Background

Applicant, a citizen of Canada, had a job opportunity with a company that produces flat-rolled carbon steel products. The applicant would be responsible for operational and commissioning issues for the company’s coupled steel pickling line and tandem cold reducing mill facility. The applicant did not possess a bachelor’s degree, professional license, or a diploma, but did have over thirty years experience and had completed substantial training in the field.

Immigration Analysis

As the applicant was a Canadian citizen, we evaluated whether he could take advantage of one of the NAFTA temporary worker visa categories. The L-1 visa, B-1, and E visas were not appropriate. NAFTA has only two TN visa categories that do not require a bachelor’s degree, professional license, or diploma: the Management Consultant and Scientific Technician. The applicant’s position did not involve solely advisory duties, and so the Management Consultant TN category would not fit.

As outlined in the Inspector’s Field Manual, the Scientific Technician (SciTech) TN visa category requires five elements: (1) the applicant must work in direct support of a professional in a specific field such as engineering; (2) the applicant’s work must be interrelated with the supervising professional; (3) the applicant must possess theoretical knowledge in a specific field such as engineering, which should have been obtained through at least two years of training; (4) the applicant’s job must be consistent with a scientific or engineering technician as described in the Occupational Outlook Handbook; and (5) the applicant’s job must not be in the construction trades.

The applicant clearly met the second, fourth, and fifth requirements. We also felt that he met the first and third requirements, but that CBP may question his eligibility under these two points. The applicant would be working in support of a professional – a degreed Engineer – but this individual was already working for the company under TN visa status himself. This scenario would be somewhat atypical. Also, CBP frequently believes that a SciTech must possess two years of education – often in the form of a post-secondary diploma – to meet the third requirement. The applicant did not possess any formal post-secondary education.

Immigration Solution

We assisted the company in preparing a TN visa support letter fully explaining the company, job offer, and the applicant’s credentials. We then prepared a legal brief showing how the applicant met all five points for the SciTech TN visa as outlined in the Inspector’s Field Manual.

The brief specifically pointed to the absence of any language in the NAFTA TN regulations or the Manual prohibiting the supervising professional from working under the TN visa classification himself. All the law requires is that the supervisor qualifies as a professional in his/her own right and that he/she manage the SciTech worker. We also submitted a letter from the supervisor explaining how he managed the applicant and also included copies of the supervisor’s engineering degree and license.

The brief also pointed to the absence of any language in the NAFTA TN regulations or the Manual requiring a SciTech applicant to possess any formal educational. In fact, the Inspector’s Field Manual only states that the applicant’s “theoretical knowledge should generally have been acquired through the successful completion of at least two years of training in a relevant educational program.” Furthermore, the Manual states that this training may be documented by “presentation of a diploma, a certificate, or a transcript accompanied by evidence of relevant work experience.” To meet this requirement, we included the applicant’s printout of the substantial training courses he completed with his prior employer, along with letters evidencing his over thirty years experience.

Resolution

We accompanied the applicant to the port-of-entry to present the application. CBP reviewed the application, interviewed the applicant, and issued the TN for a three year period.