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12/22/2017 - CBP Practice Alert: International Travel for Economist TN Holders

AILA Doc. No. 17122215 | Dated December 22, 2017

On November 20, 2017, USCIS issued a policy memorandum on TN nonimmigrant Economists. The policy points established in the memorandum are:

- For purposes of the TN classification, whether a job is that of an Economist is determined by the primary activity, not the job title.

- If the job duties for the position primarily include the activities of other occupations, including but not limited to Financial Analysts, Market Research Analysts, and Marketing Specialists, the individual will not qualify for TN status as an Economist.

- The Department of Labor (DOL) Standard Occupation Classification (SOC) system specifically excludes Market Research Analyst and Marketing Specialist from the definition of Economist. Therefore, persons who are engaged in activities associated with Market Research Analysts and Marketing Specialists as described in the SOC and the BLS Occupational Outlook Handbook (OOH) do not qualify as TN Economists.

- Though the occupations of Economist and Financial Analyst are related, Financial Analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions. Therefore, consistent with the SOC, USCIS considers Financial Analyst and Economist as two separate occupations for purposes of TN status.

While USCIS is bound by this guidance as of November 20, 2017, as of December 22, 2017, the Department of State (DOS) has not posted a Transmittal Letter to the Foreign Affairs Manual (FAM) revising its policy on NAFTA Professionals, located at 9 FAM 402.17. In addition, members should note that CBP does not always follow USCIS guidance and it is unknown at this time whether CBP policy has changed or will change its policy to align with the USCIS memorandum. Informally, AILA members have reached out to CBP officials at various ports of entry and have been informed that no guidance or musters have been issued to date. One port noted that if such guidance is issued, CBP may revoke the TN status of previously approved individuals encountered at ports of entry who are seeking readmission in TN status as Economists.

Other ports noted that CBP’s training and reference materials on TN adjudications have continually referred to the OOH as a tool for determining whether the applicant meets the requirements for the occupations listed in 8 CFR 214.6(c) and Appendix 1603.D.1 to Annex 1603 of NAFTA. It is therefore not clear whether CBP would consider the USCIS policy memorandum as meriting a muster.

CBP has the authority to refuse admission to anyone it deems inadmissible to the United States. This authority includes inadmissibility under INA §212(a)(7) for those who fail to present proper documents. This category could be used to deny admission to individuals with previously approved TNs who are classified as Economists and, upon review, are considered Financial Analysts, Market Research Analysts, or Marketing Specialists.

Before traveling with a TN approval in the Economist category about international travel, these uncertainties should be taken into consideration. It should be stressed, however, that at this time AILA is not aware of any official CBP policy on this issue.

AILA Doc. No. 17122215.