The Most Frequent Mistakes CBP Officers make when Adjudicating TN Applications for Canadian Citizens (and how to overcome them)
October 11th, 2012 by SRW Lawyers
At our firm, my partner, Brian Zuccaro, a TN blogger extraordinaire (TN Visa Bulletin), and I, team up to prepare and present TN applications principally for Canadian applicants at local ports of entry.
Our diversity of cases include not only individual applicants and employees of our corporate clients, but also include applicants that are represented by other immigration lawyers who either want us to accompany their clients to the border to apply for their TN status or want us to work with them as co-counsel in developing strategy, and applicants that have been previously denied for TN status and are seeking help in rehabilitating the application and reapplying. Our office has the in-house expertise and experience, as well as a proven success rate, to resurrect and reverse TN’s that have been previously denied for various reasons.
As with most of our cases, regardless of how the case reaches our office, we first start with having the client and/or lawyer, schedule a consultation with our office so we can understand the nature of the case and any potential issues (including reasons for a previous denial, if applicable) and propose an appropriate solution that would help the client achieve their goal.
If retained, our office prepares the application packet for the Port of Entry representation, prepares the Client for their upcoming interview for TN status at the Port of Entry, and then accompanies the Client to the Port of Entry while they apply for TN status. The accompaniment is usually where my role becomes most prominent. Since the inception of NAFTA in 1989 (23 years ago) – I have noticed the following errors CBP (formerly INS) officers often make when adjudicating TN applications for Canadians:
Mistake-
- Considering U.S. economic conditions and availability of U.S. workers in determining eligibility.
Correct Approach-
- NAFTA is clear that there is no labor condition analysis required to support an application for TN status. The U.S. has agreed with its North American partners, via a reciprocal treaty, to allow employees of member countries to enter with a valid job offer and proper credentials without the need of a labor certification approval.
Mistake-
- Interviewing the client as if he was being questioned at a job interview.
Correct Approach-
- Schedule A of NAFTA sets forth each of the classifications and the required corresponding credentials. In addition, the employee must submit a job offer setting forth the terms of the offer, the remuneration, the length of time the position is being offered and the position duties. Once the applicant brings all of this documentation to the border, the only remaining function for the officer is to review the credentials and make sure that when copies are presented that they are true copies of the originals. It is my opinion that the officer has no role in determining whether or not the employee can perform the job. That is really up the employers’ discretion. The officers should not second guess the employer – the officer should only make sure the applicant possess the enumerated credentials required and job offer required by the statute.
Mistake–
- Requiring a specific or closely aligned degree.
Correct Approach-
- Schedule A of NAFTA, with the exception of hotel manager, in most instances requires only an unspecified baccalaureate degree. Consequently, individuals who possess a baccalaureate degree have met the necessary credentials required. We all know the dynamic in the working world changes. Students, post-graduation in one major, may work in a different sector and still nonetheless be eligible for TN status by virtue of possessing the necessary unspecified credential which meets the NAFTA requirements.
- As non-lawyers, CBP officers may not be familiar with the legal concept of statutory construction. Statutory construction analysis provides that if you can glean the meaning from the plain language of the regulation, then the plain meaning controls. Thus, if the Schedule only requires a baccalaureate, that’s all you need. A second rule of statutory construction holds that if in another section of the rule you make a specific requirement, while not making a specific requirement elsewhere within that same rule, then you assume that Congress knew it could differentiate and make specific requirements and having failed to do so, they did not intend to require a specific requirement.
- Consequently, TN applicants who possess the credentials required by law can qualify for TN status.
Mistake-
- Requiring the TN applicant for the category of Scientific Technician to possess a degree or some kind of formal education.
Correct Approach-
- The NAFTA regulations only require that in the category of Scientific Technician, the individual applicant possess the theoretical knowledge to solve practical problems in designated disciplines. There is no educational requirement in the law. Officers need to be reminded that individuals can still possess the ability to solve practical problems and obtain theoretical knowledge without any formal education.
To summarize, it is understandable that CBP officers are trying to do a good job in enforcing our laws and their mandate of keeping our borders safe. However, when it comes to adjudicating NAFTA applications, which is a quasi adjudication benefit, there is a tension between enforcement and adjudication. The best remedy is proper training and returning back to the original concept which created the North American Free Trade Agreement between the greatest trading partners, which is to treat each other in a unique manner to facilitate trade and the movement of people.
