Pork Industry Continues To Face TN Visa Denials

As discussed here back in Feb. 2024, pork producers are seeing an increased number of TN visa denials for their prospective workers. In a recent article published by Farm Journal, Inc., they claim the problem has only gotten worse.

The CEO of the National Pork Producers Council (NPPC), Bryan Humphreys, says “he honestly doesn’t know why TN visa applications are being denied.” He adds that it “is a complete frustration for our industry…We just want to know what the rules are and how we can work through those rules while being good stewards of the folks on our team. We have asked repeatedly for the State Department to share that information, but they refuse.”

Anyone who has practiced immigration law knows that getting useful information from the government can be very difficult. Even when you are successful, it often requires a PhD in Hieroglyphs to discern what may be going on in a particular visa issue. What is going on here is likely the government’s push back at the alleged abuse of the TN visa program by some employers.

As mentioned here earlier, the increased scrutiny by the U.S. Embassy/Consulates in Mexico over whether a job offer is truly a professional-level occupation that qualifies for TN visa status may be a result of recent lawsuits TN visa workers filed against companies who promised engineer jobs but placed applicants in manual labor roles. As result, consular officers have become stricter in their evaluations over whether a job offer falls under the applicable TN professional occupation. The scrutiny the pork industry is facing now is that consular officers may be concerned whether applicants are truly working in professional-level TN occupations as opposed to filling manual labor roles that do not qualify for TN visa status.

Now there are rules that govern the TN visa process, which both the government and employers are bound by. What are the rules that govern whether a job qualifies for a TN visa? Let’s look at the TN regulations. For a job to qualify for TN visa status, the job must require a bachelor’s degree or other appropriate credential in the TN occupational field. 8 CFR 214.6 (b).

For example, if an employer wants to obtain a TN under the Animal Breeder TN category, the employer’s normal requirements for the position offered should be a bachelor’s degree in Animal Breeding or a related field. If the employer does not normally require a bachelor’s degree for the job, or they do, but the degree requirement is in an unrelated field, then technically the job would not qualify for TN status.

The only other main source for determining whether a job falls within a particular TN occupation is the Occupational Outlook Handbook (OOH). Officers should refer to the OOH entry for a profession to determine whether a position offered is consistent with that TN occupation.

Other factors officers look at in this evaluation include:

• Is there a need for the employer to hire this type of professional.

• Whether the employer is in an industry that would normally hire an individual in the applicable TN occupation.

• Whether the employer is already employing one or more professional workers in the applicable TN occupation.

• Whether the applicant’s salary is too low, which may suggest a non-professional role, or whether it is too high, which may suggest a more executive or administrative role.

• The number of employees at the company: companies with few employees may lead an officer to allege that the applicant will engage in non-TN occupational duties.

Employers also need to keep in mind that under U.S. immigration law, the burden is on the applicant to prove that they qualify for that particular immigration benefit. In the TN visa application context, that is normally achieved by presenting a detailed employer support letter showing how the applicant and their job offer qualifies, and by having an applicant able to articulate the same to the officer during their interview.