USCIS Issues Policy Memo Limiting Use of TN Economist Classification

This week the United States Citizenship and Immigration Service (USCIS) announced the issuance of a new Policy Memorandum titled “TN Nonimmigrant Economists Are Defined by Qualifying Business Activity.” The memorandum is part of USCIS’s effort to align its adjudication practices with the directives of the President's "Buy American, Hire American" Executive Order and seeks to clarify, and limit, eligibility for TN nonimmigrant status under the occupational category for Economists. In particular, the memo states that, for purposes of TN classification, the profession of Economist must not primarily include the activity of other occupations, including, but not limited to, those performed by Financial Analysts, Market Research Analysts, or Marketing Specialists, and notes explicitly that those three specialties do not qualify for TN visa issuance.

By way of background, the TN visa is a product of the North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico. The visa permits nationals of Canada and Mexico who work in certain, specifically enumerated professions to temporarily enter the U.S. to engage in business activities related to their profession. While there are over 60 professions eligible for TN visa classification, the memo focuses exclusively on the TN Economist profession, specifically limiting the availability of this visa to individuals working in the profession of Economist, primarily performing job duties associated with Economist positions and not other related occupations such as Financial Analysts. Because NAFTA does not include an in-depth description or definition of an Economist, in the past positions that had significant overlap with Economist job duties, such as those that included, as an integral component, economic analysis and research and required that the individual filling the position had an economics degree or substantial economics coursework, could qualify for TN nonimmigrant status under the occupational category for Economists. The memo points to inconsistent adjudication trends as the impetus for the policy guidance.

Although USCIS acknowledges that Economists and Financial Analysts are related occupations and that there may be some similarity in the activities of these two occupational categories, the memo takes the position that these positions are not the same and that an individual primarily performing job duties of a Financial Analyst cannot qualify for TN nonimmigrant status as an Economist. The memo further points out that in the U.S. Department of Labor (DOL) differentiates between Economists and Financial Analysts in its Occupational Outlook Handbook, assigning them different occupational classifications. Thus, USCIS concludes that Economists and Financial Analysts are two separate and distinct occupations for the purposes of assessing TN nonimmigrant visa eligibility, with only the former being eligible for the TN visa. The memo also points out that the DOL definition of Economist specifically excludes the occupations Market Research Analysts and Marketing Specialists.

Note that this policy memo is binding guidance only on USCIS adjudicators whereas many first-time TN applications are made directly at the U.S. Port of Entry (for Canadians) or the U.S. Consulate (for Mexicans), which are adjudicated by Customs and Border Protection (CBP) and the Department of State, respectively.  Furthermore, it is still unclear whether or how soon CBP will adopt this interpretation and whether this new rule will apply to individuals reentering the U.S. on currently valid TN visas who may have received the Economist classification but are filling roles that could also be viewed as other positions based on the nature of the position and the employer’s business activities.  Therefore, TN visa holders currently classified as Economists should be prepared for additional questioning at the port of entry and should review the Department of Labor’s definition of Economist in order to ensure strict compliance with this definition and be better equipped to demonstrate how their position fits within the scope of the Economist job duties.

D&S is continuing to monitor this developing situation and will provide updates as they become available.