[Federal Register Volume 73, Number 201 (Thursday, October 16, 2008)]
[Rules and Regulations]
[Pages 61332-61336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24600]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Parts 214 and 248
[CIS No. 2429-07; DHS Docket No. USCIS-2007-0056]
RIN 1615-AB64
Period of Admission and Extension of Stay for Canadian and
Mexican Citizens Engaged in Professional Business Activities--TN
Nonimmigrants
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations to allow an increased period of admission and extension of
stay for Canadian and Mexican citizens who seek temporary entry to the
United States as professionals pursuant to the TN classification, as
established by the North American Free Trade Agreement (NAFTA or
Agreement). This final rule increases the maximum allowable period of
admission for TN nonimmigrants from one year to three years, and allows
otherwise eligible TN nonimmigrants to be granted an extension of stay
in increments of up to three years instead of the current maximum of
one year. In addition, this rule grants the same periods of admission
or extension to TD nonimmigrants, the spouses and unmarried minor
children of TN nonimmigrants to run concurrent. The rule also removes
the mention of specific petition filing locations from the TN
regulations and replaces the outdated term ``TC'' (the previous term
given to Canadian workers under the 1989 Canada-United States Free
Trade Agreement) with ``TN.'' This rule will reduce the administrative
burden of the TN classification on USCIS, and will ease the entry of
eligible professionals to the United States.
DATES: This final rule is effective October 16, 2008.
FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, Adjudications
Officer, Business and Trade Services, Office of Service Center
Operations, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., 2nd Floor, Washington,
DC 20529, telephone (202) 272-8410.
SUPPLEMENTARY INFORMATION:
I. Background
A. NAFTA and the TN Classification
NAFTA and the NAFTA Implementation Act, Public Law 103-182,
redesignated section 214(e) of the Immigration and Nationality Act
(INA) to create the ``trade NAFTA'' (TN) nonimmigrant classification
and provide for the temporary entry of qualified business persons from
each of the countries that signed the Agreement. The TN nonimmigrant
classification permits qualified Canadian and Mexican citizens to seek
temporary entry as business persons to engage in professional business
activities at a professional level in the United States. 8 CFR
214.6(a). DHS regulations currently require that TN nonimmigrants may
be admitted to the United States for a period not to exceed one year. 8
CFR 214.6(e). The regulations further provide that TN professionals may
apply for extensions of stay for a maximum period of one year. 8 CFR
214.6(h)(1).
B. Proposed Rule
On May 9, 2008, DHS published a notice of proposed rulemaking in
the Federal Register at 73 FR 26340 proposing a change in the period of
admission and extension of stay granted to TN nonimmigrants from Canada
and Mexico engaged in professional business activities. The notice also
proposed granting the same period of admission or extension of stay to
TN dependents (TD nonimmigrants), removing outdated references to
specific filing locations and prior requirements, and replacing the
outdated term TC with the current TN term. Written comments to the
proposed rule were due on or before June 9, 2008.
In this final rule, DHS is adopting the proposed rule with no
changes. The proposed rule was, and this final rule is, intended to
improve the administration of the TN program and make it more flexible
and attractive to Canadian and Mexican professionals and to employers
in the United States. Currently, DHS regulations require TN
nonimmigrants, to either seek readmission in TN status or apply for
extensions of stay annually if they wish to remain in the United States
beyond the period of their initial admission. 8 CFR 214.6(h). This
requirement involves the annual submission of documentation and payment
of filing fees. By removing these types of administrative requirements
on TN employees and their U.S. employers, DHS will further the intent
of NAFTA to facilitate the entry of eligible professionals into the
United States.
II. Comments Received in Response to the Proposed Rule
DHS received 80 comments in response to the proposed rule. The
majority of commenters (76) supported this rulemaking. Many of these 76
commenters suggested additional changes or enhancements to the TN
classification regulations which were not part of the proposed rule.
Two commenters opposed the proposed rule. One of these two commenters
asked questions about lawful permanent residence and educational
opportunities for aliens in the TN classification, but did not express
an opinion on the proposed rule. The second of these two commenters
simply complained about a perceived slight to U.S. workers contained in
another public comment. Many of the received comments raised issues
that are beyond the scope of this rulemaking but will be mentioned
briefly as part of this disposition of the comments.
