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Temporary Entry of Business Persons Under the North American Free Trade Agreement (NAFTA) [63 FR 1331] [FR 1-98]
FEDERAL REGISTER CITE:
63 FR 1331
DATE OF PUBLICATION:
January 9, 1998
BILLING CODE 4410-10-M
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 212, 214, 235, and 274a
[INS No. 1611-93]
Temporary Entry of Business Persons Under the North American Free
Trade Agreement (NAFTA)
Immigration and Naturalization Service, Justice.
This rule implements provisions of the North American Free Trade Agreement (NAFTA) by amending the Immigration and Naturalization Service (Service) regulations establishing procedures for the temporary entry of Canadian and Mexican citizen business persons into the United States. This rule will facilitate temporary entry on a reciprocal basis among the United States, Canada, and Mexico, while recognizing the continued need to ensure border security and to protect indigenous labor and permanent employment i
n all three countries.
January 9, 1998.
FOR FURTHER INFORMATION CONTACT:
Helen V. deThomas, Adjudications Officer, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.
On December 17, 1992, the Presidents of the United States and Mexico and the Prime Minister of Canada entered into the North American Free Trade Agreement (NAFTA). Implementation of this agreement has been provided for by the North American Free Trade Agreement Implementation Act (NAFTA Implementation Act), Public Law 103-182. The NAFTA Implementation Act was signed into law by the President of the United States on December 8, 1993. The NAFTA entered into force on January 1, 1994.
This final rule pertains to Canadian and Mexican citizen temporary visitors for business seeking classification under section 101(a)(15)(B) of the Immigration and Nationality Act (Act), to Canadian and Mexican citizen treaty traders and treaty investors seeking classification under section 101(a)(15)(E) of the Act, to Canadian and Mexican citizen intracompany transferees seeking classification under section 101(a)(15)(L) of the Act, and to Canadian and Mexican citizens engaging in activities at a professio
nal level seeking classification under section 214(e) of the Act, as amended by section 341(b) of the NAFTA Implementation Act.
This rule sets forth the procedures for the temporary entry of Canadian and Mexican citizen business persons as provided in Chapter 16 of the NAFTA and Subtitle D of Title III of the NAFTA Implementation Act. Chapter 16 of the NAFTA, Subtitle D of Title III of the NAFTA Implementation Act, and this rule reflect the special trading relationship now established among the United States, Canada, and Mexico, and recognize the desirability of facilitating temporary entry on a reciprocal basis and of establishing
transparent criteria and procedures for such temporary entry. At the same time, full recognition is given to the continued need to ensure border security while protecting the domestic labor force and permanent employment in all three countries.
On December 30, 1993, the Service published an interim rule with request for comments in the
at 58 FR 69205, implementing the NAFTA. Interested persons were invited to submit comments to the Service on or before February 28, 1994.
Discussion of Comments
The Service received comments from three commenters relating to the interim rule. One of the commenters requested that additional medical occupations be added to the list of professions contained in Appendix 1603.D.1. Although the Service appreciates this comment, this final rule is not the proper forum in which to discuss whether an occupation should be added to the list of professions contained in Appendix 1603.D.1. The determination as to whether an occupation should be added to Appendix 1603.D.1 is made
in a separate procedure apart from this final rule and involves consultations, on the domestic side, with other government agencies belonging to the NAFTA Temporary Entry Working Group. See Article 1605 of the NAFTA. In addition, the process involves consultation with representatives of the Canadian and Mexican governments and appropriate U.S. Congressional subcommittees. See NAFTA Implementation Act Statement of Administrative Action at page 183. If a decision is made to add occupations to the Appendix 1
603.D.1, the Service will notify the public by publishing a notice of proposed rulemaking in the
The second commenter, the U.S. Coast Guard, recommended that a provision for the temporary entry of spill response specialists and laborers be added as a new class of business activity under 8 CFR 214.2(b)(4)(i). Such a provision, the Coast Guard stated, would allow pollution response workers lawful entry to the United States in conjunction with an actual response or response preparedness exercise under the Joint Marine Pollution Contingency Plans in effect among the NAFTA parties. The Service's regulations
at 8 CFR 214.2(b)(4) provide for the entry in B-1 nonimmigrant classification of citizens of Mexico and Canada pursuant to Section A of Annex 1603 of the NAFTA. Although Appendix 1603.A.1 to Annex 1603 of the NAFTA provides a detailed list of specific types of activities in which a B-1 business visitor seeking entry under the NAFTA may engage, it is not intended to be exhaustive. As stated in the existing provision already available at 8 CFR 214.2(b)(4)(ii), nothing precludes a citizen of Mexico or Canada
from seeking entry to engage in business activities which are not included within Appendix 1603.A.1, provided he or she meets all requirements for entry as a business visitor under section 101(a)(15)(B) of the Act. Whether a particular type of activity falls within this provision, however, will depend on the specific facts, and will require an analysis of the precise activities the alien intends to perform in this country. For this reason, the Service cannot determine in advance whether a Canadian or Mexica
n citizen wishing to engage in the activities described by the commenter would be consistent with section 101(a)(15)(B) of the Act. Accordingly, the Service will not adopt the commenter's suggestion because no special amendment is needed to 8 CFR 214.2(b)(4) for entry in B-1 nonimmigrant classification.
