Obnoxious new TN "Guidance" from U.S. Department of State

U.S. Department of State Interpretation regarding “Scientific Technician/Technologist” under NAFTA

There has been a new development in the TN area which will not likely have any immediate negative impact on Canadians’ cases, but it is a significant development which may present a barrier to easy utilization of the TN “Scientific Technician/Technologist” category under NAFTA by Canadian nationals. It is likely to have a more acute and immediate effect in the cases of Mexican nationals

The U.S. Department of State (DOS) issued “Guidance” to Consulates on the “Scientific Technician/Technologist” under NAFTA; this is dated January 4, 2008 but released to the public on February 27, 2008.

As background, TN status under NAFTA has always been subject to some curious and rather imperious directives, usually agency declarations that the words do not mean what they say. This has been the case with other occupations on the TN schedule in the past.

The DOS’s January 4, 2008, e-mail reminder to Consular posts states,
“The technician who assists the engineer in the lab to design and develop a new technology may qualify as a scientific technician, but the mechanic who repairs and maintains that same technology after it’s built and used in everyday life, is not a scientific technician.”
To the contrary the NAFTA schedule which the U.S., Canada and Mexico negotiated and agreed upon provides,

“—Scientific Technician/Technologist 6 —Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.”

Note that that part (b) of the primary source uses “or,” not “and,” and thus the mechanical technician who has the ability to “solve practical problems” seems, to me, to qualify for TN in performing the repair and maintenance of technology after it has been “built and used in everyday life.”

However, in immigration practice, sometimes the rules are what the people in power say they are, and we must plan our efforts in light of them. A Consular Officer with “Guidance” in hand is not likely to be open to the obviously correct meaning of words “solve practical problems” in the actual NAFTA documents if the language of the “Guidance” clearly (and incorrectly, without legal basis and contrary to the primary source) directs that only designing and developing in a laboratory is permitted for a TN Scientific Technician.

For the moment, the more dramatic effect of this Guidance will occur with Mexican TNs who must apply for visas at the U.S. Consulates in Mexico. Canadians are visa-exempt, and the United States Citizenship and Immigration Services (USCIS) and United States Customs and Border Protection officers may or may not ever pick up this mis-Guidance and apply it to Canadian Scientific Technicians seeking initial TN entry or extensions of status.

Also, it seems to me that, in the some situations at least, we can craft our TN supporting statements to reflect the data and research aspects of the work that Canadian Scientific Technicians do, and explain without over-explaining that this work still qualifies, even within the more restrictive definition in this “Guidance.”

Please contact Mark G. Murov as desired to discuss this development and how it might affect ongoing or contemplated strategies for your company’s use of the TN category.

To H-1B or not to H-1B?

To H-1B or not to H-1B?

That is the applicant for Adjustment of Status’s question.

The question of whether an applicant for Adjustment of Status is “better off” keeping up his H-1B status for work authorization and using an H-1B visa “stamp” for reentry --- as opposed to using an Advance Parole (AP) travel document for international travel and reentry and his or her Employment Authorization Document (EAD) for employment, is complex to analyze and understand. Here are some basic considerations:

It is always better to have “double coverage” than to rely upon one or the other. It is more expensive to have double coverage.

USCIS has recently announced that it will deny applications for renewal EADs which are filed more than 120 days in advance of the current EAD expiration, BUT it is not uncommon for USCIS to fail to adjudicate the new EAD application within 120 days of filing, thus leaving a good faith applicant with a gap in employment authorization.

For changing employers after “job flexibility” benefits have vested (six months after filing Application for Adjustment of Status and also having an approved I-140 immigrant visa petition, and continuing to work for a U.S. employer in the “same or similar” occupation), having an Employment Authorization Document (EAD) and Advance Parole (AP) travel document makes it possible to change jobs in one day; no filings are necessary. The worker can work anywhere and can depart and reenter without any filing by the new employer and without having to visit a U.S. Consulate for a visa stamp to reenter.

It is time-consuming and can be burdensome to schedule a visit to the Consulate for visa stamping, and the duration of the stamp is limited by the duration of the underlying approved H-1B petition.

Reentering on AP almost always results in being put into “secondary inspection,” with long waits, rude treatment and a likelihood of missing a connecting flight.

After reentry on AP, a person must have an EAD to be employed; he or she will not be an H-1B as result of that entry, even if the employer’s petition is unexpired. Unauthorized employment in that situation is a statutory bar to the granting of the Application for Adjustment of Status, and the alien will then have to depart and reenter and re-file the Application for Adjustment of Status or process an immigrant visa at a U.S. Embassy abroad, and possibly have to become an H-1B again while waiting.

ICE (Immigration and Customs Enforcement Agency) takes the position that an Applicant for Adjustment of Status who last entered on AP is deportable, although it will use “discretion” as to whom this will be enforced. (It has detained and placed in removal proceedings some Muslim men who were Applicants for Adjustment of Status based on marriages to U.S. citizens; in order to avoid “profiling” it has announced that employment-based Applicants for Adjustment of Status who lack a valid, unexpired nonimmigrant status are subject to the same rule, although there have been no reports of this actually happening to employment-based Applicants for Adjustment of Status.)

If a pending I-485 and/or a concurrently filed I-140 is denied, an alien without underlying H-1B status is instantly out of status.

Taking all of the above into account, I generally advise my clients to have double coverage, to keep up a valid H-1B petition and visa stamp if at all possible, and to use the AP and/or EAD as an emergency backup instead of the primary vehicle for working and traveling.

If an applicant for Adjustment of Status finds it burdensome or expensive to keep up the H-1B petition and visa, he or she should be aware of the negative aspects of relying upon AP and EAD as sole vehicles.