THE CONCEPT OF "PROFESSIONAL"
Why Aliens Applying for TN Status Must Have A Degree Related To Their Occupation
The North American Free Trade Agreement (NAFTA) facilitates the passage of Canadian and Mexican citizens into the U.S. for the purpose of engaging in “business activities at a professional level.” Aliens applying for entry to the U.S. under NAFTA acquire TN status. The regulations implementing NAFTA requirements at 8 C.F.R. 214.6 define “business activities at a professional level” as
those undertakings which require that, for successful completion, the individual has at least a baccalaureate degree or appropriate credentials demonstrating status as a professional.
The list of TN professions in Annex 1603.D.1 to the NAFTA, and included in 8 C.F.R. 214.6 provides that all but two TN professions require at least a post-secondary degree with most requiring a baccalaureate level degree. For the professions in the list requiring a degree, USCIS requires that the degree be related to the occupation in which the individual will work in the U.S. Yet this requirement is not found anywhere in the NAFTA or in the regulations. This article explains USCIS’s reasoning behind (1) requiring that aliens applying for TN status possess a degree in most cases; and (2) requiring that the degree is related to the occupation in which the TN applicant will work.
Legal History of the Term “Profession”
The term “profession” has a long history in immigration law. Therefore whenever the term is used in a treaty, regulation, or statute, it carries with it a host of implications that are not readily apparent to those unfamiliar with legal history. In order to understand the implications of the word “professional” in NAFTA, it is necessary to understand the historical development of the term.
A Profession is an Occupation for Which a Baccalaureate Degree is the Minimum Requirement for Entry Into the Occupation
The term “profession” first entered the Immigration and Nationality Act in the context of petitions for employment-based immigrants. The EB3 immigrant category includes Skilled Workers, Professionals, and Other Workers. The term “profession” is defined in INA 101(a)(32) as including,
but not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.”
The regulations implementing the Act at 8 C.F.R. 204.5(k) further state that a “profession” includes “any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.”
The concept that a profession includes any occupation for which a degree is required for entry level into the position was forged out through many years of case law. For example, the 1966 decision Matter of Shin, 11 I &N Dec. 686 (BIA 1966), established that holding a degree does not in itself make an individual a professional for purposes of the EB3 immigrant category; the job in which the individual will work must also requireattainment of the degree.
A Profession is an Occupation for Which a Specific Baccalaureate Degree is Required
In order for a discipline to be considered a profession for immigration purposes, the discipline must require that a baccalaureate degree be awarded for academic study in a specific discipline or narrow range of disciplines. This requirement is explained in numerous Immigration and Naturalization Service precedent decisions dating back to 1966. E.g., Matter of Ahmed, 12 I & N Dec. 498 (R.C. 1967) held that in order to be recognized as a member of the professions,the beneficiary must have a baccalaureate degree or its equivalent “in a given field,” namely, the field in which he will be employed. See also, Matter of Palanky, 12 I & N Dec. 66 (R.C. 1966), holding that recognition as a member of the professions
normally requires the successful completion of a specified course of education on the college or university level, culminating in the attainment of a specific type of degree or diploma (Emphasis added).
For a job to be considered within the professions, it is not enough that a petitioner desires to employ a person with a degree; it must be an industry standard that a specific degree or range of degrees is required for the position.
The Concept of the Professional in the H-1B Context
The concept of the “professional” was carried over to the H-1B context in a back-handed manner. The H-1B nonimmigrant category originally permitted aliens of “distinguished merit and ability” to enter the U.S. Then in 1980, Matter of General Atomic Company, 17 I & N Dec. 1980 (BIA 1980) interpreted the “distinguished merit and ability” requirement to encompass any alien coming to the U.S. to perform work in a profession, and who is qualified to do so. Atomic cited case law, such as Shin, supra, from the EB3 immigrant context to define the concept of “professional.” The concept of “professional” originally established in the EB3 context thus worked its way into the H-1B context.
The Immigration Act of 1990 then changed the H-1B category. After the 1990 Act, H-1B status applied not to those of “distinguished merit and ability,” but to aliens coming to the U.S. to work in “specialty occupations.” The new H-1B regulations, which still exist today, codified the requirement that an alien have a degree in the specific specialty occupation; and that a degree be a minimal requirement for entry level into the occupation.
While the word “professional” is not used in the definition of H-1B status in the Immigration and Nationality Act, or in the H-1B regulations, the specialty occupation requirements are drawn directly from the concept of “professional” as developed in case law.
Use of the Term “Profession” In the TN Context
The term “profession” has evolved to mean an occupation for which a specific baccalaureate degree, or range of baccalaureate degrees or their equivalent is the minimum requirement for entry into the occupation. It follows that a “professional” is a person who meets the requirements of the profession by obtaining the required degree.
The use of the term “professional” in the TN context thus means that for any of the occupations listed on Appendix 1603.D.1 as requiring a baccalaureate degree, the TN applicant must have a degree that is related to the occupation in which he will be working.
