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"By Air, Land And Sea - When The POE Becomes A Brick Wall"
Part 2 held on January 14, 2004
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From Henry J. Chang
1. TN Status
2. L-1 Status
- Definition of "temporary entry" for the purposes of TN status appears at 8 CFR §214.6(b).
- The prohibition on self-employment for the purposes of TN status appears in the definition of "engage in business activities at a professional level" - 8 CFR §214.6(b).
- This definition suggests that, as long as the alien is not the "sole or controlling shareholder or owner" of the United States entity, he or she is not self-employed. However, the NAFTA Handbook takes a more restrictive view. - NAFTA Handbook §15.5(f)(1)(F).
- The prohibition does not mean that TN aliens must be salaried employees of the United States entity. The bar on establishment of a business or practice in which the Canadian or Mexican citizen will be self-employed is in no way intended to preclude a Canadian or Mexican citizen who is self-employed abroad from seeking entry to the United States pursuant to a pre-arranged agreement with an enterprise owned by a person or entity other than him/herself located in the United States. - NAFTA Handbook §15.5(f)(1)(A).
- In addition, a TN alien may be a salaried employee of a corporation owned by the alien (i.e. a personal holding corporation), if the corporation has entered into an agreement with a U.S. entity that is not owned or controlled by the alien, to provide the TN alien's services. - Exchange of correspondence between Yvonne LaFleur and attorney Joseph Grasmick, reported in 73 Interpreter Releases 235 (February 26, 1996).
- The TN scientific technician profession under the NAFTA is now much more restrictive - Legacy INS memo dated November 7, 2002 from Johnny N. Williams (Executive Associate Commissioner, Office of Field Operations) to all Regional Directors, amending Section §15.5(f)(2)(A) of the Inspector's Field Manual ("IFM").
- The formal definition of a "management consultant" for the purposes of TN status appears in the Chapter 16, Annex 1608 of the NAFTA Handbook (November 1999), which was published by Legacy INS.
- Canadian citizens may file L-1 petitions (other than blanket petitions) at the Canada-U.S. border or a pre-flight inspection facility in Canada - 8 CFR §214.2(l)(17)(i).
- Although initial blanket petitions may not be adjudicated at the port-of-entry or pre-flight inspection facility, L-1 petitions for individual Canadians seeking L status under previously approved blanket petitions may be adjudicated there - 8 CFR §214.2(l)(17)(ii).
- Canadians may still file their L-1 petition at the Service Center, if they wish - 8 CFR §214.2(l)(17)(iii). However, ports of entry are used to adjudicating L-1 petitions so they will want to review the petition for themselves, even if the Service Center has previously approved the petition. It is advisable to bring a copy of the petition to the port of entry in addition to the Form I-797 approval notice.
- If the petition is filed at the Service Center but the petitioner receives a difficult or unreasonable request for evidence, it is still possible to seek L-1 status at the port of entry. However, the petitioner is not permitted to file a petition for the same beneficiary - 8 CFR §214.2(l)(2)(i). Therefore, the petitioner should withdraw the first petition filed with the Service Center before filing at the port of entry. However, it should disclose that it previously requested L-1 status at the service center but withdrew the application to file at the port of entry.
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