A recent liaison meeting with the Customs and Border Protection unit in San Diego provided some clarification on some recent issues with nonimmigrant visas. Below are some questions and answers on some of the nonimmigrant visa issues that were raised at the meeting.
B-2 Admissions – Length of Aggregate Admission in One Year
AILA members report that CBP officers are instructing applicants for admission as B-2 visitors that they are limited to a total period in the United States of no more than six-months in one year. Nonimmigrant aliens who apply for admission as B-2 visitors are being questioned regarding the number of occasions on which they have been in the United States to confirm that the alien has not exceeded 180 days. The U.S. Department of Homeland Security (DHS) regulation, however, does not limit admissions to a total of six months within one year.
The question asked at the liaison meeting was that if an alien is otherwise admissible as a B-2 visitor for pleasure, a CBP officer should not limit the admission of that alien to 180 days in a twelve-month period. Can this be confirmed?
CBP responded that if an alien applicant is otherwise admissible as a B-2 visitor, and passport validity requirements are met, the applicant can be issued more than one 180-day admission period in a 12-month period.
Another question asked was, assuming an individual is otherwise eligible for admission, please confirm that eligibility for admission as a visitor is determined by the nature and expected duration of the intended activity in the U.S.
CBP responded that alien applicants for admission in the B-2 classification are determined to be eligible for that classification based on the purpose of their visit to the U.S., as well as the anticipated period of stay.
It was further noted at the liaison meeting that while previous presence in the U.S. is a relevant factor in determining whether an alien maintains a residence abroad that he or she has no intention of abandoning, please confirm that inspecting CBP officers should not focus solely on the amount of time an individual has previously spent in the United States to determine eligibility for admission as a visitor.
CBP responded that all nonimmigrant applicants seeking admission as B-2 visitors are required to satisfy the inspecting CBP Officer that they are entitled to the admission and classification that they seek, including proving that they maintain a foreign residence abroad that they have no intention of abandoning. A variety of factors are to be taken into consideration by the inspecting officer, including, but not limited to, the intended length of stay, proof of foreign residence, and financial solvency.
Because there have been concerns that immigration officers are not properly trained, it was inquired at the meeting that for the San Diego CBP port of entry, please identify the procedure available to seek supervisory review of an officer’s refusal to admit a visitor due to the period of time he or she was previously present in the U.S.
In instances in which an officer refuses to admit a visitor due to the period of time he/she was previously present in the U.S., the applicant can ask to speak to the Supervisory CBP Officer who is assigned to the area in which the inspection took place. Such refusal would definitely result in a visa cancelation taking place, in which case an inquiry with the Special Cases Office could be initiated in order to have the cancellation reviewed.
TN-2 Nonimmigrant Aliens – Period of Admission (Mexican Citizens)
The North American Free Trade Agreement (NAFTA) allows certain Canadian and Mexican professionals to qualify for the TN nonimmigrant classification to provide professional services in the United States. Before a citizen of Mexico becomes eligible to apply for admission to the United States in TN status, he or she first must have been issued a TN visa by a U.S. consulate. After obtaining the TN visa, the Mexican citizen may apply for admission in TN status at a Class A port of entry (POE) to the United States, at an U.S. airport handling international traffic, or at a preclearance or preflight inspection station with flights bound for the United States. Under the Department of State’s current visa reciprocity schedule, a consular officer may issue the TN visa to a Mexican citizen for a maximum of one year. A citizen of Mexico with a valid TN visa may be admitted for a period of up to three years. Accordingly, the validity of a TN visa does not determine the period of time for which a Mexican nonimmigrant alien may be admitted in TN status, which is consistent with a Department of State (DOS) regulation.
AILA lawyers wanted confirmation that a Mexican citizen with a valid TN visa may be admitted in TN status past the date on which the TN visa expires.
CBP responded that as with all nonimmigrant classifications, a Mexican citizen with a valid TN visa may be admitted past the expiration date of the visa. Under U.S. immigration law, the period of admission granted to a nonimmigrant is not bound by the expiration date of the visa, and the visa need only be valid at the time of the application for admission. The period of admission granted to a nonimmigrant is bound by the validity of the passport, which needs to be valid for the duration of the desired period of admission.
Further clarification was requested in that AILA lawyers wanted confirmation that a Mexican citizen with a valid TN visa may be admitted to the United States in TN status for up to three years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.
CBP responded that a Mexican citizen with a valid TN visa, if otherwise admissible, may be admitted as a TN for up to three years, if applicable, provided that the applicant’s passport remains valid during the duration of that period of time.
Needing further clarification, AILA lawyers asked for clarification in that assuming that the Mexican citizen holds a passport that is valid for at least three years and that the alien is otherwise admissible, please confirm that an employer’s letter or statement confirming that the employer intends to employ the alien for a temporary period of up to three years is sufficient to support admission for the requested period of time.
CBP responded that yes, a Mexican citizen TN nonimmigrant applicant for admission whose passport is valid for the requested admission period, and who is in possession of an employment letter confirming the employment period of up to 3 years, should be admitted for a 3-year admission period. In instances in which an officer refuses to admit a TN applicant for the period of employment up to 3 years, the applicant can ask to speak to the Supervisory CBP Officer who is assigned to the area in which the inspection took place. If this does not occur, an inquiry with the Special Cases Office could be initiated in order to have the admission reviewed.
TN Admissions – NAFTA Occupations and Job Titles
Canadian and Mexican citizens who will be engaged in certain occupations identified in Appendix 1603.D.1 to Annex 1603 of the NAFTA may qualify for TN nonimmigrant classification to work as professionals in the United States. A Mexican or Canadian citizen may work in a position covered by a NAFTA occupation, and the position may include supervisory or managerial duties. For example, an “engineering manager” performs duties that require applying professional level engineering knowledge, as well as supervising the performance of other engineers. Similarly, a “sales engineer” utilizes professional level engineering knowledge to explain the technical and economic advantages of advanced products to current or prospective customers. The job duties of both an engineering manager and a sales engineer typically can only be performed by an engineer with a university degree or equivalent knowledge.
AILA lawyers asked for confirmation that in determining whether the offered job comes within a NAFTA covered occupation, CBP Officers must evaluate the job duties as described in the employer’s statement supporting the application for admission and that the job title alone does control the determination.
In response, CBP stated that As per section 8 CFR 214.6, an applicant seeking admission as a NAFTA professional shall demonstrate business activity at a professional level in one of the professions set forth in Appendix 1603.D.1 to Annex 1603.Therefore, the profession, or job title, of the applicant that is stated on the employment letter must be one of the professions listed in Appendix 1603.D.1, regardless of the duties described in the employer’s statement. This means that the position title must be one of the enumerated professions listed in the appendix under the TN regulations.
With clarification on these visas, some light has been shed on the procedures of these visas. Such clarification goes to serve immigrants in making sure they apply for and get the right visas and length of time on those visas.