I-129 TN PETITION APPROVAL – STAFFING COMPANY / IBM CONTENT MANAGER ON DEMAND POSITION

In this case, the applicant had an opportunity with an IT staffing company where he would work in an IBM Content Manager OnDemand position at one of the company’s client sites. Based on our review of the position, we believed the position fell under the TN category for Engineers (Computer).

As USCIS has been scrutinizing petitions for staffing companies (particularly with H-1B and L-1 visa petitions), we wanted to make sure that USCIS would not have any issue with this petition. Although the issues surrounding staffing companies and H-1B and L-1 visas should not apply to TN visas, we were concerned that USCIS’ scrutiny may carry-over to TN visa petitions. To avoid any potential problems, and in order to meet the “pre-arranged business activities” requirement for the TN visa classification, we fully described and documented the project that the applicant would work on under the proposed TN status.

The second potential issue we foresaw with this case was the applicant’s proposed job title, which was not specifically referred to as an Engineer position, but as an IBM Content Manager OnDemand position. Job titles are one of the most problematic areas for the TN visa classification given that NAFTA allows eligibility only for 63 occupations. Many applicants are hesitant to list a position’s actual job title for fear that the U.S. immigration officer will deny the application because the job title is not listed on the NAFTA Appendix (which does happen). Instead, individuals often prepare their application listing the position’s title as one specifically provided in the NAFTA Appendix as opposed to the actual job title (e.g. with a Computer Systems Analyst title where the actual job title is Programmer Analyst).  

This practice is misguided for several reasons. First, a position’s job duties, and not the title of a position, govern whether a position falls under one of the TN visa occupational categories listed in the NAFTA Appendix. Second, not listing the actual job title in a TN application can create unnecessary risk of denial or immigration penalties. If during the adjudication process, the U.S. immigration officer finds out what the actual job title is (e.g. by calling the company or through an internet search), he/she may deny the application or worse (charge the applicant with fraud or expedite remove the applicant). Even if the application is approved, the TN visa worker can still be subject to questioning whenever he/she seeks re-entry to the U.S. If the immigration officer discovers his/her actual job title (e.g. on a business card, or in paperwork the TN visa worker has in his/her possession), then the officer may deny entry, revoke the TN visa, and/or worst case scenario – charge the applicant with fraud or expedite remove.

To avoid these potential problems, we generally recommend listing both the TN occupational category, and the actual job title, and then explaining how the position offered falls under the TN occupational category. In this case, we provided an explanation on how the IBM Content Manager OnDemand position fell under the TN category for Engineers, which includes Computer Engineers.

This petition was filed in August 2011 with the Vermont Service Center and approved this week.