Need to File For New TN for Transfer to Different Branch & Promotion?
Question: I am a Canadian Citizen. I work as a Transportation Engineer under TN Visa status. I have been promoted to the next level of Transportation Engineer with similar duties with the same employer but in different branch office. Do I need to get my TN visa renewed or changed? Please let me know.
Reply: The TN regulations state: “No action shall be required on the part of a citizen of Canada or Mexico in TN status who is transferred to another location by the same United States employer to perform the same services. Such an acceptable transfer would be to a branch or office of the employer.” Where there is a “transfer to a separately incorporated subsidiary or affiliate” a new application would have to be filed. 8 C.F.R. § 214.6 (i) (3).
Based on this provision, a transfer to a different branch office but continued employment with the same employer should not require the filing for a new TN. The next issue is whether a promotion may require a new filing. Here the new position involves “similar duties.” The regulations do not require a new TN filing for transfers with the same employer “to perform the same services.”
Is this worker still providing the “same services”? It is unclear whether "same services" means (1) merely working in the same TN occupational category (e.g. the TN Engineer category); or (2) providing the same job duties as outlined in the employer's TN application support letter.
The regulations provide one additional source of guidance. Regarding the readmission of authorized TN visa workers, the regulations state that TN visa workers may be readmitted to the U.S. with a valid I-94 without presenting application materials "provided that the original intended professional activities and employer(s) have not changed..." 8 C.F.R. § 214.6 (g) (1). Again, the language is not entirely clear if working in the original TN occupational category is sufficient, or if strict adherence to the duties in the employer support letter is required.
We may look at how U.S. immigration has treated this issue with respect to other non-immigrant categories for additional guidance. We must do so with caution, as there may be nuances within these other non-immigrant categories, which do not apply to the TN, and that may diminish our ability to rely on this guidance. Under the H-1B regulations, a new petition is required when there are “any material changes in the terms and conditions of employment.” 8 C.F.R. § 214.2 (h) (2) (i) (E).
According to legacy INS guidance, a new petition is not required for “minor, immaterial changes in the conditions of the alien’s employment.” Aleinikoff Memo (Aug. 22, 1996). These types of minor changes can be addressed when filing for an extension of status. A change in job duties from one specialty occupation to another would require the filing of a new H-1B petition. Id.
A change in promotion to a higher position within the same occupation would not normally require the filing of a new H-1B petition if the individual still relies upon the same academic training. LaFleur Letter (Oct. 12, 1995). For example, within the H-1B context, a promotion of an accountant to a supervisory accountant would not require a new petition provided the individual is still utilizing his or her theoretical knowledge of accounting. Id.
As these materials dealt with the H-1B visa classification, it is uncertain to what extent their guidelines would be applied to the TN visa classification. A strict interpretation of the regulatory language for the TN requires a new petition in this scenario unless the individual is providing the same services. A conservative approach would be to file a new petition to account for any additional responsibilities. A more speculative approach would be to rely on the H-1B guidance and not address a promotion until filing for an extension of TN status.