A. Increase to Three Years for Admissions and Extensions of Stay
Comments on period of admission: The overwhelming majority of the
commenters supported increasing the period of admission and extensions
of stay granted to TN nonimmigrants from one to three years. Only two
commenters opposed this proposal because they thought that jobs should
be offered to U.S. workers rather than to foreign nationals. One
commenter stated that the U.S. economy is suffering and jobs should
thus be reserved for U.S. workers. The other commenter stated that the
United States is presently flooded with immigrants and the TN program
should be shut down while the country sorts out the problems with
illegal immigrants present in the United States, and also made
additional comments about aliens, politicians and the U.S. government
in general.
[[Page 61333]]
Response to comments on period of admission: DHS has not adopted
these comments in opposition. This rule does not make it easier to hire
TN nonimmigrants by altering eligibility requirements, changing
existing filing fee requirements, or expanding the principle of ``dual
intent.'' Rather, this rule simply increases the amount of time granted
to a TN nonimmigrant once all eligibility requirements have been
established. This rule has nothing to do with permanent immigration or
illegal immigrants presently within the United States.
B. Other Comments
Comments on dual intent: Thirteen commenters requested that TN
nonimmigrants be granted ``dual intent'' and thereby be allowed to
pursue permanent resident status while present in the United States in
nonimmigrant status similar to the H-1B and L-1 nonimmigrant programs.
Response to comments on dual intent: The dual intent doctrine holds
that even though a nonimmigrant visa applicant has previously expressed
a desire to enter the United States as an immigrant, and may still have
such a desire, that does not of itself preclude USCIS from issuing a
nonimmigrant visa to him or her nor preclude his or her being a bona
fide nonimmigrant. Matter of H-R-, 7 I&N Dec. 651, 654 (INS Reg. Comm'r
1958). See also INA section 214(h) (limiting dual intent to certain H,
L, and V nonimmigrants); 8 U.S.C. 1184(h). Dual intent cannot be
provided solely through regulation; it must be authorized by statute
and it is not authorized in the TN nonimmigrant context. Furthermore,
temporary entry, as defined in Chapter 16 of the NAFTA, Article 1608,
is ``entry into the territory of a Party by a business person of
another Party without the intent to establish permanent residence.''
Congressional approval of this Article in the NAFTA treaty indicates
that Congress did not intend TNs to have dual intent. Therefore, the
commenters' suggestion will not be adopted because it is clearly
inconsistent with Article 1608 and Congressional intent.
Comment on inability of Mexican TN nonimmigrants to apply for
admission at the border: One commenter requested that Mexican TN
nonimmigrants be able to apply for admission at designated ports-of-
entry similar to Canadian TN nonimmigrants. Currently, Mexican workers
are required to obtain visas from the Department of State (DOS) before
entering the United States.
Response to comment on inability of Mexican TN nonimmigrants to
apply for admission at the border: DHS appreciates the suggestion made
by this commenter but the suggestion is outside the scope of this
regulation. This rule deals with increasing the period of time granted
to a TN nonimmigrant upon admission or pursuant to a timely filed
request for extension of stay from a maximum of one year to a maximum
of three years. Any additional regulatory changes, including a change
to the place of admission, exceed the scope of this rule The
commenter's suggestion, therefore, is not adopted.
Comment on advance approval of Canadian admission requests: One
commenter requested that Canadian TN nonimmigrants be permitted to file
petitions with USCIS Service Centers for admission as an alternative to
requesting admission at U.S. ports-of-entry, so that applications for
TN status can be approved in advance of entry dates rather than
requiring intended employees to actually apply for status before
knowing whether their applications will be approved.
Response to comment on advance approval of Canadian admission
requests: DHS appreciates the suggestion made by this commenter.
However, such reform exceeds the scope of the changes in the proposed
rule and is not adopted in this final rule. The suggestion may be
considered for future rulemaking involving TN nonimmigrants.
Comments on erroneous periods of admission: Several commenters
suggested that some TN nonimmigrants have erroneously been admitted for
three years instead of a validity period of one year. Thus, one
commenter requested that this rule should have a retroactive effective
date to correct this problem.
Response to comments on erroneous periods of admission: DHS
understands these commenters' concerns. However, TN nonimmigrants who
were admitted for a period of more than the one-year were granted that
period of admission in violation of 8 CFR 214.6(e) as it existed prior
to this rulemaking. Petitions must be processed in accordance with the
regulations in effect when submitted, and this rule cannot deem those
who were erroneously granted more than one year in the past to meet the
requirements in this rule by making its provisions retroactive.
