Highlights

• TN Visa Trends and Tips for NAFTA Professionals Seeking Employment in the U.S.

• Dutch Airports Tighten Schengen Border Controls

• India FRRO Implements Unofficial Practice Aimed to Protect Local Workers

• Mexican Immigration Officials Making Unannounced Calls to Employers to Verify Foreign Work Authorization Applications

TN Visa Trends and Tips for NAFTA Professionals Seeking Employment in the U.S.

On October 29, 2013, the American Immigration Lawyers Association (AILA) hosted a Web Seminar discussing visa trends and practice tips for Canadian and Mexican NAFTA professionals applying for TN visas to work in the U.S.  Below are some of the major filing strategies and practice points discussed at the seminar:

• Applications for TN professional categories that do not require a Baccalaureate or Licenciatura Degree as the minimum educational requirements (i.e. Scientific Technician), or allow a combination of educational degrees and professional experience to qualify for the category (i.e., Computer Systems Analyst, Management Consultant, and Technical Publications Writer), are more heavily scrutinized by Immigration Officers.

• Self-employment is not allowed for TN visa purposes; however, employment as an independent contractor working for a U.S. entity in accordance with a pre-arranged contract for services is allowed for the TN visa.

• Applying at a different Port of Entry (POE) after a denial, or “POE shopping,” is allowed so long as disclosure is made regarding the previous visa denial and the applicant can present clear reasons to justify the POE change.

• When showing the TN position will be in direct support of a professional for the “Scientific Technician” category, include an attestation from the professional explaining how the TN employee will be working and directly supporting the professional.

• Although the TN visa is not a “Dual Intent” visa, USCIS has amended its I-140/TN policy to reflect that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension and should not automatically result in a denial.

Dutch Airports Tighten Schengen Visa Border Controls

Starting last month, Dutch border officials began to apply more stringent Schengen border controls.  Under the Schengen Agreement, non-European nationals, including visa-waivered nationals, are permitted to visit the Schengen Area for 90 days in any 180-day period.  Anyone who stays beyond this period is deemed an “overstayer.”  Pursuant to the new protocols, travelers who report to passport control at a Dutch airport at least three days beyond the permitted period of stay will immediately receive a written notification containing an entry ban for one or two years.  Travelers should also note that these new instructions do not exclude the imposition of an entry ban in cases of an earlier departure by overstayers.

The ban applies to all Schengen countries and prohibits both long and short stays during the banned period.  Individuals may file an appeal against the ban within four weeks of receipt, and entry bans will also be lifted if residency applications with partners and/or families so require.  Travelers should be advised, however, that such removal of the Schengen ban does not apply to other residency applications, such as those for employment or business travel.

India FRRO Implements Unofficial Practice Aimed to Protect Local Workers

The Indian Foreign Regional Registration Office (FRRO) in Hyderabad has routinely exercised an unofficial practice of requiring proof from employers of their efforts to recruit a local worker before hiring a foreign national.  This practice has also been seen in other Indian offices, although with less frequency and consistency than the Hyderabad office.  In light of these procedures, employers should be prepared to demonstrate their efforts to recruit local employees in India.

Specifically, employers should be able to certify that “no similarly-qualified Indian was available” for the position.  In addition, employers should be prepared to show the qualifications, skills, and education of the foreign national as well as proof that the company posted job advertisements through an open recruitment process.  Employers should also be advised that the sufficiency and approval of local recruitment efforts is ultimately at the discretion of Indian immigration officials.

Mexican Immigration Officials Making Unannounced Calls to Employers to Verify Foreign Work Authorization Applications

Mexican immigration officials from the National Institute of Immigration have increasingly been contacting employers who recently filed work authorization applications for foreign nationals in order to verify information submitted with the applications.  The policy originated in Mexico City but is expected to become common practice country-wide.  Due to this new practice, employers should be prepared to corroborate information on foreign national employment applications, such as nationality, job title, description of job duties, and duration of employment in Mexico.