The INS has issued a final rule governing visas issued to Mexicans and Canadians under the North American Free Trade Agreement. NAFTA creates a free trade area for Canada, the United States and Mexico and has been in force since January 1, 1994. The right to travel to the US to perform services was established in the agreement and the INS published an interim regulation on December 30, 1993 implementing this provision. The INS accepted comments on the interim rule until February 28, 1994 and has been working on a final rule for the last four years.
Siskind, Susser, Haas & Chang has provided a number of resources on its web site describing the NAFTA visa requirements based on the interim regulation. For information on this topic, visit our firm’s Toronto office home page at http://www.americanlaw.com. Further information is available in back issues of Siskind’s Immigration Bulletin, the contents of which can be searched by clicking on a link at the firm’s main page at https://visalaw.com.
This article only describes changes to the interim regulations. The major comments received by the INS came from the American Immigration Lawyers Association. In the discussion of comments attached to the new rule, the INS addressed each of AILA’s six major points.
AILA’s first question involved the effect of a strike on a Treaty Trader or Investor admitted under NAFTA. AILA asked the INS to adopt regulatory language which would provide E nonimmigrant aliens the same safeguards which both L-1 and TN nonimmigrants enjoy regarding labor disputes or work stoppages. L-1s and TNs are not considered to be violating their nonimmigrant status by participating in a labor dispute or work stoppage. The INS agreed with this comment and has amended the regulations to reflect that E nonimmigrants admitted under NAFTA are subject to the same labor dispute and work stoppage rules as TN and NAFTA L-1 nonimmigrants.
AILA’s second suggestion was that the definition of the term “engage in business activities at a professional level” should be amended to allow self-employed individuals to obtain TN classification even if the alien will be employed by a US company which is wholly-owned by the alien “where such employment is not for self-subsistence and a true employment situation exists.” AILA argued that NAFTA does not preclude this and such workers were permitted under the old US-Canada Free Trade Agreement.
The INS rejected this suggestion claiming that this would run contrary to the NAFTA Implementation Act. The INS argued that the legislation does not permit a TN visa holder to establish a business or practice in the US in which the professional will be self-employed. According to the INS, “a professional may not avoid the bar to self-employment merely be adopting the corporate form.” The INS was careful to note that self-employment OUTSIDE the US is not barred. Further, the INS stated that self-employment in the US WAS barred under the US-Canada Free Trade Agreement. Finally, the INS noted that the E-2 Treaty Investor category remains available under NAFTA for persons wishing to be self-employed in the US.
AILA’s third suggestion was that the concept of “dual intent” attach to the TN classification to accommodate business persons who may be adversely affected by filing an application for permanent residency. This would allow a TN visa holder to retain nonimmigrant status even where the alien may have filed an application for permanent residence or where the employer has filed an application for a labor certification or employment-based petition in his or her behalf.
The INS rejected this suggestion because it is not consistent with Article 1608 of NAFTA. This article defines “temporary entry” specifically as “entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence.” The INS has stated in the final rule that a TN visa holder does not have any time limit in the US, but that the person must establish nonimmigrant intent.
AILA next suggested that the interim regulations certain licensure requirements only apply to Mexicans and not Canadians and that the INS should apply equal requirements to both Canadian and Mexican citizens. The INS agreed, but noted that the same licensure requirements apply to Canadians and are noted elsewhere in the regulations.
AILA’s fifth suggestion was to allow any Port-of-Entry to adjudicate an extension of stay application and not just the Nebraska Service Center. The INS rejected this suggestion stating that it is attempting to centralize the adjudication of all petitions at service centers. According to the INS, this centralization will ensure consistency in the decision-making process and ensure that all applications are adjudicated in a timely fashion throughout the country.
AILA’s final suggestion was that the regulations be amended to specify that the professional responsibility rules applicable to American attorneys also apply to foreign consultants. The basis for this argument is a consumer protection one. The INS did not agree to change the language of the interim regulation because it considers these foreign consultants to already be covered.
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