The Department of State (DOS) recently amended its regulation pertaining to The North American Free Trade Agreement (NAFTA), by removing the petition requirement for Citizens of Mexico applying for nonimmigrant TN classification as NAFTA professionals. The rule reflects changes to the documentary and procedural requirements under the Immigration and Nationality Act, in implementation of NAFTA.

The rule is effective on February 10th, 2014. A citizen of Mexico wishing to come to the United States in TN classification no longer needs an approved petition to meet the qualification requirements, but may apply directly to the U.S. Embassy or Consulate abroad for a visa. The Consular Officer will adjudicate the eligibility for TN classification and, upon approval and issuance of a visa, the applicant may apply to the Department of Homeland Security for admission to the United States under TN classification.

A Citizen from Canada or Mexico may apply for TN (Trade NAFTA) status if he or she qualifies as a “professional.” The specified profession must be listed on the Annex of the North American Free Trade Agreement. The dependent spouse can apply for TD status to accompany the TN professional. The initial period of permissible stay in the U.S. is generally 3 years. There are unlimited extensions available.

In order to be classified as a “professional,” individuals must have at least a bachelor’s degree or a license as required by their profession. If the applicant does not have a bachelor’s decree or license, a combination of experience and education will not be accepted. As indicated by the list set forth in the NAFTA , certain professions such as librarians require an advanced degree beyond a bachelor’s degree.

On the other hand, “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 company sponsoring the alien. According to the FTA (Free Trade Agreement), management consultants should be (1) independent consultants coming to the U.S. to render services to an American employer for a particular project; or (2) employees of consulting firms under contract to a U.S. business to render services; or (3) employees of U.S. companies hired for special projects as opposed to an existing position or a newly-created permanent position.

If the management consultant falls into the third category, he/she must satisfy the Officer that his/her position is temporary. The TN classification is not a “dual intent” classification. Generally, management consultants provide services that are intended to improve 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.

TN professionals, as opposed to business persons and professionals listed in the “general service” business visitor category (who must be paid by an overseas source), are permitted to be employed and compensated in the United States by an American organization. The List of Professionals does not include athletes and entertainers. It should be noted that individuals who are self-employed are subject to very strict rules which limit the circumstances in which they may obtain TN classification.

For additional information about TN classification as a professional from either Canada or Mexico under the TN Annex 1603.d.1, please feel free to contact the U.S. and Canadian immigration lawyers and immigration attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. – THE IMMIGRATION LAWYERS AT VISASERVE – at or by calling our office at 201-670-0006 (x107).