Mark A Ivener, A Law Corporation

USCIS Announces Proposed Rule To Increase Periods of Stay for TN Professionals From Canada, Mexico

U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) on May 9, 2008, to increase the maximum amount of time a Trade NAFTA (TN) professional worker from Canada or Mexico can remain in the U.S. before seeking readmission or obtaining an extension of stay. The proposal would extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers.

The proposed rule would further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

Canadian and Mexican citizens seeking temporary entry to the U.S. as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

USCIS said the rule is intended to ease administrative burdens and costs on TN nonimmigrants and will benefit U.S. employers. The proposed changes also would apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents.

Alliance of Business Immigration Lawyers members have observed that the rule would lessen the burden on TNs who are in the permanent residence process who may fear difficulties in extending their TN status, which must be temporary, ending “at a predictable time.” This was not a problem when TN employers could time the filing of the immigrant petition to coincide with the foreign worker’s permanent residence application. This is no longer possible: immigrant petitions must now be filed within 180 days of approval of the labor certification under the Department of Labor’s “Anti-Fraud” rule. The additional two years allowable as a TN under this proposed rule will allow more “elbow room” to file all critical phases of the process without the needing to extend the TN stay, ABIL notes. However, the benefits could be undermined by the halt of concurrent I-140 and I-485 filing because this will add to the time required for permanent residence processing.

The NPRM is available at Persons wishing to comment may access the Federal e-Rulemaking Portal and follow the instructions for submitting comments. USCIS will accept public comments until June 9, 2008.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.