[co-author: Cyrielle Bonny - Law Clerk]
United States Citizenship and Immigration Services (USCIS) has issued a policy memorandum restricting Trade NAFTA (TN) nonimmigrant classification under the profession of Economist. USCIS advises that the TN Economist category will no longer be available to foreign nationals working in financial analyst, market research analyst or marketing specialist positions. It will also not be permitted for other positions that are related to economics but “primarily include the activity of other occupations.”
Although the TN Economist category is not defined in U.S. immigration regulations, it historically had been interpreted to include all occupations involving economic analysis (including the now-excluded positions). Moving forward, only positions whose job duties primarily involve “traditional” economist duties — such as processing and collecting economic and statistical data or analyzing the behavior of individuals and firms to understand the relationships between supply and demand — will be eligible for TN Economist designation. Although this policy position is technically binding solely on USCIS through the adjudication of new TN petitions or TN extensions filed at USCIS Service Centers, we believe it will also affect TN applications filed by Canadian citizens at the border and TN visa applications filed by Mexican citizens at U.S. consulates.
The new policy restrictions could also affect the ability of previously approved TN Economists to re-enter the U.S. after international travel. All TNs previously approved under the TN Economist category could receive increased scrutiny by Customs and Border Patrol (CBP) when returning to the United States. CBP officials could use the new guidelines to refuse TN Economists re-entry to the U.S., even to those with a valid USCIS petition approval notice. Employees returning to work in the U.S. in the TN Economist category should therefore be prepared to answer detailed questions about their job duties and qualifications upon re-entry to the U.S and be able to argue that their position primarily involves duties of an economist. Your TN Economist employees who may not meet the new guidelines may wish to avoid international travel until discussing their case with us first. Alternative nonimmigrant options — including H-1B, L-1 manager or specialized knowledge, or O-1 extraordinary ability — may be available to these employees, or you could amend the position description to more clearly reflect the duties of an economist rather than of a financial analyst.
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