“Activities at a Professional Level” under NAFTA are defined as having to fall into a profession on the NAFTA List and requiring at least a baccalaureate degree or appropriate credentials demonstrating status as a professional. TNs, unlike H-1Bs, enjoy no statutory limitation on stay, but must prove their intent not to immigrate.
The List of Professions designated by NAFTA is provided below for your reference:
NAFTA Professionals List
Further, a special note for Management Consultants:
Every designated profession included in above list require possession of some post secondary education (usually a Bachelor's degree) and a license (if applicable) with the exception of two - the Management Consultant & Scientific Technician Technologist.
While some straight-forward Canadian TN applications might be approved by US CBP with nothing more than a passport, job offer letter, and copy of the applicant’s degree - the Management Consultant application, in particular, requires substantially more information and preparation.
The extra attention from immigration officials stems from a widely held belief that the Management Consultant category is one of the most widely abused US visa categories. Remember, it is one of only two categories which do not require post secondary qualifications, so you can imagine that many non-degreed professionals have tried their luck with this category, after realizing they cannot qualify for any of the other listed professions.
The IFM (Inspectors Field Manual) defines a Management Consultant as someone who:
provides services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity's goals, objectives, policies, strategies, administration, organization and operation. Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities.
Although the applicant does not need any post-secondary education, he or she must establish five years of professional level experience, either as a Management Consultant or in a field or specialty related to the consulting agreement. This experience is generally established through reference letters from prior employers.
Practice Tip: After reading these letters, an immigration official should come away with an understanding of why the applicant is qualified to provide the proposed consulting services.
Further, Management Consultants should not be involved in the day-to-day operations of a company. Rather, they should be separate from its operations and looking objectively at its activities to identify areas for improvement and make suggestions to company management.
Practice Tip: In the US company support letter, which confirms the applicant is coming to the US to provide "pre-arranged professional services", there should be a sufficient explanation of company operations, beyond the usual stats, ie, company description, number of employees, revenues, etc. The additional explanation should serve to justify the need to bring the Management Consultant on-board, with documentation to support it, where applicable.
Further, applicants should also be prepared for extensive questioning at the Port of Entry/Pre-Flight Inspection where the application is being submitted; AND the employer should be ready to field questions as well. Yes, US CBP has been known to call the employer in the US, from the Port of Entry to ask questions about the application.
Procedure: Note the TN application may be made in person by submitting paperwork to US Customs & Border Protection (CBP) at a US/Canadian Port of Entry or Pre-Flight Inspection. Also note that Mexican applicant's must first apply for a TN visa stamp at a US Embassy or Consulate, before presenting themselves to CBP.
Finally, recent changes in the law now allow applicants to seek three years of TN status, instead of only one.
Practice Tip: As a practical matter, it might not be advisable to seek three years for a Management Consultant, unless you can justify the need for this length of time. We often ask for a term which matches the duration of the consulting agreement. If contract lasts longer than one year, we see if it makes sense to break down the consulting services into separate, successive phases.
Our attorneys have extensive experience working with this visa category, in particular with Canadians making cross border applications, and are ready to answer your questions.
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