On December 18, 2017, U.S. Citizenship & Immigration Services (USCIS) announced a policy change affecting the adjudication of applications for TN visa status under NAFTA.
Background on TN visa status
TN visa status allows citizens of Canada or Mexico to work legally in the U.S. if their employment fits within any of 62 occupational classifications and they have the corresponding educational and/or professional qualifications. One such occupational classification is “Economist.” The full list of eligible occupational classifications is found in Appendix 1603.D.1 of the NAFTA treaty, as well as in the federal regulations at 8 C.F.R. Section 214.6.
USCIS policy change on “Economist” TNs
In prior years, U.S. visa authorities appeared to accept an expansive view of the definition of “Economist” for TN visa purposes, approving TNs in the Economist occupational category for a wide range of jobs involving economic and financial analyses. USCIS’s policy announcement on December 18, 2017 indicates that USCIS no longer finds many such jobs eligible for TN classification.
Immediate effect of policy change
- TN extensions: USCIS has not stated specifically what this policy change means for individuals already granted TN status in the “Economist” category. It is reasonable to expect that mail-in applications to USCIS for TN extensions-of-stay will be denied if they are for jobs that no longer fit the narrowed conception of “Economist.”
- TN readmissions following travel outside the U.S.: The policy change was announced by USCIS rather than DHS as a whole (which encompasses U.S. Customs & Border Protection, who make the TN admissions decisions at U.S. ports of entry), so it is not clear whether or how the policy change will affect readmissions following travel abroad. Nor is it known yet whether the U.S. Department of State, through its U.S. Consulates abroad, will conform to the new USCIS policy when deciding consular TN visa applications. It is reasonable to expect that individuals already granted TN status in the “Economist” category, if they travel outside the U.S., might be refused a consular TN visa and/or readmission to the U.S. upon their return. Before an individual with a TN approval in the Economist category undertakes travel outside the U.S., these uncertainties should be taken into consideration.
Details of the new policy
The USCIS policy announcement of December 18, 2017 states:
This policy update clarifies that professional economists requesting TN status must engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.
This policy update is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations.
The policy memo itself (dated November 20, 2017, but not announced publicly until December 18, 2017) elaborates:
Whether a particular job is that of an economist is determined by the primary activity, not by the title. For purposes of the TN classification, the profession of economist must not primarily include the activity of other occupations, such as, but not limited to, those performed by financial analysts, market research analysts, and marketing specialists.
Economists generally specialize in either microeconomics (analyzing the behavior of individuals and firms with the aim of understanding the relationships between supply and demand) or macroeconomics (analyzing aggregated indicators to determine how different sectors of the economy relate to each other). In addition to these two broad focus areas, economists may apply economic analysis to issues in a variety of fields, such as labor, international trade, development, econometrics, education, health, and industrial organization, among other fields. Further, the Department of Labor’s Standard Occupational Classification (SOC) system defines economists as conducting research, preparing reports, or formulating plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy.3 Economists may collect and process economic and statistical data using sampling techniques and econometric methods. Notably, the SOC’s definition of the economist occupation specifically excludes the occupations market research analyst and marketing specialist (SOC #13-1161). Therefore, to be consistent with the SOC, USCIS is clarifying that persons who are engaged primarily in activities associated with market research analysts and marketing specialists, as described in the SOC and the Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH), do not qualify for the TN nonimmigrant classification as an economist.
With respect to the occupation of financial analyst, USCIS recognizes that economists and financial analysts are related occupations and that there may occasionally be some similarity in the activities of these two occupational categories. As differentiated from economists, however, financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions. Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories. Therefore, to be consistent with the SOC, USCIS is clarifying that economists and financial analysts are two separate occupations for the purposes of qualifying for TN nonimmigrant status pursuant to NAFTA.
We will be monitoring developments and reporting on any forthcoming official updates on the new policy relating to TN Economists, and on any similar narrowing of other TN occupations.
© Jewell Stewart & Pratt PC 2018