The third commenter was the American Immigration Lawyers' Association (AILA), a bar association representing over 3,600 lawyers and law professors practicing and teaching in the field of immigration and nationality law. The following discussion addresses the six issues raised by AILA in its comments and provides the Service's position on those issues. The discussion also indicates the revisions adopted in the final rule based on the comments.
Effect of a Strike on a Treaty Trader or Investor Admitted Under the Provisions of the NAFTA--8 CFR 214.2(e)(22)
AILA suggested that the Service adopt regulatory language which would provide E nonimmigrant aliens with the same safeguards which both the L-1 and TN nonimmigrant aliens enjoy regarding labor disputes or work stoppages. Specifically, AILA noted that the regulations relating to the L-1 and TN nonimmigrant classifications state that the alien's participation in a labor dispute or work stoppage is not violative of his or her nonimmigrant classification. The Service agrees with this suggestion and will amend t
he language at 8 CFR 214.2(e)(22) to reflect that E nonimmigrants admitted under the NAFTA are subject to the same labor dispute and work stoppage rules as TN and NAFTA L-1 nonimmigrants.
Engage in Business Activities at a Professional Level--8 CFR 214.6(b)
AILA suggested that the definition of the term "engage in business activities at a professional level" should be amended to allow self-employed individuals (that is, individuals who are self-employed in Canada or Mexico) to obtain TN classification even if the alien will be employed by a U.S. corporation which is wholly-owned by the alien, "where such employment is not for self-subsistence and a true employment situation exists." AILA argued that the NAFTA does not preclude such a modification and that thes
e aliens were admitted to the United States in the past under the United States-Canada Free-Trade Agreement (CFTA).
The Service cannot adopt this comment because its adoption would clearly conflict with the intent of the NAFTA Implementation Act. Annex 1603, section D, provides for the entry of a citizen of a Party country seeking to render professional-level services for an entity in another Party country. As stated in the NAFTA Implementation Act Statement of Administrative Action at page 178, "Section D of Annex 1603 does not authorize a professional to establish a business or practice in the United States in which th
e professional will be self-employed." It is the position of the Service that a professional may not avoid the bar to self-employment merely by adopting the corporate form. The test in all cases is whether the alien, in substance, is seeking admission for the purpose of establishing, or performing work for a business or practice that the alien has already established, in which he or she will be self-employed.
It should be noted that the bar on establishment of a business or practice in which the Canadian or Mexican citizen will be self-employed is in no way intended to limit a Canadian or Mexican citizen who is self-employed abroad from entering this country in, changing status to, or extending nonimmigrant stay in, TN classification pursuant to a pre-arranged agreement with a third party that is not substantively the same as, or de facto controlled by, the alien. On the other hand, a Canadian or Mexican citizen
is precluded from entering this country in TN classification for the purpose of rendering pre-arranged services for a U.S. corporation or entity of which he or she is the sole or controlling shareholder or owner.
