In order to qualify for TN status under NAFTA, the Canadian or Mexican citizen applicant must be entering the United States to perform prearranged business activities for a U.S. entity, at a professional level, in one of the professions listed in Appendix 1603.d.1 to the NAFTA.
In order to qualify for TN status under NAFTA, the Canadian or Mexican citizen applicant must be entering the United States to perform prearranged business activities for a U.S. entity, at a professional level, in one of the professions listed in Appendix 1603.d.1 to the NAFTA. Each profession on the list is accompanied by a description of the credentials required to prove that the applicant is qualified to perform the job duties. For most professions on the list, the requirement is simply, “Baccalaureate or Licenciatura Degree,” with several noteworthy exceptions. The question arises, then, as to whether the degree must be directly related to the profession, as is required for H-1B classification. In short, the answer is a very nuanced “no.”
Before getting into why the answer is “no,” applicants who find themselves in this boat would be best served to first consider whether there is an alternative manner in which they would qualify for the TN. For example, someone who is applying for TN status as a Management Consultant, who has a degree in History and is coming to the U.S. to be a Functional IT Consultant, doesn't need to go to the trouble of making the argument that their degree qualifies them for TN status if they can prove that they meet the alternative requirement of having 5 years of experience as a Management Consultant. It's just easier to get the letters of experience.
That said, if there is no alternative grounds for qualifying for the TN, the legal argument can certainly be made that someone who has an unrelated degree nevertheless qualifies for TN status. The first hurdle to overcome in presenting such a case is to demonstrate to the CBP officer that the NAFTA does not require that the degree be related. Because officers see so many cases in which the person's degree is directly related to the job he will fill, it becomes an assumption that this is actually a requirement when, in fact, it is not. How do you demonstrate this? First, you can point out that nothing in the NAFTA says the degree has to be related. Imposing additional legal requirements on applicants beyond what the law and/or regulations require is known as ultra vires and impermissible. Second, you can point out that there is actually one profession on the list of TN professions which explicitly does require that the degree be related: Hotel Manager. The fact that there is one profession on the list which requires a related degree when no others do, is very strong evidence that NAFTA's drafters knew how to use language requiring a related degree where they wanted to, and intentionally chose not to in all but one case.
Once you overcome the initial resistance to the concept of an unrelated degree, the fact remains that TN regulations at 8 C.F.R. § 214.6(b) require the TN applicant to enter the U.S. for the purpose of performing “business activities at a professional level,” which is defined 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 in a profession set forth in Appendix 1603.D.1 of the NAFTA.
This is the catch: the applicant must show that he has attained the status as a professional in one of the professions on the list, and must also show that he has a bachelors degree. For someone whose bachelor's degree is directly related to the field, the degree proves two things: (1) that he has the required degree, and (2) he's a professional in a field on the TN list. But for someone with an unrelated degree, the degree only proves that he has the required degree, and NOT that he is a professional in one of the TN fields. So he must provide alternative evidence to meet this requirement. Typically that alternative evidence consists of letters of experience from prior employers for whom he has worked in the field, but in individual cases alternative evidence may prevail. For example, I recently had a client whose TN was approved as a Graphic Designer even though his degree was in History. He was fresh out of college and therefore had no letters of experience to provide. However, he was self-taught, and had done a great deal of freelance work on the side while a student and had a very impressive portfolio which he carried with him to the border, together with paid invoices from his clients. He was questioned extensively but the application ultimately was approved.
To summarize, a TN applicant need not have a degree that is directly related to his profession, but if his degree is not directly related, he must prove by alternative means, such as letters of experience, that he is qualified to perform the duties of a job in the profession. If the applicant acquired his professional skill set on the job, the letters are most convincing if they cover a lengthy period of employment and demonstrate that he worked in positions of progressively more responsible experience related to his profession. Evidence of on-the-job training or related coursework is also persuasive. Unlike H-1B adjudications, there is no set of rules for demonstrating how one acquires “status as a professional” in one of the TN professions. Therefore, there is a great deal of officer discretion involved in these adjudications, but there is also a great deal of room for persuasive arguments to be made based on the individual applicant's unique background.
It is worth noting, in closing, that for the CBP officers at the border, there is another concern lurking in the backs of their minds when they see an applicant with a totally unrelated degree. The concern is that there is some fraud in the application, and that the job that is being offered may not actually exist as described in the TN letter. They may question whether the job duties really fall into the TN profession at all or whether the employer REALLY wants the applicant to come down to the U.S. to engage in another job altogether—one that does not fall on the NAFTA. The officer may even call the company at the number on the letterhead to verify the applicant's proposed duties in the U.S. With this in mind, it is helpful to include as much information as possible in the TN letter to alleviate this concern, including a thorough description of what the company does, where the applicant's job fits into the overall mission of the company and why the applicant's unique background qualifies him specifically to do the proposed work.
TN applications with unrelated degrees can be approved, but they tend to be some of the most difficult TN applications we handle. Not every case with an unrelated degree is approvable, but many are, if the applicant can provide documentary evidence of the method by which he attained the status of a professional in his field.
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