Embassy Says No TN Visa Category for Software Engineers!

Another report of a TN visa denial. This one is from the U.S. Embassy in Mexico City, which according to its website "is one of the largest visa processing units in the world." Given the extent of its operations, one would think that its officers would have a firm grasp of all areas of U.S. immigration law. However, there seems to be some confusion at the Embassy over the parameters of the TN visa category for Engineers.

A few weeks ago I spoke with an employer who sent a prospective employee to the U.S. Embassy in Mexico City to apply for a TN visa. The employer believed that its position offered fell under the TN category for Engineers, which it believed - correctly I might add - to include Software Engineering positions. However, the officer at the Embassy denied the application stating that the application should have been filed under the Computer Systems Analyst category because there was no TN category for Software Engineers!

I was shocked to hear the basis for this denial especially since this is one of the few instances where U.S. immigration has provided written guidance on the TN visa classification. The legacy INS has specifically stated that the TN category for Engineers includes Software Engineers. It has stated this not once, but on two other occasions. See Bednarz Letter (1995); and Cronin Memo (2000). USCIS has also made it clear that the TN Engineer category included Computer and Software Engineer positions. See Employment Bulletin 11 (2005).

Certainly, this application must have been denied by mistake. Yet, when this individual returned to the Embassy to explain that Software Engineers could qualify for TN status based on the government's own guidance, the Embassy denied the application again. Still the Embassy would not acknowledge that Software Engineer positions could qualify for a TN! This is not an entirely new development. There are periodic reports of denials of TNs for Software Engineers. For example, AILA complained about this same issue to the legacy INS in June 2000. See AILA/INS Liaison, AILA InfoNet Doc. No. 00062702 (Posted Jun. 27, 2000). What is noteworthy about this meeting is that INS had stated specifically that the U.S. Dept. of State, which governs the country's consulates and embassies, has "already agreed that Software Engineers fit under NAFTA." Id. 

The government has not issued any notice informing the public that it no longer would follow its earlier pronouncements on Software Engineer positions provided in the documents above. My initial suspicion is that this is a training issue. Alternatively, these decisions could also be attributable to the U.S. Department of Labor's revision of its Occupational Outlook Handbook (OOH). The OOH no longer provides a specific listing for Software Engineers, which may explain the Embassy's decision-making here. If so, it's the wrong decision.

First, the OOH should only serve as a source of supplemental information on the TN categories enumerated in the NAFTA Appendix. The Department of Labor does not have the authority to unilaterally make any changes to the NAFTA Appendix' occupational categories. Second, the Department of Labor has simply re-characterized the Software Engineering job title to that of Software Developer. See, e.g. the OOH Index. The occupation still exists. The DOL just uses a different title. Despite the DOL's decision to characterize this occupation as Software Developer, these types of positions should still be eligible for TN status under the Engineer category.

I will continue to monitor the Embassy's position on this issue, and will provide an update when available. (Our office was not involved in the preparation of this TN visa application).