Management Consultants and the Supernumerary Requirement

The Management Consultant TN category, which continues to plague practitioners on account of its amorphous nature, receives high scrutiny from immigration inspectors because it is one of the two listed occupations under which one may qualify without any formal degree. Although the scrutiny is intense, favorable adjudications are common and numerous.

One common misunderstanding of the TN category for Management Consultant is a requirement that the TN applicant may not assume an existing position or fill a newly created position. However, this requirement only applies when the TN applicant is providing services directly to the employer. Where the TN applicant is actually working for a U.S. management-consulting firm providing services to the firm’s clients, then the TN applicant may temporarily fill a permanent position.

According to the NAFTA Handbook, a manual that provides guidance to immigration officials in adjudicating TN applications, Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. The NAFTA Handbook further provides that Management Consultants may be salaried employees of the U.S. entities to which they are providing services only when they are not assuming existing positions or filling newly created positions. As a salaried employee of such an U.S. entity, Management Consultants may only fill “supernumerary” temporary positions. Supernumerary means exceeding a fixed, prescribed, or standard number; extra; or exceeding the required or desired number or amount; superfluous. On the other hand, the NAFTA Handbook states that if the employer is a U.S. management-consulting firm, the employee may temporarily fill a permanent position.