It is a common scene, repeated over and over again at the various border posts in the United States and Canada. A young Canadian executive approaches a US Department of Homeland Security official and hands her a small stack of documents prepared for him by the Human Resources Manager of her prospective employer.
“I am here to apply for a TN visa,” declares the applicant.
“In what category?”
“Uh… Management consulting.”
The immigration officer looks at the documents with an air of distance and tells the applicant to take a seat. Thirty minutes later, the officer calls the applicant into an office and subjects him to a grueling hour of cross-examination.
“What’s this?” the officer asks, putting a piece of letterhead in his face.
The applicant examines the document. “It’s a letter from the company that wants to hire me.”
“It’s too short and doesn’t describe a management problem,” the officer says, tossing the letter aside and pulling out another document. “How about this?”
“That’s my resume,” the applicant replies, his face flushing red.
“Uh, huh…” says the officer. “What are you trying to do here?”
“What do you mean?” ask the applicant.
“You are not a management consultant. You have no management experience.”
And so…
The result: Denial of the TN request. The reason: The position or applicant does not qualify for the management consultant designation. The consequences: lost time, lost money, loss of a potentially valuable employee, loss of a lucrative job opportunity, and humiliation.
The Management Consultant Category: An Incorrectly Perceived Loophole
As most people involved in human resource management know, the North American Free Trade Agreement (NAFTA) has simplified the placement of certain Canadian professionals in high-demand jobs in the United States. As long as the candidate fits the standard professional categories listed in NAFTA Appendix 1603.D.1, the interested company can avoid the longer processing times and higher fees associated with the H-1B visa.
Most NAFTA categories require at least a bachelor’s degree. And as long as the candidate can show that he has the required education, approval of a TN visa is virtually assured. For example, a Canadian engineer with a bachelor’s degree should have no problem qualifying for an engineering position with a US company.
However, some NAFTA categories allow for the substitution of work experience in lieu of a bachelor’s degree. One of these is the category of management consultant, which allows “five years of experience as a management consultant, or five years of experience in a specialty field related to the consulting arrangement” to substitute for a missing bachelor’s degree.
Unfortunately, many human resource managers incorrectly perceive the management consultant category as a kind of “loophole” in immigration law that allows them to place well-qualified candidates who have not completed a formal degree program, but are qualified for the job. Market Stall. offered because of their expertise in the subject field.
Thus, human resource managers frequently send unlicensed individuals, such as IT professionals with no management experience, to the border, supposedly to accept a job in the United States as a “management consultant”; or they send undegreed candidates with managerial experience to the border, with the intention of placing them in long-term managerial positions in American companies. Applications like these are invariably doomed to fail.
Why is it so difficult to obtain the management consultant designation?
USCIS Free Trade Officers are well aware of the misperceptions that exist regarding the category of Management Consultant. Countless bogus TN claims in this category are adjudicated and denied on a daily basis. So any time someone shows up at a US/Canadian border with a TN application for admission through the management consultant category, the officer’s guard is immediately up.
While it is difficult for the officer to deny a TN visa when the applicant has a college degree, it is quite easy to question whether an applicant’s experience without a degree is “relevant” to the management consultant position being offered. It is important to realize that US immigration law gives its Free Trade Officers full and unrestricted discretion in making a decision on a NAFTA visa application. Denials are not appealable. So when they get the chance to use this discretion, they do so… heartily.
Make no mistake: the Free Trade Officer will review every word of a TN application, compare the applicant’s CV to her employment-based reference letters for contradictions, and review the company’s cover letter and financial statements. Finally, the officer will thoroughly question the applicant regarding her alleged prior experience and her proposed duties with the new company. Most applications in the management consultant category do not stand up to this type of scrutiny.
So what exactly is a management consultant anyway?
Contrary to the belief of most human resource managers, a “management consultant” (for purposes of US immigration law) is not a manager. A “management consultant” is a management consultant hired by an organization to help solve a particular management problem. Free trade officials see these consultants as “guns for hire”: they are hired to solve a particular problem and then have to walk away. Company benefit offerings such as retirement and 401K plans, stock options, and life insurance are inconsistent with These types of benefits are all trappings of a permanent employee, not a short-term temporary employee.
Therefore, at a minimum, the company’s cover letter to the INS must indicate in particular the management problem to be solved, the reason for the short-term need for an external consultant, how the applicant is qualified to solve the problem, and compensation terms. The application must also include a detailed CV documenting at least five full years of relevant experience, as well as detailed letters of reference from all previous employers according to the CV. Inconsistencies between any of the above documents will be duly noted by the Free Trade Officer and will likely result in the denial of a TN visa.
The effect of past denials
All is not lost if a free trade officer denies a TN visa. That same full and unrestricted discretion exercised by a free trade officer empowers the next officer to reconsider an application as if it were filed for the first time, if the officer so desires. Because of this, it is quite possible for an applicant to be turned away by an officer at Niagara Falls in the morning and admitted by another officer at Pearson International Airport in the afternoon, with no change to the application. However, our firm does not recommend the latter approach, because some officers will perceive the new request on the same day as an attempt to game the system.
Our firm has successfully helped a large number of people who have been turned down once, twice, or even three times. (Of course, the more times one has been denied, the more difficult the case becomes.) Our task as experienced immigration attorneys is the same in all these cases: a.) Complete Evaluation of the Applicant and the Proposed Employment; b.) Selection of the Appropriate Visa Category; and c.) Assembling the Most Friendly USCIS Visa Application Possible.
Some recommendations
It is always best for all parties involved if, instead of trying to handle important immigration matters on their own, HR managers and prospective TN applicants take the time to consult with an immigration professional before applying for a visa. visa. The savings in time, money and frustration are well worth the investment. However, if you insist on handling these sensitive cases on your own, it is helpful to keep the following in mind:
1. A management consultant is a hired gun: a management consultant hired to solve a short-term management problem;
2. A management consultant must not be compensated above base salary;
3. A non-degree applicant must have a minimum of five full years of verifiable experience as a management consultant or in a specialty field related to the consulting engagement. Make sure you have the documents to prove the five years;
4. There should be no discrepancy between any of the documents submitted to the Free Trade Official;
5. The applicant must be prepared to respond intelligently and in detail to the officer’s questions regarding: a.) the applicant’s past experience, and b.) the management problem he or she is being hired to solve;
6. A TN request must be made in conjunction with an “entry”. Therefore, the applicant should not be instructed to drive to the border in advance to see if the officer will issue the visa; and finally
7. Always remember that Free Trade Officials have full and unrestricted discretion to rule on NAFTA cases. Therefore, the applicant must present himself with the most respectful attitude possible.
