U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum effective November 20, 2017, that narrows the scope of occupations that are eligible for TN status in the Economist category. TN work authorization, which was created as part of the North American Free Trade Agreement (NAFTA), is available to Canadian and Mexican citizens with certain educational or licensing backgrounds and in specific occupational categories.
Until release of this guidance, the TN occupational category of Economist was acceptable for a variety of occupations, including financial analysts, market research analysts, related marketing specialists, and other managerial and specialty jobs that involved an economic or financial element. To be eligible in this category, the Canadian or Mexican applicant was required to possess a “baccalaureate or licenciatura degree” in economics or a closely related field.
U.S. employers seeking to hire Canadian or Mexican citizens into positions like these prepared documents for the applicant to take either to the border to present to U.S. Customs and Border Protection (CBP) or to a U.S. consulate or embassy overseas. A CBP or consular officer would adjudicate the application and either admit the applicant to the U.S. in TN status for up to three years or issue a TN visa with a three-year duration. There is no limit on the number of renewals an applicant can receive in TN status.
The recently released guidance now specifies that occupations and activities that “constitute a broad range of other professions related to economics” no longer qualify for TN status. For TN classification, USCIS will require that the primary activity must be economics and not primarily include activities related to other occupations. The guidance cites to the Department of Labor’s Standard Occupational Classification (SOC) for economists, which will likely be the benchmark used in adjudicating TN applications in this category moving forward.
The guidance, which is effective as of November 20, 2017, is binding on all USCIS employees. This guidance will have an impact on many employers who relied on the Economist category to provide work authorization to a variety of employees performing jobs that, previously, were easily approvable under the standard adjudication at CBP or consulates.
Employees who are already in the U.S. working in TN status in the Economist category that do not perform primarily economist activities may continue working in their positions but may face denials when it comes time to renew their TN status. Employers should consider alternative work authorization strategies for these employees, including applying for an H-1B visa.
Faegre Baker Daniels’ immigration and global mobility team will provide updates on immigration-related legislation and proposals for the rest of this year and into 2018.