INS Advises on TNs for Software Engineers and Scientific Technologists
Posted Oct 30, 2000
As many of you may be aware, the TN program, under the North American Free Trade Agreement (NAFTA), allows certain Canadian and Mexican professionals to work temporarily in the U.S. Unlike the H1B program, NAFTA has set forth a specific list of some 60 occupations that qualify as professions for TN purposes.
A frequently voiced criticism of the TN program has been that the only computer-related occupation listed in the NAFTA Appendix is Systems Analyst. In a dynamic field, with new job categories being created almost daily, computer professionals sometimes find it a stretch to qualify as Systems Analysts.
The INS has now provided guidance to the effect that Software Engineer can be classified under the Engineer category on the NAFTA list. Engineers require a bachelor's or licentiate degree or a state or provincial license. Under the INS memorandum, Software Engineers should generally possess a degree in engineering. The memo does not specify what type of engineering degree is appropriate, and says that NAFTA officers should use their judgment in deciding whether a degree in a related field will qualify.
These statements, which imply that a degree in the same or related subject is needed, appear to contradict the requirements of NAFTA. Most legal scholars would say that no particular major subject is required for a TN. For H1Bs, the issue of the relevance of the degree to the job is of key importance. TNs, in contrast, have no such requirement. Earlier this year, AILA member attorneys raised this issue with INS, and the INS responded that they were implementing new training programs for NAFTA officers. Yet the outcome of such training appears to be more restrictive standards. We have heard of several TN denials this year for people who would have qualified easily before, or who have previously been found to qualify. These incidents have involved people in a variety of fields -- not just engineers or computer professionals.
Furthermore, the memo admits that only the listing for Hotel Manager specifies a major subject, namely Hotel / Restaurant Management. The officials of the three governments who negotiated NAFTA could have included such restrictive provisions for the other professions, but apparently declined to do so. The INS is now acting to legislate those requirements into NAFTA by its own policy pronouncement.
The memo provides separate guidance on qualifications for a Scientific Technologist. Such persons must possess theoretical knowledge of, and ability to solve practical problems in, a scientific or engineering field. (Specific fields are listed in the NAFTA Appendix.) They must work in direct support of professional scientists or engineers. No degree is required, so most technologists will qualify based upon relevant experience as well as any studies or training. The memo announces that the U.S. government is engaging in a joint effort with Mexican and Canadian officials to come up with a uniform definition of "working in direct support" and "theoretical knowledge." If the Software Engineer guidance is any indication, these definitions are likely to further narrow the range of people who can be granted TNs for Scientific Technologist positions. © The Law Office of Sheela Murthy, P.C.
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