Therefore, the commenter's suggestion was not adopted. Each TN
nonimmigrant erroneously admitted for periods of three years prior to
the effective date of this rulemaking is encouraged to correct his or
her Form I-94 at a port-of-entry or deferred inspection station to
ensure compliance with existing regulations and to ensure that he or
she does not remain in the U.S. for a period longer than is authorized
by law.
Miscellaneous comments: Several commenters requested a more
comprehensive reform of the TN regulations to include the following:
more extensive definitions for the positions of Management Consultant
and Scientific Technician/Technologist; increased vigilance against TN
fraud; the establishment of clear guidelines in determining a ``closely
related'' degree; an increase in the fee for port-of-entry processing
of each TN application; a 30-day period during which the TN worker
could enter the U.S. before the employment start date and/or remain
outside the country without having the TN status invalidated; and work
authorization for the spouses of TN nonimmigrants.
Response to miscellaneous comments: DHS appreciates the suggestions
made by the commenters. However, such comprehensive reform of the TN
program exceeds the scope of the proposed rule, which was simply
focused on allowing TN nonimmigrants and their employers a more stable
and predictable period of employment. Therefore, the commenters'
suggestions are not adopted in this rule.
III. Regulatory Requirements
A. Regulatory Flexibility Act
1. Initial Regulatory Flexibility Analysis
DHS reviewed this rule in accordance with the Regulatory
Flexibility Act and determined that this rule will reduce compliance
costs on the regulated industries. This rule will reduce information
collection costs for the public, and will reduce USCIS legal costs and
the amount of fees collected, because TN and TD status holders will not
have to renew their statuses each year. There are no provisions in this
rule that add compliance costs. Therefore, DHS certifies that this rule
would not have a significant economic impact on a substantial number of
small entities.
2. Final Regulatory Flexibility Analysis (FRFA)
In accordance with 5 U.S.C. 604, DHS performed a final regulatory
flexibility analysis regarding the economic effects of this rule on
small entities. DHS has not identified any duplication, overlap, or
conflict of this rule with other Federal rules. Since DHS does not
foresee the rule having an economic impact on small entities, this rule
does not put forth significant alternatives to minimize impacts. The
rule benefits the United States by reducing burden in the TN
nonimmigrant status program. No
[[Page 61334]]
cost increases due to the revised requirements are expected. USCIS
invited the public to comment on the extent of any potential economic
impact of this rule on small entities, the scope of these costs, a more
accurate means for defining these costs, and the estimated cost to
petitioning firms to comply with the new requirements. In response to
those requests, USCIS received no comments. Therefore, DHS certifies
that this rule will not have a significant economic impact on a
substantial number of small entities. Accordingly, no further
regulatory flexibility analysis is required.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of U.S.-based companies to compete with foreign-based
companies in domestic and export markets.
D. Executive Order 12866 (Regulatory Planning and Review)
This rule has been designated as a ``significant regulatory
action'' by the Office of Management and Budget (OMB) under Executive
Order 12866, section 3(f), Regulatory Planning and Review. Accordingly,
an analysis of the economic impact of this rule has been prepared and
submitted to the Office of Management and Budget (OMB) for review.
DHS has determined that this rule decreases the costs imposed by
the TN nonimmigrant program on the government as well as the public.
The changes made by this rule will result in more satisfaction with the
TN program among TN nonimmigrants and their U.S. employers by
increasing program flexibility and reducing time and travel
restrictions. The expected effect is an increase in the number of TN
nonimmigrants in the United States. A small economic benefit may result
from the increased availability of scarce workers for U.S. employers in
particular fields and industries. This rule will result in cumulative
TN application fees decreasing by approximately $2.4 million per year.
In addition, the total paperwork burden costs on the public will
decrease by about 12,225 hours and $340,000 as a result of fewer
required filings. Eventually, DOS and U.S. Customs and Border
Protection annual fee collections from TN nonimmigrants will also
decrease as a result of this rule. A copy of DHS' complete analysis is
available in the rulemaking docket for this rule at
www.regulations.gov, under Docket No. USCIS-2007-0056, or by calling
the information contact listed above.
E. Executive Order 13132 (Federalism)
This rule will have no substantial direct effects on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (PRA), all Departments are required to submit to OMB,
for review and approval, any reporting or recordkeeping requirements
inherent in a rule. This rulemaking does not impose any new reporting
or recordkeeping requirements under the Paperwork Reduction Act.
