TN Visa Approved Following Denial Based on Staffing Company Sponsor
In this case, the Canadian citizen applicant applied for TN visa status at a pre-flight inspection office in order to obtain employment authorization with a professional staffing firm under the Occupational Therapist category. In this position, the applicant would provide Occupational Therapist services to the staffing company’s client, a physical therapy clinic. The inspecting officer refused to issue a TN to the applicant because she did not believe that staffing companies could sponsor an individual for TN visa status.
The applicant then contacted our firm to review his case. We informed the applicant that (contrary to the inspecting officer’s opinion) the TN visa regulations did not prohibit a staffing company from sponsoring an individual for TN visa status. Under the TN regulations, all a sponsor must establish is that the applicant will perform “pre-arranged business activities for a United States entity.” See 8 C.F.R. § 214.6 (b). In outlining the documentation necessary for a TN visa application, the regulations state that “[t]he applicant must present documentation” to establish that he/she “is seeking entry to the United States to engage in business activities for a United States employer(s) or entity(ies).” 8 C.F.R. § 214.6 (d) (3) (ii) (emphasis added).
The Inspector’s Field Manual also states that in order “to constitute pre-arranged professional services” for purposes of TN status “there must exist a formal arrangement to render professional service to an individual or enterprise in the United States.” IFM § 15.5. In addition to the typical employee-employer relationship, the Manual also states that the formal arrangement may be through a contract between “the business person’s employer and an individual or an enterprise in the United States.” This provision specifically supports TN visa status for a third-party placement.
The regulations and the Inspector’s Field Manual clearly permit a TN worker to provide services to a third-party entity. In this particular case, we procured additional documentation to confirm the applicant’s third-party placement. We also prepared a legal brief explaining how the TN visa regulations permitted staffing companies to sponsor individuals for TN visa status. We then accompanied the applicant to the port-of-entry where he was issued a TN for a three-year period.
U.S. immigration authorities have begun subjecting certain non-immigrant visa applications for staffing and consulting companies to heightened scrutiny. In a recent memorandum, the government restricted the types of entities that may sponsor an individual for an H-1B visa based on the H-1B regulation’s definition of an employer. See Neufeld Memo (Jan. 8, 2010). While the appropriateness of this scrutiny with respect to H-1B visas is questionable, USCIS/CBP should not apply this new H-1B guidance to TN visa applications.
The TN visa classification is not subject to the employer sponsor requirements applicable to the H-1B visa classification as defined in the H-1B regulations and as further outlined in Neufeld Memo. The H-1B regulations have specific requirements for the petitioner’s employment relationship with the H-1B beneficiary. These requirements are absent from the TN visa regulations. As such, USCIS/CBP’s scrutiny of a TN visa sponsor’s employment relationship under the Neufeld Memo guidelines would be inappropriate.