The North American Free Trade Agreement (NAFTA), Appendix 1603.d.1, contains a list of professions, the members of which may enter the U.S. to work...
The North American Free Trade Agreement (“NAFTA”), Appendix 1603.d.1, contains a list of professions, the members of which may enter the U.S. to work. To qualify for “Trade NAFTA” or TN status, the professional must be a Canadian or Mexican citizen; must be entering the U.S. to engage in “prearranged business activities” at a professional level; and must possess the credentials listed in Appendix 1603.d.1 of the NAFTA for the corresponding profession.
Most of the professions on the list require that the applicant hold a baccalaureate (Canadian) or licenciatura (Mexican) degree, or foreign equivalent degree. For some of the professions, such as Accountant and Architect, the applicant may alternatively qualify based on a professional license. There are very few professions on the list which require neither a degree nor a professional license. Most notably, Management Consultants may qualify based on either a 4-year degree or five years of experience. The experience may be either experience as a Management Consultant or experience in the field of specialty related to the consulting agreement. An example of a consultant with experience in the specialty related to the consulting agreement would be a former mechanical engineer who has made a transition in his career from performing engineering duties to providing consulting services to manufacturing companies on how they can improve efficiency in their operations. The key is demonstrating how his experience as an engineer qualifies him to advise companies on how to improve their operations. When someone qualifies as a Management Consultant based on experience, the experience typically is proven through letters of experience either from past employers or past clients.
The Management Consultant classification is heavily scrutinized for two reasons:
- Because it is one of the few TN categories that does not require a degree, anyone who does not have a degree tries to squeeze themselves into that classification, whether they qualify or not; and
- It is poorly understood, by everyone, including the applicants themselves, their potential U.S. employers, many immigration lawyers, and many CBP officers.
So what is a Management Consultant? A good starting point for defining the occupation is the now discarded Inspector's Field Manual (“IFM”). The IFM was once the operating manual for CBP but it is no longer considered their official guidance and their new operating manual has not been made public. Nevertheless, the guidance in the IFM as to what a Management Consultant does is very instructive. The IFM defines 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.” Moreover, the IFM states that, “Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. As salaried employee of such a U.S. entity, they can fill supernumerary temporary positions.”
In addition, the Occupational Outlook Handbook, maintained by the U.S. Department of Labor, defines Management Analysts, (which are the same as Management Consultants) as follows:
Management analysts, often called management consultants, propose ways to improve an organization's efficiency. They advise managers on how to make organizations more profitable through reduced costs and increased revenues.
Management analysts typically do the following:
- Gather and organize information about the problem to be solved or the procedure to be improved
- Interview personnel and conduct on-site observations to determine the methods, equipment, and personnel that will be needed
- Analyze financial and other data, including revenue, expenditure, and employment reports
- Develop solutions or alternative practices
- Recommend new systems, procedures, or organizational changes
- Make recommendations to management through presentations or written reports
- Confer with managers to ensure that the changes are working
Although some management analysts work for the organization that they are analyzing, most work as consultants on a contractual basis.
My understanding of Management Consultants, based on the above definitions and years of experience in representing TN applicants in person at the border, is as follows:
- First of all, there are two different kinds of Management Consultants. First, there are the consultants who are hired as full-time employees of consulting firms. They provide consulting services not to their employer but to the employer's clients. For these individuals, the TN would be approved in the name of their employer and it would not be unusual to request the full 3-year validity period for the TN, because it is understood that each consulting assignment may be for a shorter duration, but the person will be reassigned perpetually to new clients when each engagement ends.
The second type of Management Consultant is the type that is hired directly by the company to which they will provide consulting services. For this latter type, the employee usually is not hired as a W-2 employee but paid on a contract basis, and the engagement is typically for a period shorter than 3 years, such as 6, 12 or 18 months. Usually the parties enter into a Consulting Agreement, a copy of which is useful to provide together with the TN application. It is possible, even in the latter type of case, however, that the consultant may be hired as a W-2 employee for a short term period. This is specifically noted in the IFM, which states that Management Consultants can be hired directly as employees if they fill “supernumerary temporary positions.”
