TN Visa Lawyer: Top 5 Tips to be Aware when applying under the Management Consultant Category

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level, as defined in the North American Free Trade Agreement (NAFTA).

Generally, to be eligible for TN status: 1) you have to be a citizen of Canada or Mexico, meaning permanent residents, including Canadian permanent residents, are not able to apply to work as a NAFTA professional; 2) your profession qualifies under the NAFTA regulations; 3) the position in the United States requires a NAFTA professional; 4) you have a proffered job with a U.S. employer; and 5) you need to demonstrate qualifications to practice in the profession in question.

Among all the listed professions, Management Consultant has undoubtedly become the most popular one. Our office has helped various clients obtained their TN status as a Management Consultant. For your reference, here we’ve listed the top 5 points need to pay close attention to when applying under the category of Management Consultant.

I. Must demonstrate previous education (Bachelor’s Degree) and/or at least 5 years work experience in Management/Consulting related field.

Qualified TN applicants should possess a related Baccalaureate or Licenciatura Degree. Otherwise, the TN applicant should have five (5) years relevant experience as a management consultant documented by previous employment letters or professional credentials. The TN applicant should also have a detailed resume documenting the necessary experience, skills, and knowledge to solve the management problem.

Management Consultant is one of only two listed occupations under which an applicant may qualify without a formal degree. An applicant seeking to enter the U.S. as a Management Consultant can either have a Bachelor’s Degree, or a licenciatura Degree, or equivalent professional experience as established by statement or professional credential attesting to five years experience as a Management Consultant, or five years experience in a field or specialty related to the consulting agreement. This partially explains why “Management Consultant” profession becomes the most popular category.

Further, if a proffered job description does not consistent with any of the professions on the NAFTA list, he or she may not qualify for the TN nonimmigrant status. Management Consultant is broad enough to encompass numerous jobs that might not otherwise fall under the professions in the NAFTA list.

II. Must not involve active management of the company or a department.

The TN applicant should describe the reason for the short-term need for an outside consultant. The TN applicant’s duties should not involve active management of the company or a department. The TN applicant should provide the name and title of the individual the TN applicant will report to and the department or staff that will implement the TN applicant’s plan, suggestion, recommendations.

TN applicant’s consulting services should be directed toward improving the managerial, operating, and economic performance of the company. Consulting service should involve analyzing and resolving the strategic and operation problems. The TN applicant should describe how the TN applicant’s consulting service will improve the company’s goals, objectives, policies, strategies, administration, organization, and operations. The officers have been very strict in reviewing job description of the proffered Management Consultant position. Some officers may only allow Management Consultant to advise the company Management, but not to assist the implementation of their recommendations. In this case, if the job description includes such implementation, there is high chance the application may be denied.

III. Must not assume a position within the company’s regular operation and personnel structure.

Usually, Management Consultants are either independent contractors, or salaried employees of the U.S. entity, to which they are providing consulting services. It should be a position set up independently from other regular positions within the company’s structure. In other words, applicants will have the strongest case when they are permanent full-time employees of a Canadian management consultant firm providing consulting services to the U.S. company, where the TN applicant is engaged as an independent contractor.

Indication of employer/employee relationship or permanence of job will very likely kill the case. Also, there is a high rate of denial when the applicant is a salaried employee of the U.S. company filling a supernumerary temporary position. To sum up, TN applicant cannot assume a position within the regular operational or personnel structure of the U.S. company.

IV. Term of employment

As to the term of employment, although the period of stay for TN nonimmigrant status has been increased from one to three years, Customs and Border Patrol officers have been known to refuse to issue three-year TN status for those applying in this category. Many Customs and Border Patrol officers apparently believe that management consultants need only one year to perform their consulting functions.

Therefore, if a TN applicant is interested in pursuing this category, it is critical to demonstrate why the three-year term is necessary. Proof may involve detailed documentation describing the nature of the work to be performed, how long it will take, and justification for assignment length. If proof is found to be insufficient, the applicant may be granted only one year of TN nonimmigrant status, or denied altogether.

V. Filing process changes depending on whether the applicant is in or out of the United States when case is filed.

If the applicant is out of the United State when case is filed, he or she does not need to obtain a visa from a U.S. embassy or consulate. Instead, he or she should apply for TN status at a U.S. port of entry. No prior approved application is necessary. At the port of entry, make sure you bring the following items:
➢ Proof of Canadian citizenship (e.g. passport, birth certificate, etc.);
➢ Employer support letter that states the job description, term of employment, Beneficiary’s qualifications, benefit and compensation, etc.;
➢ Evidence of any applicable licensure requirements for the position; and
➢ Evidence of professional qualifications (diplomas, transcripts, etc.). If degree was received from an educational institution outside Canada, Mexico, or the U.S., the degree must be accompanied by an evaluation by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials.

If the applicant is within the land of United States, in addition to the above documentations, he or she should file Form I-129 Change of Status petition with TN Supplement Form, usually with the Vermont Service Center.

Please contact our office if you have more questions regarding TN status, we would love to assist.