CBP Denies TN Visa for Staffing Work & Job Duties
Another report of a TN visa denial. This one is from the CBP office in Sweetgrass, Montana, which recently denied a Canadian citizen entry to the U.S. under TN visa status in the category for Computer Systems Analyst. (Our office was not involved in the preparation of this TN visa application).
Despite the individual's receipt of several prior approvals under this arrangement, the CBP officer believed that an individual could not obtain a TN for a staffing or consulting company and perform work for a third-party. This is a common basis for TN visa denials, but as I have written elsewhere, I do not believe it is a correct basis. If that were the case, then how can an individual obtain a TN visa for a Management Consultant? U.S. immigration itself has stated that Management Consultants are "independent contractors or employees of consulting firms under contracts to U.S. entities." See NAFTA Handbook, pg. 136. Surely this would involve a TN visa worker providing services to third-parties.
The second reason for the denial was that the CBP officer did not think the individual's job duties qualified under the TN category for Computer Systems Analyst. The officer thought his role was more aligned with a systems designer or programmer. While I will not go into details here, this basis may also be problematic. For example, the Occupational Outlook Handbook (OOH), which should serve as a guide on these issues, specifically states that the types of Computer Systems Analysts include "systems designers" and "programmer analysts." Based on the OOH, the officer's remarks here may also be off the mark.
UPDATE 7/17/2012 Another TN Denial from CBP Due to Third-Party Work:
I am still seeing reports that other USCBP offices are refusing to issue TN visa status to applicants who intend to work for IT consulting or staffing firms. This case, which our office to did not handle, comes out of the Toronto Pre-Clearance Office.
Here the CBP inspecting officer refused to issue a TN under the Computer Systems Analyst category to an individual who intended to work for an IT consulting company that provided services to other companies. According to this report, the CBP officer denied the application using the following example:
"If you work for Target, you can only provide analysis and consultation on Target information. You cannot consult with other companies under the TN visa. Only management consultants can offer services to different outside companies under the TN."
I disagree with the officer's opinion that third-party work is restricted to the Management Consultant TN category. The TN regulations governing the types of business activities permitted under the TN visa classification, which I believe support this type of work, are not limited to the Management Consultant TN category.
UPDATE 5/3/2013 - No Third-Party Work for Management Consultants?
I have now received reports that officers from the Montreal Pre-Clearance Office are claiming that an individual cannot obtain TN visa status as a Management Consultant if the individual will be providing services to the petitioner's clients.
Contrary to the Montreal CBP office’s opinion, I believe that a TN is tenable where the applicant will provide consultation services to the petitioner’s clients. As shown above, even the Toronto CBP office was willing to accept this arrangement for Management Consultant applications. This is supported by the NAFTA Handbook.
The NAFTA Handbook states that an applicant for a Management Consultant TN can be employed by a “U.S. management-consulting firm” and that such applicants “are usually independent contractors or employees of consulting firms under contracts to U.S. entities.” See pg. 136. This language certainly must mean that an individual employed by a management consulting firm may obtain a TN to provide services to the firm's clients!