NEXUS: A Great Option For TN Visa Workers, But Easily Lost

NEXUS is a Trusted Traveler program run jointly between the Canada Border Services Agency and U.S. Customs and Border Protection (CBP). It provides an expedited border crossing process “for low-risk, pre-approved travelers into Canada and the U.S.”

Under the traditional CBP inspection process, individuals seeking entry to the U.S. must demonstrate their eligibility for entry to the U.S. Even following the approval of TN visa status, CBP officers will frequently review an individual's eligibility for TN status during subsequent travel. It is not uncommon for CBP officers to revoke an individual's previously issued TN visa status because he/she believes the TN was issued in error. "Trusted traveler" programs like NEXUS can be very beneficial to TN visa workers because they may then avoid the more thorough review that takes place under the traditional CBP inspection process. As a result, there is less of a risk of having their TN visa status questioned or revoked.

However, individuals who currently possess membership in the NEXUS program must be careful to avoid forfeiting that membership. To my knowledge, CBP has not formally published its policy describing the grounds that may lead to revocation of one’s NEXUS membership. During liaison meetings with AILA, CBP has stated that

“A number of factors can be at play in revocation of someone’s inclusion in a Trusted Traveler program (TTP). These are not limited to criminal records, and can extend to customs/merchandise disclosures, and even investigations (i.e. an I-9 audit).” AILA/CBP Liaison, AILA Doc. No. 20061135 (posted 6/15/20).

In some instances, when an individual’s TN visa application is denied, the individual will subsequently receive a notice from CBP stating that it has revoked the applicant’s NEXUS membership. These revocation notices do not generally provide the specific basis for the revocation, and merely state that the individual no longer meets the program eligibility requirements. In its revocation notices, CBP lists the following circumstances that may render an individual ineligible for participation:

• Providing false or incomplete information on the application;

• Convictions for any criminal offense or pending criminal charges to include outstanding warrants;

• Violations of any customs, immigration, or agriculture regulations or laws in any country;

• Inadmissibility to the United States under immigration laws;

• Receipt of a criminal pardon from any country; or

• Other circumstances that indicate to CBP that you have not qualified as "low risk."

However, CBP does not state the specific circumstance that led to an individual’s NEXUS revocation. CBP has stated in the past that individuals “can submit FOIA requests and these may result in obtaining additional background information as to why an adverse action was taken.” AILA/CBP Liaison, AILA Doc. No. 20061135 (posted 6/15/20) (emphasis added).

CBP does offer a mechanism to request reconsideration of a NEXUS revocation through the Trusted Traveler Program application website. But the process is lengthy and may be difficult especially if an individual was never given the specific basis for the revocation in the first place. Often, people are led to guess what exactly formed the basis for the revocation. Even when individuals later address the presumed basis for the NEXUS revocation, e.g. by convincing CBP that a prior TN visa refusal was erroneous, they may be unsuccessful in securing re-issuance of their NEXUS membership through CBP’s reconsideration process. Apparently, some TN refusals render an individual too great a risk for participation in the agency’s Trusted Traveler Programs.

The TN visa process, while designed to facilitate entry to the U.S., can still be a challenging endeavor particularly when one’s job title or education does not directly align with a TN occupational category. Such cases may still be approvable if an applicant can establish how the position fits or the education relates to the TN occupation. Some applicants may consider filing a case where there are extensive incongruences between the job title or their education and the TN occupation in hopes that an officer may overlook these shortcomings. Because the denial of a TN visa application by CBP may lead to the revocation of one’s NEXUS privileges, individuals may want to think twice about rolling the dice on such a challenging TN visa application. In addition to losing the employment opportunity, they may also lose their Trusted Traveler privileges.