However, by requiring TN and TD status renewals every three years
instead of every year, this rule will reduce the volume of Form I-129,
Petition for Nonimmigrant Worker, filings, Form I-907, Request for
Premium Processing Service, filings, and Form I-539, Application To
Extend/Change Nonimmigrant Status, filings per year, and so will reduce
the aggregate paperwork burden on the public accordingly. Accordingly,
USCIS has submitted the OMB Correction Worksheets (OMB-83C) to the
Office of Management and Budget, reducing the burden hours and costs
associated with these forms.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
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Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1258, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law
104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901 note, and 1931 note, respectively; 8 CFR part 2.
Sec. 214.1 [Amended]
0
2. Section 214.1 is amended by:
0
a. Removing the designation ``Cdn FTA, Professional'' and ``TC'' from
the list in paragraph (a)(2);
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b. Removing the term ``TC'' and adding ``TN'' in its place in the first
sentence in paragraph (c)(1).
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3. Section 214.6 is amended by:
0
a. Revising the section heading and revising paragraphs (e), (g), and
(h);
0
b. Redesignating paragraphs (j)(1), (j)(2) and (j)(3) as paragraphs
(j)(2), (j)(3), and (j)(4), respectively;
0
c. Adding a new paragraph (j)(1);
0
d. Revising newly redesignated paragraphs (j)(2), (j)(3), and (j)(4);
and by
0
e. Revising paragraph (k);
The addition and revisions read as follows:
Sec. 214.6 Citizens of Canada or Mexico seeking temporary entry under
NAFTA to engage in business activities at a professional level.
* * * * *
(e) Procedures for admission. A citizen of Canada or Mexico who
qualifies for admission under this section shall be provided confirming
documentation and shall be admitted under the classification symbol TN
for a period not to exceed three years. The conforming document
provided shall bear the legend ``multiple entry.'' The fee prescribed
under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon
admission to the United States pursuant to the terms and conditions of
the NAFTA. Upon remittance of the prescribed fee, the TN applicant for
admission shall be provided a DHS-issued receipt on the appropriate
form.
* * * * *
(g) Readmission. (1) With a Form I-94. An alien may be readmitted
to the
[[Page 61335]]
United States in TN classification for the remainder of the authorized
period of TN admission on Form I-94, without presentation of the letter
or supporting documentation described in paragraph (d)(3) of this
section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1),
provided that the original intended professional activities and
employer(s) have not changed, and the Form I-94 has not expired.
(2) Without a valid I-94. If the alien seeking readmission to the
United States in TN classification is no longer in possession of a
valid, unexpired Form I-94, and the period of initial admission in TN
classification has not lapsed, then a new Form I-94 may be issued for
the period of validity that remains on the TN nonimmigrant's original
Form I-94 with the legend ``multiple entry'' and the alien can then be
readmitted in TN status if the alien presents alternate evidence as
follows:
(i) For Canadian citizens, alternate evidence may include, but is
not limited to, a fee receipt for admission as a TN or a previously
issued admission stamp as TN in a passport, and a confirming letter
from the United States employer(s).
(ii) For Mexican citizens seeking readmission as TN nonimmigrants,
alternate evidence shall consist of presentation of a valid unexpired
TN visa and evidence of a previous admission.
(h) Extension of stay. (1) Filing. A United States employer of a
citizen of Canada or Mexico who is currently maintaining valid TN
nonimmigrant status, or a United States entity (in the case of a
citizen of Canada or Mexico who is currently maintaining valid TN
nonimmigrant status and is employed by a foreign employer), may request
an extension of stay, subject to the following conditions:
(i) An extension of stay must be requested by filing the
appropriate form with the fee provided at 8 CFR 103.7(b)(1), in
accordance with the form instructions with USCIS.
(ii) The beneficiary must be physically present in the United
States at the time of the filing of the appropriate form requesting an
extension of stay as a TN nonimmigrant. If the alien is required to
leave the United States for any reason while the petition is pending,
the petitioner may request that USCIS notify the consular office where
the beneficiary is required to apply for a visa or, if visa exempt, a
DHS-designated port-of-entry where the beneficiary will apply for
admission to the United States, of the approval.
(iii) An extension of stay in TN status may be approved by USCIS
for a maximum period of three years.
