TN Visa Approval - 3 Prior Denials; CBP Issue w/Comp Sci Degree for SW Engineer

TN VisaCase Info.
Background:The applicant was a citizen of Canada, and possessed a bachelor’s degree in Computer Science.

Prior to our office’s representation, the applicant applied at the Toronto PFI for a Computer Systems Analyst TN in order to accept employment in a position titled “Software Engineer.” The officer at the Toronto PFI denied the application because she believed that the position should have been filed under the TN category for Software Engineers. The officer also stated that the applicant could not qualify for a TN as a Software Engineer unless he possessed a degree in Engineering.

Later that day, the applicant returned to the Toronto PFI to apply for a TN for this position presenting the same application materials he provided earlier in the day. The applicant tried to provide a more detailed explanation of his job duties, but the inspecting officer again refused to issue a TN.

The employer then determined that the position offered was more properly classified under the Software Engineer TN category. The applicant later then presented an application at the Niagara Falls POE in order to obtain TN status for this position under the Software Engineer category. The officer at the Niagara Falls POE denied the applicant’s application because he believed that the applicant could not qualify for a TN under the Software Engineers category unless he possessed a degree in Engineering.

Our Solution:Our office was then retained to assist in the matter. We agreed with CBP’s prior determinations that this position was more properly classified under the Software Engineer TN category. However, we disagreed with CBP’s opinion that a degree in Engineering is specifically required for this TN category. We prepared a new application with a detailed cover letter and the following research supporting this argument:

1. The TN regulations do not require a specific degree in the field for the Engineer TN category.
2. Legacy INS memorandum and Operation Instructions state that a degree in the particular field is not required for eligibility under the TN visa classification and that “a degree in an allied field may be appropriate.”
3. The U.S. Department of Labor’s Occupational Outlook Handbook, and other U.S. Department of Labor publications stating that a degree in Computer Science is appropriate for a Software Engineer position.
4. Department of Homeland Security’s Administrative Appeals Office (AAO) decisions approving visa applications for Software Engineering positions for individuals who possess a degree in Computer Science.
5. Career publications showing that the typical degree concentration for a Software Engineer is in “software engineering or computer science.”
TN Category:Engineer (Software)
Job title:Senior Software Engineer
Education:Bachelor's Degree in Computer Science
Filing Process:TN visa status application @ USCBP - Peace Bridge, POE
Processing time:Approved same day filed
Approval period:3-years