MANAGEMENT CONSULTANT AND SCIENTIFIC TECHNICIAN
Pitfalls and Possibilities
Most TN classifications require that the applicant hold a bachelors degree, or its equivalent, that is related to the occupation in which he or she will work. The two exceptions to this rule are the Management Consultant
and the Scientific Technician/Technologist TN categories. Because Management Consultant and Scientific Technician TN applicants are not required to hold a degree, the Homeland Security Department views those two categories as subject to abuse by people who would not otherwise qualify for TN status. Therefore those who truly qualify are subject to greater scrutiny and must present thoroughly documented TN applications.
Background: Why Degrees are Not Required
Scientific Technicians/ Technologists are not required to have any degree at all. They were added to the list of TN “professions” as a result of negotiations surrounding the passage of the North American Free Trade Agreement. Prior to the passage of NAFTA, crews of engineers would come to the U.S. for short-term projects but there was no category under which their supporting technicians could enter to assist them in the U.S. NAFTA included Scientific Technicians on the list of TN professions as a way to facilitate their passage to the U.S. The TN regulations still require that Scientific Technicians enter the U.S. for the purpose of supporting a degreed Engineer.
In November of 2002, INS issued a memo stating that because all TN categories require business activities at a professional level, all Scientific Technician/ Technologist applicants “should” have successfully completed at least two years of education in a related field. Some ports of entry read the memo to say that the applicant must have obtained an Associates degree or other type of certification for a completed course of study, while other ports require only that the applicant has completed two years of study in a four year program which he/she has not yet completed.
Management Consultants are required to have either a 4-year degree or 5 years of experience either as a Management Consultant or in the field in which they will consult. The lack of a degree requirement for Management Consultants is a practical consideration based on the nature of the work performed by consultants; the assumption is that people can consult on a professional level based on experience. The lack of a degree requirement in the Management Consultant context has not come under the same level of scrutiny as the Scientific Technician category. However, ports of entry generally give more scrutiny to Management Consultant applications than to applications made under other TN categories.
Tips for Presenting an Approvable TN Application for a Scientific Technician/ Technologist
1. Before applying for the TN, find out from an attorney who represents TN applicants at the border, or from fellow TN applicants, how different ports interpret the educational requirements for Scientific Technician/ Technologist applications.
2. If you have an Associates Degree or other 2-year degree related to your field, provide copies of it with your application. If you have not received a degree/ certificate, but you have completed two years of a four year degree, provide transcripts showing completion of courses and argue that you “successfully completed” those two years by receiving passing grades in the courses. If, on the other hand, you have not completed any post-high school education, provide letters of experience from past employers and explain how you have acquired professional level skills in your field through experience.
3. Explain how the project you will be working on in the U.S. causes your work to be interrelated with the degreed Engineer(s) in support of whom you will be working. Provide a copy of the Engineer’s degree.
4. As with any type of TN application, check the Occupational Outlook Handbook to ensure that your proposed job functions are consistent with those of a scientific or engineering technician or technologist.
Tips for Presenting an Approvable TN Application for a Management Consultant
While Management Consultants are not subject to the same education requirements as Scientific Technicians/ Technologists, they are subject to a different kind of scrutiny. Customs officers at ports of entry are wary of people using the Management Consultant category simply because they don’t have a degree, or because their job doesn’t fit under any of the other TN categories. They analyze TN applications to make sure that the applicant is not really performing another job for a company under the guise of a “management consultant.” Therefore it is important for Management Consultants applying for TNs to thoroughly explain the nature of their consulting work.
The Operating Instructions define a Management Consultant as
providing services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization, and operation. Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. As salaried employees of such a U.S. entity, they can fill supernumerary temporary positions. Individuals may qualify for this position by holding a baccalaureate degree, by having five years of experience in the field of management consulting, or by having five years of experience in a field of specialty related to the consultant agreement.
It is clear from the definition of Management Consultant used by the Department of Homeland Security that the consultant must be coming to fill a temporary position and not a permanent position, managerial or otherwise, with the company. The consultant’s job must not be essential to the routine operation of the company to which he provides his consultation services. Rather, the consultant must fill an advisory role wherein the company hires him to analyze current operating procedures or strategies; where he suggests changes to company policy so as to create a more efficient, customer-friendly, or otherwise improved company. The very nature of a consultant requires that he stand at an objective distance from the company and evaluate it; he is hired for his objectivity and his breadth of experience.
It is important in preparing a Management Consultant TN application that the applicant describe his prospective job in light of this conception of consulting work. Many consultants work in the manner described above but fail to use the proper language to describe their role when applying for a TN at the border. Applicants must clearly stress the objective, supernumerary nature of their work. They must explain that they are not being hired to fill a permanent position in the company on a temporary basis. When a Management Consultant finishes his job there should not be a Management Consultant position left open with the company; the consultant completes his job and the position ceases to exist.
Some Customs officers will deny TN renewal applications because they believe that Management Consultants cannot carry on their consulting work for a period of several years and truly be doing consulting work. However, there are cases where a company requires the work of a consultant over the period of a few, or even several, years. In such cases it is imperative that the applicant explain the changing nature of his work with the company. For example, is the consultant reviewing company policies department by department? Does he advise on company policy for each new product line the company launches? The applicant must explain the ongoing nature of his consulting work.