It should also be noted that, although the issue of self-employment was never specifically addressed under the regulations promulgated by the Service pursuant to the CFTA Implementation Act, the bar on establishment of a business or practice in which the professional will be self-employed is consistent with the intent of the United States and Canada in entering into the CFTA. Since entry into NAFTA was not intended to substantively change the treatment of professionals, this explicit bar merely clarifies ex
Finally, the Service notes that, under Chapter 16 of the NAFTA, Canadian or Mexican citizens seeking to engage in self-employment in trade or investment activities in this country may seek classification under section 101(a)(15)(E) of the Act. See NAFTA Implementation Act Statement of Administrative Action at page 178. In this regard, Annex 1603, section B, which deals with "traders and investors," establishes the appropriate category of temporary entry for a citizen of a Party country seeking to develop an
d direct investment operations in another Party country.
Temporary Entry--8 CFR 214.6(b)
AILA suggested that the Service apply the concept of "dual intent" to the TN classification to accommodate business persons who may be adversely affected by the filing of a permanent residence petition or an application for a labor certification in their behalf. The concept of "dual intent" allows certain nonimmigrant aliens to retain nonimmigrant status even where the alien may have made application for permanent residence or where an employer has filed an application for a labor certification or employmen
t-based petition in his or her behalf.
This suggestion cannot be adopted because it is clearly inconsistent with Article 1608 of the NAFTA. For purpose of Chapter 16 of the NAFTA, Article 1608 of the NAFTA defines "temporary entry" specifically as "entry into the territory of a Party by a business person of another Party
without the intent to establish permanent residence
." (Emphasis added)
In order to further explain the temporary nature of a TN alien's entry into the United States, the definition of "temporary entry" has been clarified in the final rule providing that while there is no specific limit on the total period of time a citizen of Canada or Mexico may remain in TN status, the TN classification is nevertheless for persons seeking temporary entry without the intent to establish permanent residence. This clarified definition of "temporary entry" comports with that used by the Departme
nt of State and the intent of the Article 1608 of the NAFTA. See 22 CFR 41.59(c) (December 28, 1993).
Licensure for TN Classification--8 CFR 214.6(d)(2)(iv)
AILA stated that it appears from the language of the interim regulation that the licensure requirements at 8 CFR 214.6(d)(2)(iv) only apply to Mexican citizens and not to Canadian citizens since these requirements are listed under the heading "Classification of citizens of Mexico as TN professionals under the NAFTA." AILA stated that in fairness, the Service should apply equal requirements to both Canadian and Mexican citizens, and that, therefore, the Service should amend the interim rule accordingly. The
Service agrees with the AILA that the licensure requirements for Canadian and Mexican citizens for purposes of temporary entry under the NAFTA should be, and notes that the requirements are, in fact, the same. In both instances, the Canadian or Mexico prospective TN professional must be in possession of the appropriate license, if required by law, to perform the duties of the profession in the location where the alien will be employed. Compare 8 CFR 214.6(d)(2) with 214.6(e)(3)(ii). The Service's discussion
of the licensure requirements for Mexican citizens in a separate regulatory provision than those for Canadian citizens should in no way be interpreted to imply that there exist different licensure requirements for these two groups of person. The Service discusses classification of Mexican citizens as TN professionals separately from that of their Canadian counterparts for clarity of presentation and to reflect the fact that, at this time, a petition is required for Mexican citizens seeking TN classificatio
n, while no such requirement exists for Canadian citizens. See NAFTA Annex 1603(D)(5)(b); NAFTA Appendix 1603.D.4. Accordingly, Mexican citizen professionals must present evidence of licensure, if necessary to perform the intended duties of the profession, at a different stage of the process than their Canadian counterparts. For these reasons, the Service will not adopt AILA's suggestion.
Extension of Stay--8 CFR 214.6(h)(1) and (2)
The regulation requires the extensions of stay for TN nonimmigrant aliens be filed on Form I-129 at the Nebraska Service Center. AILA suggested that this provision be amended to allow Ports-of-Entry to adjudicate extensions of stay. The Service will not adopt this suggestion because the Service has been moving towards the centralized adjudication of all petitions and applications at service centers in order to better serve the public. Such centralization will ensure consistency in the decision-making proces
s, and will ensure that all applications and petitions are adjudicated in a timely fashion throughout the country. Although the Service realizes that some aliens may be required to travel and leave the country on short notice, proper planning by the alien's employer should minimize disruption of the alien's employment. In addition, the Service has established a procedure at the Nebraska Center to expedite the processing of applications and petitions in those situations where the petitioner establishes a bon
a fide need for such action. Ports-of-Entry, therefore, will remain responsible for processing applicants for TN admission to the United States, but not for processing applications for extensions of stay.
