New TN vs. H-1B Visa Chart for Canadian professionals seeking work authorization in the U.S. Provides a comparison of TN status under NAFTA to H-1B visa status: http://www.naftatnlawyer.com/tn-vs-h-1b-visa-chart/

Hi Brian,

Can you please start compiling your news flashes/links into one post? (i.e. post the next one as a reply to this)

There's quite a bit of info you can post on these topics, I want to make sure it does not take up all the space in the "recent post" view.

Thanks

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Changing H-1B Visa Employers Utilizing AC21 Portability Provisions.

Section 105 of American Competitiveness in the Twenty-First Century Act of 2000 ("AC21" added a new transfer (portability) provision for H-1B visa temporary workers.

Under the H-1B portability rules, an H-1B worker may start working with a new H-1B employer as soon as the new employer files the petition. To qualify under this rule, the H-1B worker must have been lawfully admitted to the United States and must have not engaged in unauthorized employment. The new employer also must file the petition before the date the H-1B worker’s current H-1B period of stay expires.

An H-1B worker who “ports” or transfers from one H-1B employer to another, must demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition. This evidence usually consists of two or three recent paycheck stubs and possibly a letter from the original employer.

To employ H-1B visa nonimmigrants, an employer must fill out a Labor Condition Application (LCA). The LCA stipulates the wage levels that an employer guarantees for the H-1B visa worker’s pay. In signing and filing an LCA, an employer attests that for the entire “period of authorized employment,” the required wage rate will be paid to the H-1B nonimmigrant.

An employer need not compensate a nonimmigrant, however, if it has effected a “bona fide termination” of the employment relationship. To ultimately effectuate a “bona fide termination” under the INA, an employer must notify USCIS that it has terminated the employment relationship with the H-1B nonimmigrant employee so that USCIS may revoke approval of the H-1B petition. The employer must also provide the employee with payment for transportation home. Failure to do so may subject the employer to liability for back wages to the H-1B employee.

In Amtel Group of Florida v. Yongmahapakorn, Amtel provided notice to the H-1B visa employee that it had terminated the employment relationship. Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB 9/29/06). However, the court held that notice alone was not sufficient to end the employer’s obligation to pay the required wages to an H-1B employee. The employer does not effect a “bona fide termination” and, therefore, end its obligation to pay the required wages to the H-1B employee unless the employer has also notified USCIS. The court therefore ordered Amtel to pay the employee the prevailing wage for an internal auditor until the expiration of her authorized period of stay for H-1B employment, plus prejudgment compound interest on the back pay owed and post judgment interest until the employer made full payment.

Detailed information on qualifying under NAFTA for a TN as an Accountant now available. http://www.naftatnlawyer.com/nafta-tn-accountant/

NAFTA Requirements for TN as a Computer Systems Analyst.

NAFTA TN Regulations

To qualify for TN status under NAFTA as a Computer Systems Analyst, an applicant must possess one of the following:

1. Bachelor’s (Baccalaureate) degree;

2. Licenciatura Degree;

3. Post-Secondary Diploma and three years of experience; or

4. Post Secondary Certificate and three years’ experience.

See 8 C.F.R. § 214.6 (c).


NAFTA Handbook

The legacy INS Manual for NAFTA applications defines a systems analyst as 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. NAFTA Handbook (November 1999). A computer systems analyst studies an organization or business to identify its information needs and designs computer systems to meet those needs.

The NAFTA Handbook specifically excludes computer programmers from the computer systems analyst TN category. NAFTA Handbook (November 1999). However, U.S. immigration officials have retreated some what from this outright exclusion and now realize that a Computer Systems Analyst may undertake a limited amount of computer programming.

Occupational Outlook Handbook Guidance.

A TN applicant’s prospective job duties for this category must be consistent with the job duties generally performed by Computer Systems Analysts in the field. Inspecting officers will look to the Occupational Outlook Handbook (“OOH”), a manual published by the Department of Labor, for insight on the duties normally required of professionals in a particular profession.

Read more here: http://www.naftatnlawyer.com/nafta-tn-requirements-comput/

Baccalaureate or Licenciatura Degree Requirements

TN status under NAFTA is available for only the 63 occupational categories outlined in the NAFTA regulations. Each occupational category has specific requirements for admission and generally requires the possession of a Baccalaureate or Licenciatura Degree.

To qualify under NAFTA, the degree possessed by the TN applicant “should be in the field or in a closely related field.” Michael D. Cronin, Memo to Regional Directors, Guidance for Processing Applicants under NAFTA, in 77 Interpreter Releases 1556-57 (Oct. 30, 2000). Inspecting officers may consider whether a degree in an “allied field” may be acceptable for the particular TN category and are instructed to use “good judgment” in this determination. Id.

Where a TN occupational category requires a Bachelor’s or Licenciatura Degree, an individual may satisfy this requirement by possessing a degree from an educational institution outside of the NAFTA countries (i.e., from a college or university outside the U.S., Canada, or Mexico). Cronin, Memo to Regional Directors, Guidance for Processing Applicants under NAFTA (Oct. 30, 2000).

However, degrees received by a TN applicant from an educational institution outside of the United States, Canada, or Mexico must be accompanied by an evaluation by a reliable credentials evaluation service that specializes in such evaluations. 8 C.F.R. § 214.6 (d) (3) (ii).

Post-secondary Diploma and Post-secondary Certificate Requirements

A Post Secondary Diploma is defined under NAFTA as “a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada or the United States.” 8 C.F.R. § 214.6 (c).

A Post Secondary Certificate is defined under NAFTA as “a certificate issued, on completion of two or more years of post secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.” 8 C.F.R. § 214.6 (c).

Post-secondary diplomas or post-secondary certificates must be issued from educational institutions located in a NAFTA country in order to be acceptable under the NAFTA regulations. Cronin, Memo to Regional Directors, Guidance for Processing Applicants under NAFTA (Oct. 30, 2000).