TN Visa Denials & Protection of U.S. Jobs during Recession
Question: Do you have any thoughts of how the current U.S. economy is going to affect the TN application process?
Reply: I have not received any recent reports about USCIS, CBP, or U.S. Consulates denying more TNs lately in order to protect the U.S. labor market during the recession. CBP has used this argument in the past even before the current financial crisis, so I would not be surprised if CBP starts to deny more TNs on this basis.
While applicants should be aware that a denial of a TN application based on vague labor market protectionist theories is contrary to the provisions of NAFTA, a TN application can be denied to protect the domestic labor force, but only based on two grounds.
The purpose of the NAFTA immigration provisions was to “reflect the special trading relationship now established between the United States, Canada, and Mexico, and recognize the desirability of facilitating temporary entry on a reciprocal basis and of establishing transparent criteria and procedures for such temporary entry.” 58 FR 69205, 69205 (Dec. 30, 1993).
The NAFTA parties also recognized “the continued need to ensure border security while protecting the domestic labor force and permanent employment in all three countries.” Id. As result, a TN applicant cannot intend to establish permanent residence in the U.S. and must satisfy the inspecting officer that the proposed stay is temporary and has a finite end. 8 C.F.R. § 214.6 (b). Additionally, a TN application may be denied where the entry of that person may adversely affect the settlement of any labor dispute or would adversely affect the employment of any person involved in the dispute. 8 CFR § 214.6 (k).
Considering the current economic crisis, U.S. immigration inspectors may begin to more heavily scrutinize TN applications in order to protect the domestic labor force. However, U.S. immigration officials are limited to examining only whether the applicant meets the temporary entry and labor dispute provisions of sections 214.6 (b) and (k). Individuals with TN applications involving permanent employment or labor dispute issues should be prepared to document that they meet the requirements of these provisions.
Absent the grounds outlined in sections 214.6 (b) and (k), NAFTA favors facilitating the entry of business professionals among the U.S., Canada, and Mexico. U.S. immigration officials therefore cannot deny a TN application under any other labor force protectionist ground. For example, there is no requirement under NAFTA that an employer test the labor market to ensure there are no willing or able U.S. workers for a position before hiring an individual under TN status. Similarly, unlike the H-1B visa, the TN visa classification does not require that the employer pay the TN applicant a prevailing wage.