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Dec 22, 2017

Client Alert: New USCIS Guidance Narrows Definition of Economists under NAFTA

Joshua H. Rolf

Earlier this week, USCIS issued new guidance restricting the positions that fall under the TN profession of Economist. Importantly, USCIS’ guidance not only applies to future applications for TN Economists, but also to those that have been previously approved. As such, citizens of Mexico or Canada already holding TN status as Economists may face heightened scrutiny the next time they travel to the United States.

We urge all clients employing TN-admitted Individuals under the "Economist" classification to contact us immediately to discuss risks of travel and options moving forward.

Background

The North American Free Trade Agreement (“NAFTA”) created a special visa classification – TN – reserved for citizens of Mexico and Canada who are traveling to the United States to work in certain fields. Specifically, Appendix 1603.D.1 to D.3 of NAFTA and the Immigration Regulations at 8 CFR 214.6(c) provide a list of professions under which an individual may qualify for TN status, presuming they possess the requisite academic and/or professional credentials for the classification. One such TN profession is for Economists, which requires a TN Applicant to have earned a Baccalaureate or Licenciatura Degree in a related field. Despite radical changes in our economy since the TN visa regime came into effect a quarter century ago, the list of professions has not yet been updated.

TN Economists

The Department of Homeland Security (and its constituent agencies) have consistently shown greater interest in a job’s duties than its name. Simply calling an individual an Economist does not make them such – the precise nature of their activities is controlling.

Neither NAFTA nor the Regulations define exactly what duties would allow a job to fall under the Economist classification. However, due to the substantial overlap between the duties, education, and expertise that is typical for these positions, the Economist profession has long been interpreted to include individuals occupying roles akin to Financial Analysts, Market Research Analysts, or Marketing Specialists.  In other words, USCIS, CBP, and the Department of State have routinely approved such cases without issue.

Stricter Interpretation of TN Economists, Across the Board

With no warning to stakeholders, USCIS's new guidance explicitly states that its historical interpretation no longer holds, and that a TN Economist’s job duties must more closely resemble the essential activities of an Economist per the U.S. Department of Labor’s Standard Occupational Classification (“SOC”). While recognizing the similarities between these interrelated professions, USCIS’ guidance instructs adjudicators to ensure that an individual claiming to be an Economist is not actually engaging in activities that would make him or her a Financial Analyst, Market Research Analyst, or Marketing Specialists.

USCIS’ guidelines will do more than affect its own adjudications of future Petitions for TN Economists. Indeed, it appears it will also affect both adjudications of new cases filed abroad at a U.S. Consulate or with U.S. Customs and Border Protection (“CBP”), and those previously approved as TN Economists and now re-entering the United States.

Therefore, even if you presently hold TN status as an Economist, the next time you enter the United States a CBP Officer may subject you to increased scrutiny to ensure your approved position meets the parameters set forth in USCIS’ new guidance.

While measures such as rescinding DACA, implementing the travel ban, building the border wall, and attacks on family-based immigration (just to name a few) continue to rightfully garner headlines and engender activism, this quieter measure is another example of the Trump Administration’s efforts to make it more difficult for foreign nationals to lawfully travel to the United States to work, without resorting to a legislative solution. Unsurprisingly, this restriction has been applied to the North American Free Trade Agreement (“NAFTA”), an agreement the President has denigrated and promised to renegotiate. 

If you presently hold TN status as an Economist or are considering pursuing lawful status as a TN Economist, please do not hesitate to reach out to our Firm to determine whether your position continues to qualify under USCIS’ new guidance. 

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