In addition to the long lines, weather delays, expensive travel tickets, and the list of other travel headaches during the holiday season, certain foreign nationals holding Trade NAFTA (TN) status may also have to deal with increased scrutiny as to whether they remain eligible for the visa classification previously granted to them due to new TN policy guidance. Specifically, when returning to the United States after temporary foreign travel, Canadian and Mexican nationals who have previously been granted TN admission as economists may be required to demonstrate that their job duties in the United States (U.S.) continue to fall within the purview of what an economist would normally do.

Background

NAFTA permits qualified Canadian and Mexican citizens to come to the U.S. temporarily in order to work in certain professional occupations. These eligible occupations include, among others, engineers, nurses, lawyers, accountants, and economists. On November 20, 2017, U.S. Citizenship and Immigration Services (USCIS) issued a memorandum on the specific work activities officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist. On December 18, 2017 (conveniently before the rush of the Christmas holiday), USCIS announced the release of the “clarifying guidance” to the public.

The memo states that in order to qualify for TN status as an economist, professionals must engage in duties that are primarily associated with the occupation, as defined by the Department of Labor’s (DOL) Standard Occupational Classification System (SOC). It specifically highlights those working as financial analysts, marketing analysts, and market research analysts and states that these are separate occupations which would not be eligible for classification as a TN economist. An economist, according to the new policy announcement, “conduct[s] research, prepare[s] reports, or formulate[s] plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy.” They “may collect and process economic and statistical data using sampling techniques and econometric methods.”

Why It Matters

Occupations have obviously evolved since NAFTA was originally drafted in 1993. Because it is rare that a position will neatly fall within the confines of one occupational category, many companies and individuals have been able to secure TN classification for positions that have a broader economic angle. As a consequence, there are many individuals who hold TN status as “economists,” including those who have marketing and/or financial analysis duties, who might have difficulty extending their status, applying for new visas, or applying for readmission to the U.S. after temporary travel abroad based on this new interpretation. Notably, the enforcement of U.S. immigration law is a coordinated inter-agency effort which involves not only USCIS but also Customs and Border Protection (CBP) (which handles admissions at ports of entry) and the Department of State (DOS) (which processes visa applications). It is not clear at this point whether this USCIS memo has been adopted by CBP and DOS. However, CBP has the authority to refuse admission to anyone it seems inadmissible to the U.S., and it is entirely possible that this authority could be used to re-review eligibility under the economist occupational category.

What to Do

In light of this new development, we recommend the following:

  • For anyone traveling internationally who has been granted TN classification as an economist, exercise caution. Specifically, those who work as financial analysts, marketing analysts, and market research analysts should be particularly wary.
  • If travel is necessary, consult with an immigration lawyer. Employers who employ individuals in the economist category may want to send employees who must travel with updated letters of support outlining eligibility under the new guidance.