H1B and TN (Trade NAFTA) Visa Issues Raised with INS Enforcement Officials
Posted Jul 09, 2000

On June 2, 2000, representatives of the American Immigration Lawyers Association (AILA) and the American Immigration Law Foundation (AILF) met with INS enforcement officials. Among the items discussed were "roving" H1B employees, especially in the aftermath of the San Antonio, Texas raid, and problems with TN Visa adjudications. The San Antonio raid has been discussed in previous issues of the MurthyBulletin.

INS Threatens to Rescind H1B Petitions of Individuals Targeted in Texas Raid

In the last three issues of MurthyBulletin, we have been reporting developments of the Immigration and Naturalization Service (INS) policy of enforcing the Department of Labor's regulations relating to H1B Petitions. This week the saga continues: the INS has instituted proceedings to rescind H1B petitions of the individuals targeted in the San Antonio raid.

In the June 2, 2000 meeting with the INS, an AILA attorney questioned the INS about the threats to revoke the prior H1B approvals for the H1B employees in the San Antonio raid. In response, the INS indicated it could not comment on the particular case because it is the subject of an ongoing investigation. Yet these threats present a problem to employers who move an H1B employee and then seek to comply with INS policy by filing an amended petition.

When Should an H1B Amendment Be Filed?

It appears that one of the employers whose H1B employees were subjects of the raid attempted to file H1B amendment petitions reflecting the presence of employees in San Antonio. The INS has threatened to deny these amendments because the H1B petitions indicate a start date later than the date the H1B petitions were filed, and the INS knew the beneficiaries were already in that job location at the time. Prior INS guidance with regard to H1B amendments stated that it is possible either not to file an H1B amendment at all in many circumstances, or to file an H1B amendment after a change in employment location, as long as it is filed soon after the change takes place. The INS now appears to be taking the position that an H1B amendment must be filed prior to the employee's move to another location.

The result is further confusion, as it has never been clear that the law requires amendments at all for a change of location. In an earlier letter complaining about the San Antonio action, the AILA put forth legal arguments to demonstrate that H1B amendments are not required under existing law and regulations. Caution would require that employers file H1B amendments, because INS policy appears to require such H1B amendments.

This indicates the wisdom of filing a new LCA and an amended H1B petition as soon as company representatives are aware that an H1B employee will be transferred to a new location. Even though these measures may or may not be required under the existing law and regulations, employers will probably choose to protect themselves and their H1B employees by filing H1B amendments.

TN Visa Decisions Point to Differences Between H1Bs and TN Visas

At the same June 2, 2000 meeting, complaints were raised about inconsistencies in the processing of applications at the Canadian border for the TN Visa status. As background, the TN (Trade NAFTA) status is based upon the North American Free Trade Agreement (NAFTA). Under NAFTA there is a list of professions eligible for the TN status. The H1B, on the other hand, can be used for any job for which the minimum entry requirement is a bachelor's degree in that field, as long as the job is within certain categories – these categories are much broader than the specific list for TN Visas.

Time Duration for TNs and H1Bs

The TN Visa can be granted for one year at a time, while the H1B can be issued for up to three years at a time. H1Bs require a petition approval by the INS. While Mexican TNs require petition approval, TN applications for Canadians can be made at the border.

Degree Directly Related to the Position

One important aspect of the H1B is that the beneficiary's degree must be directly related to the position. However, the same requirement does not apply to TNs. At the June 2, 2000 meeting, AILA attorneys complained that INS inspectors at certain ports of entry were imposing the relation requirement on TNs, denying cases in which the degree was not in the particular field of study.

Under NAFTA, "Systems Analyst" is the Only Computer-Related Position

Another problem has involved obtaining TNs for Software Engineers. There have been denials for the stated reason that "software engineers are not engineers." One source of this problem is most likely that the list of professions under NAFTA has not been updated, and the only computer-related position listed is Systems Analyst. INS headquarters has acknowledged that the list needs to be updated, and has stated in guidance published in about 1999 that it considers Software Engineers, Database Administrators, Programmer/Analysts etc. to also come within the NAFTA list. AILA attorneys in the June 2, 2000 meeting cited a 1995 INS opinion that also indicated that Software Engineers were included under NAFTA.

AILA suggested that further training is needed for INS officers at the borders. INS officials indicated that extensive training on NAFTA adjudications is already planned for the summer of 2000, and that the INS Field Operations Manual is also being updated.