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.