nonimmigrant status under section 248 of the Act.
    The TN classification is not the appropriate classification for 
obtaining training or meeting professional licensure requirements in 
the United States. Such activities are consistent with the B-1 
nonimmigrant classification. As noted earlier, the NAFTA provides for 
the admission of B-1 nonimmigrant aliens.

What Technical Changes Is the Service Making in This Rule?

    This rule also proposes to remove Sec. 214.6(1). That section 
discusses the transition period for Canadian citizens who were admitted 
to the United States under the former United States-Canada Free Trade 
Agreement (CFTA). The regulatory provision is no longer applicable 
because of the passage of time since the entry into force of the NAFTA 
that subsumed the CFTA.
    In addition, this rule proposes to change all references to the 
``Northern Service Center'' in the regulation to the ``Nebraska Service 
Center,'' the current name of the facility.
    Finally, this rule proposes to remove the term ``diplomas, or 
certificates'' from the regulation at Sec. 214.6(d)(2)(ii) and at 
Sec. 214.6(e)(3)(ii) since these regulatory cites are inconsistent with 
footnote number 3 and 4 to the appendix. The footnotes clearly require 
that diplomas and certificates must be issued in Canada or Mexico, 
respectively. Therefore, diplomas and certificates received by an alien 
from another country would not establish the alien's eligibility for TN 
classification.

Does This Rule Have Any Impact on Any of the Service's Recently 
Published Interim or Proposed Rules?

    This rule does not have any affect on the Service's recently 
published interim rules relating to certificates for health care 
workers or any regulation dealing with nonimmigrant aliens. This rule 
deals solely with the NAFTA.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. Although a small number of entities maybe affected by 
the changes proposed in this regulation, actuaries and plant 
pathologists affected by this rule will benefit by their ability to 
transfer to the United States and work in their chosen field in a more 
expeditious fashion.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions

[[Page 79323]]

of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
(OMB) has waived its review process under section 6(a)(3)(A).

Executive Order 13132

    The regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the Immigration and Naturalization Service 
has determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

    This proposed rule does not impose any new reporting or 
recordkeeping requirements. The information collection requirements 
contained in this rule were previously approved for use by the Office 
of Management and Budget (OMB). The OMB control numbers for this 
collection are contained in 8 CFR 299.5, Display of control numbers.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

    Accordingly, part 214 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR Part 2.

    2. Section 214.6 is amended by:
    a. Adding the profession of ``Actuary'' immediately after 
``Accountant'' to the appendix in paragraph (c);
    b. Adding footnote 1a to the table of footnotes;
    c. Revising the profession ``Biologist'' under the heading 
``Scientist'' in the appendix to paragraph (c);
    d. Revising the term ``Northern Service Center'' to ``Nebraska 
Service Center'' in paragraphs (d)(1) and (h)(1);
    e. Removing the term ``diplomas, or certificates'' from paragraph 
(d)(2)(ii), third sentence;
    f. Removing the term ``licenses,'' from paragraph (e)(3)(ii), 
introductory text, third sentence;
    g. Removing the term ``diplomas, or certificates'' from paragraph 
(e)(3)(ii), introductory text, fourth sentence;
    h. Adding the word ``and'' at the end of paragraph (e)(3)(ii)(D);
    i. Removing the ``; and'' at the end of paragraph (e)(3)(ii)(E), 
and adding a period in its place;
    j. Removing paragraph (e)(3)(ii)(F): and by
    i. removing paragraph (1), to read as follows:


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

* * * * *
    (c) * * *

Appendix 1603.D.1 (Annotated)

* * * * *
--Actuary-Baccalaureate or Licenciatura Degree in Actuarial Science; or 
satisfaction of the necessary requirements to be recognized as an 
actuary by a professional actuarial association or society.\1\a
---------------------------------------------------------------------------

    \1\a A professional actuarial association or society means a 
professional actuarial association or society operating in the 
territory of at least one of the Parties.
---------------------------------------------------------------------------

* * * * *
--SCIENTIST
--Biologist (including Plant Pathologist)--Baccalaureate or 
Licenciatura Degree.
* * * * *

    Dated: December 13, 2000.
Mary Ann Wyrsch,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-32281 Filed 12-18-00; 8:45 am]
BILLING CODE 4410-10-M



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