- Management Consultants always fill supernumerary, temporary positions. Being supernumerary means that they do not become part of the organizational hierarchy of the company to which they are providing consulting services. They should never appear on the company's org chart. They should not have a typical employer/ employee reporting relationship to anyone in the company, nor should they supervise or manage any subordinate employees. If you were to visualize their place on a company org chart, there would be the normal line and block drawing of everyone else in the company and the Management Consultant would have his own little cloud floating above everyone else, with a dotted line drawn to the senior management. That is to say, they cannot be coming to the U.S. to become a part of any company. Instead, they must come as someone who stands outside of normal operations and observes and analyzes how things are currently done; who devises a suggested strategy to improve operations, and delivers those suggestions to the senior management of the organization either verbally or in a written report. (If the applicant has experience as a Management Consultant for other companies and has previously written such reports, it is not a bad idea to have him bring a sample report with him when applying for the TN to demonstrate what type of advice he typically gives). Being temporary means that as soon as the Management Consultant has completed his analysis and review, and delivered his report to management, he is done, packs his bags, and leaves. He is the hired gun with outsider expertise who is able to size up a company and tell it how to do a better, more efficient job. In many cases, the consultant may continue to be available to past clients, and may do follow-ups to ensure that the recommendations have been successfully implemented. However, this is typically done remotely, with the Management Consultant no longer on site.
- Management Consultants solve “strategic and operating problems,” as noted in the IFM. They do not solve technical problems. Someone who comes in to solve a technical problem, even if his engagement with the company is short-term, is not a management consultant. For example, if a company needs to update its computer systems and hires someone to come in and install the new software, that person is not a consultant but a Computer Systems Analyst because he is solving a technical rather than a strategic or operating problem.
- “Resolving” is interpreted very narrowly. Some people interpret the concept of “resolving” the company's problems very broadly, to include a lot of hands on work. However, CBP officers construe that term very narrowly, and probably correctly so, in light of the later language in the IFM indicating that the work is to be “temporary” and “supernumerary.” Officers do not want to see Management Consultants engaged in hands-on work that actively resolves the client company's problems. Their role should be hands-off and advisory in nature.
- Information Technology (“IT”) Consultants can be Management Consultants, in limited circumstances. They are Management Consultants if they provide functional, rather than technical, advice to the management of the organization. Often, these individuals are employed either by IT consulting firms, or by companies that sell proprietary software packages in a specific industry. In either case, the company hiring the Consultant typically is not the end client but the software provider, and the employer is usually selling and installing ERP software. ERP stands for Enterprise Resource Planning software, and is not a brand name but a generic term referring to comprehensive business management software. This type of software is being implemented in virtually every industry, from health care and law practices to insurance companies to government offices, as every type of industry works through the process of using software to make operations more efficient.
When a company purchases an ERP software package, it is an enormous investment of time and money, with anticipated payoffs in efficiency. While there will definitely be technical people onsite responsible for installing and configuring the software, there is almost always the need for a Management Consultant as well. The Management Consultant is not responsible for any technical work, but only for providing functional advice on how the software can be used to automate business processes and thereby improve efficiencies. In order to provide this advice, the Management Consultant must go through the typical consulting steps outlined in the above definitions of Management Consultant, including analysis of current business processes and advice as to how they can be improved and streamlined through use of the software.
These cases can be difficult to get approved, because it has to be made clear to the officer that although the person is involved with a software implementation, he is not responsible for any technical work. I have gotten many, many cases like this approved, and it helps that the Management Consultants who work in this field typically do not have any IT-related background. They often have liberal arts degrees (their trade is, after all, analysis and communication), and their prior work experience is often in the field related to the consulting agreement. For example, if they are working for a company that markets software to the insurance industry, their prior experience may have been working as an insurance broker. These people know the business environment; they are not software experts. They just know how the software can make that business environment better.