What is a TN Visa?
The TN non-immigrant visa was created by the North American Free Trade Agreement (NAFTA), signed between the United States, Canada, and Mexico. Both Canadian and Mexican citizens can be admitted to the United States in TN status in increments of up to three years. The visa is open to foreign nationals of Canada and Mexico working in professions listed in the Agreement, including certain IT professionals. You can find out more about the TN visa requirements by clicking here.
Sometimes, the literal language of the NAFTA agreement can be interpreted by U.S. border officers in a way that may potentially lead to a refusal of a TN visa based on strict reading of the job duties related to the occupation.
Information Technology (IT) Professionals
There are many different types IT professionals that exist within the IT industry. Each type focuses on more than one element of computer system analysis or maintenance. Within the industry, there are a wide variety of occupational titles that professionals hold, such as computer network specialists, data administrators, computer engineers, technology analysts, software engineers, computer programmers, and more.
Within the TN visa occupation list, there are some IT-related professional occupations that can qualify for the TN visa and some that cannot. The following discussion summarizes some of the considerations.
Software or Hardware Engineers
Applicants for this TN classification can meet the educational requirement by holding a bachelor’s degree in Engineering. Prior to a policy memo being issued by the Government, there was some doubt as to whether a Software Engineer should fall under the broader category of “Engineer.” However, the contention was laid to rest via the Cronin memo that was issued in 2000. The memo clarified that Software Engineers are indeed “Engineers” that qualify for TN visa classification.
Some officers may take issue to instances where the applicant’s degree is not an engineering degree (eg. a Computer science degree even though they may perform similar work to a software engineer). This is due in part to the fact that the Cronin memo goes on to state that it is reasonable for an officer to require that the applicant possess a degree which is in an Engineering field.
The Department of Labor’s Occupational Outlook Handbook states that Software Developers “usually have a bachelor’s degree in computer science and strong computer programming skills.” It should be noted that there is no entry in the OOH for “Software Engineer”, but rather, the Department of Labor’s O*NET manual lists “Software Engineer” as an alternate title for “Software Developer.”
To conclude, issues can potentially arise when an applicant has a Bachelor’s degree in Computer Science as opposed, say, a Bachelor of Science degree in Computer Engineering (which is an “engineering” degree). In such instances, it may be a good idea to furnish additional information in the application about any particular courses studied within the degree that specifically relate to software engineering in order to establish a sufficient nexus between the degree and the engineering occupation.
It is quite common for a person to be performing some degree of programming duties, which is something that all computer science and software engineers may do to some extent, even if their core duties revolve around designing software and hardware systems. However, mentioning that programming is part of the job duties may lead to the officer incorrectly classifying the position as a computer programmer job, which is not covered as a TN approved occupation.
Computer Systems Analysts
A systems analyst is an information specialist who analyzes how data processing can be applied to the specific needs of users and who designs and implements computer-based processing systems. The computer systems analyst category does not include programmers (see below). Applicants can meet the educational requirements by holding a four-year degree in Computer Science or a related field, or a two-year relevant degree and three years’ relevant experience. The job must also align with what a Computer Systems Analyst does.
Computer programmer is not a qualified TN occupation. The INS NAFTA Handbook explicitly states that the TN visa has “not been expanded to include programmers.” This is contradictory to other parts of the NAFTA Handbook, which also states that some computer systems analysts “will do some programming”, as well as the U.S. Department of Labor’s Occupational Outlook Handbook (OOH). This means that those performing purely programming duties would not qualify for the TN Visa, whereas those whose job duties include programming as only one tool being used may qualify.
There is one final area where an IT professional could get a TN visa. If an applicant is to be hired for duties such as analyzing and resolving strategic and operational problems relating to its Information Technology or providing other guidance/recommendations related to IT, the applicant can still qualify for the TN visa under the Management Consultant category.
The Management Consultant under NAFTA analyzes and resolves strategic problems relating to the overall operations of the company in any number of fields, to manage the company’s infrastructure, such as its efficiency, structure and profit margin rather than engaging in the day-to-day work. As such, an IT expert can qualify if the management consulting relates to providing management consulting in the IT field.
In order to avoid any type of confusion, it is important to ensure that the TN application is prepared carefully to reflect the occupation as a Software Engineer or Computer Systems Analyst. This can be done by ensuring that the degree matches or has some degree of arguable nexus to the occupation, and if necessary, supplying additional information about any specific courses within the degree attained that may be relevant to the occupation. However, adjudicating officers do retain a significant level of discretion, and as such, the outcome is never one that can be guaranteed.
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