(iv) There is no specific limit on the total period of time an
alien may be in TN status provided the alien continues to be engaged in
TN business activities for a U.S. employer or entity at a professional
level, and otherwise continues to properly maintain TN nonimmigrant
status.
(2) Readmission at the border. Nothing in paragraph (h)(1) of this
section shall preclude a citizen of Canada or Mexico who has previously
been admitted to the United States in TN status, and who has not
violated such status while in the United States, from applying at a
DHS-designated port-of-entry, prior to the expiration date of the
previous period of admission, for a new three-year period of admission.
The application for a new period of admission must be supported by a
new letter from the United States employer or the foreign employer, in
the case of a citizen of Canada who is providing prearranged services
to a United States entity, which meets the requirements of paragraph
(d) of this section, together with the appropriate filing fee as noted
in 8 CFR 103.7(b)(1). Citizens of Mexico must present a valid passport
and a valid, unexpired TN nonimmigrant visa when applying for
readmission, as outlined in paragraph (d)(1) of this section.
* * * * *
(j) * * * (1) The spouse or unmarried minor children of a citizen
of Canada or Mexico admitted in TN nonimmigrant status, if otherwise
admissible, may be admitted initially, readmitted, or granted a change
of nonimmigrant status or an extension of his or her period of stay for
the same period of time granted to the TN nonimmigrant. Such spouse or
unmarried minor children shall, upon approval of an application for
admission, readmission, change of status or extension of stay be
classified as TD nonimmigrants. A request for a change of status to TD
or an extension of stay of a TD nonimmigrant may be made on the
appropriate form together with appropriate filing fees and evidence of
the principal alien's current TN status.
(2) The spouse or unmarried minor children of a citizen of Canada
or Mexico admitted in TN nonimmigrant status shall be required to
present a valid, unexpired TD nonimmigrant visa unless otherwise exempt
under 8 CFR 212.1.
(3) The spouse and unmarried minor children of a citizen of Canada
or Mexico admitted in TN nonimmigrant status shall be issued confirming
documentation bearing the legend ``multiple entry.'' There shall be no
fee required for admission of the spouse and unmarried minor children.
(4) The spouse and unmarried minor children of a citizen of Canada
or Mexico admitted in TN nonimmigrant status shall not accept
employment in the United States unless otherwise authorized under the
Act.
(k) Effect of a strike. (1) If the Secretary of Labor certifies or
otherwise informs the Director of USCIS that a strike or other labor
dispute involving a work stoppage of workers is in progress, and the
temporary entry of a citizen of Mexico or Canada in TN nonimmigrant
status may adversely affect the settlement of any labor dispute or the
employment of any person who is involved in such dispute, the United
States may refuse to issue an immigration document authorizing the
entry or employment of such an alien.
(2) If the alien has already commenced employment in the United
States and is participating in a strike or other labor dispute
involving a work stoppage of workers, whether or not such strike or
other labor dispute has been certified by the Department of Labor, or
whether USCIS has been otherwise informed that such a strike or labor
dispute is in progress, the alien shall not be deemed to be failing to
maintain his or her status solely on account of past, present, or
future participation in a strike or other labor dispute involving a
work stoppage of workers, but is subject to the following terms and
conditions:
(i) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act and regulations promulgated in the
same manner as all other TN nonimmigrants;
(ii) The status and authorized period of stay of such an alien is
not modified or extended in any way by virtue of his or her
participation in a strike or other labor dispute involving a work
stoppage of workers; and
(iii) Although participation by a TN nonimmigrant alien in a strike
or other labor dispute involving a work stoppage of workers will not
constitute a ground for removal, any alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to removal.
(3) If there is a strike or other labor dispute involving a work
stoppage of workers in progress but such strike or other labor dispute
is not certified under paragraph (k)(1) of this section, or USCIS has
not otherwise been informed by the Secretary that such a strike or
[[Page 61336]]
labor dispute is in progress, Director of USCIS shall not deny a
petition or deny entry to an applicant for TN status based upon such
strike or other labor dispute.
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
0
4. The authority citation for part 248 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
Sec. 248.3 [Amended]
0
5. Section 248.3 is amended by removing the term ``TC'' and adding the
term ``TN'' in its place in the first sentence of paragraph (a).
Dated: September 15.
Michael Chertoff,
Secretary.
[FR Doc. E8-24600 Filed 10-15-08; 8:45 am]
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