Representation and Appearance--8 CFR Part 292
AILA suggested that 8 CFR 214.6 should be amended to specify that the provisions of 8 CFR part 292, which pertain to the representation of aliens who are in Service proceedings, apply to foreign consultants who enter the United States under the NAFTA. AILA stated that such a change "would enhance alien consumer protection from unscrupulous consultants who might seek to take advantage of aliens under the new TN program." The Service will not adopt this suggestion because 8 CFR part 292 clearly applies to all
of Title 8 of the Code of Federal Regulations, including professionals admitted pursuant to 8 CFR 214.6, who may represent persons in proceedings before the Service. The Service believes that the provisions at 8 CFR part 292 are fully adequate to protect aliens from the actions of any unscrupulous legal consultants without needing to restate them in 8 CFR 214.6.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that the rule will not have a significant economic impact on a substantial number of small entities. This certification is made in light of the fact that this regulation substantially retained the standards for the admission of Canadians formerly provided for under the CFTA and those set forth in the interim rule. More
over, under this regulation, only 5,500 petitions may initially be approved annually in behalf of citizens of Mexico seeking classification as TN professionals. Additionally, based on the Service's experience to date, it is anticipated that only a limited number of citizens of Mexico will seek classification as treaty traders and investors pursuant to this regulation.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation adopted herein will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This final rule meets the applicable standards set forth in sections 3(a) and 3(b) of E.O. 12988.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Privacy, Reporting and record keeping requirements, Surety bonds.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign Officials, Health professions, Reporting and recordkeeping requirements, Students.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Accordingly, the interim rule amending 8 CFR parts 103, 212, 214, 235, 274a, which was published at 58 FR 69205-69219 on December 30, 1993, is adopted as a final rule with the following changes:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as follows:
: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282; 8 CFR part 2.
2. Section 214.2 is amended by revising paragraph (e)(22), to read as follows:
Special requirements for admission, extension, and maintenance of status.
(e) * * *
Denial of treaty trader or treaty investor status to citizens of Canada or Mexico in the case of certain labor disputes
. (i) A citizen of Canada or Mexico may be denied E treaty trader or treaty investor status as described in section 101(a)(15)(E) of the Act and section B of Annex 1603 of the NAFTA if:
(A) The Secretary of Labor certifies to or otherwise informs the Commissioner that a strike or other labor dispute involving a work stoppage of workers in the alien's occupational classification is in progress at the place where the alien is or intends to be employed; and
(B) Temporary entry of that alien may affect adversely either:
) The settlement of any labor dispute that is in progress at the place or intended place of employment, or
) The employment of any person who is involved in such dispute.
(ii) If the alien has already commenced employment in the United States and is participating in a strike or other labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Secretary of Labor, or whether the Service has been otherwise informed that such a strike or labor dispute is in progress, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike o
r other labor dispute involving a work stoppage of workers, but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act, and regulations promulgated in the same manner as all other E nonimmigrants; and
(B) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers.
(iii) Although participation by an E nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for deportation, any alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to deportation.
(iv) If there is a strike or other labor dispute involving a work stoppage of workers in progress, but such strike or other labor dispute is not certified under paragraph (e)(22)(i) of this section, or the Service has not otherwise been informed by the Secretary that such a strike or labor dispute is in progress, the Commissioner shall not deny entry to an applicant for E status.
3. Section 214.6 is amended by revising paragraph (b) to read as follows:
Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level.
. As used in this section, the terms:
Business activities at a professional level
means those undertakings which require that, for successful completion, the individual has a 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.
, as defined in the NAFTA, means a citizen of Canada or Mexico who is engaged in the trade of goods, the provision of services, or the conduct of investment activities.
Engage in business activities at a professional level
means the performance of prearranged business activities for a United States entity, including an individual. It does not authorize the establishment of a business or practice in the United States in which the professional will be, in substance, self-employed. A professional will be deemed to be self-employed if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner.
, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time
and that he or she will depart upon completion of the assignment.
* * * * *
August 13, 1997
Commissioner,Immigration and Naturalization Service.