\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2004 \ FEDERAL REGISTER INTERIM REGULATIONS - 2004 \ Eliminating the Numerical Cap on Mexican TN Nonimmigrants [69 FR 11287] [FR 7-04] \ Good Cause Exception
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Good Cause Exception
The Department's implementation of this rule as an interim rule, with provisions for post-promulgation public comments, is based on the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reasons and necessity for the promulgation of this rule on January 1, 2004, are as follows: This rule is necessary to ensure that the Department is in compliance with the requirements placed upon the signatory nations that are parties to the NAFTA. As previously noted in this interim rule, the NAFTA require
s the lifting of the annual cap of 5,500 Mexican TN professionals no longer than 10 years after the date the NAFTA became effective. Therefore, regardless of whether the Department promulgates regulations, the annual cap of Mexican TN professionals will sunset on January 1, 2004. By eliminating the cap and petition requirements now, the Executive Branch of the Federal Government will be in compliance with this requirement made by the NAFTA.
Adoption of this rule as an interim rule acknowledges the importance of equal treatment for both the Canadian and Mexican governments. In addition, the provisions of this interim rule will not have a negative affect on any qualified Mexican citizen seeking TN status, nor will it affect the qualified United States employer. The rule will eliminate one portion of the administrative process by which a qualified Mexican citizen may obtain TN status.
Accordingly, the Department believes that advance public notice and comment of this regulation is impracticable and contrary to the public interest. Therefore, there is good cause under 5 U.S.C. 553(b) and (d) for dispensing with the requirements of prior notice and to make this rule effective on January 1, 2004.
Regulatory Flexibility Act
I have reviewed this rule, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and, by approving it, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects only TN nonimmigrant individuals. These nonimmigrants are not considered small entities as that term is defined in 5 U.S.C. 601(6). This rule also affects U.S. employers of TN nonimmigrants, but does not create any new economic or procedural burdens for those entit
ies. Although some petitioning businesses may be considered small businesses, this rule merely simplifies applicable procedures and eliminates certain filing requirements that in all likelihood will have a positive impact.
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 considered by the Department of Homeland Security to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review.
In particular, the Department has assessed both the costs and benefits of this rule as required by Executive Order 12866, section 1(b)(6) and has made a reasoned determination that the benefits of this regulation justify its costs. Briefly, that assessment is as follows. This rule eliminates the numerical cap on TN admissions and eliminates certain filing requirements. This will eliminate the time and expense associated with these forms, and will also reduce the processing and waiting times associated with
obtaining TN classification.
Executive Order 13132
This rule 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 section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or recordkeeping requirements inherent in a rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Reporting and recordkeeping requirements.
Accordingly, part 214 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as follows:
8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; § 643, Pub. L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2.
2. Section 214.6 is amended by:
Revising the section heading;
Revising paragraph (d);
Revising paragraph (e);
Removing and reserving paragraph (f);
Revising paragraph (h);
Revising paragraph (i); and
Removing paragraph (l).
The revisions read as follows:
§ 214.6 Citizens of Canada or Mexico seeking temporary entry under NAFTA to engage in business activities at a professional level.
* * * * *
Classification of citizens of Canada or Mexico as TN professionals under the NAFTA
Citizens of Mexico
. A citizen of Mexico who seeks temporary entry as a business person to engage in business activities at a professional level may be admitted to the United States in accordance with NAFTA upon presentation of a valid passport and valid TN nonimmigrant visa at a United States Class A port-of-entry, at a United States airport handling international traffic, or at a United States pre-clearance/pre-flight station.
Citizens of Canada
. A citizen of Canada seeking temporary entry as a business person to engage in business activities at a professional level shall make application for admission with a Department officer at the United States Class A port-of-entry, at a United States airport handling international traffic, or at a United States pre-clearance/pre-flight station.
. Upon application for a visa at a United States consular office, or, in the case of a citizen of Canada making application for admission at a port-of-entry, an applicant under this section shall present the following:
Proof of citizenship
. A Mexican citizen applying for admission as a TN nonimmigrant must establish such citizenship by presenting a valid passport. Canadian citizens, while not required to present a valid passport for admission unless traveling from outside the Western hemisphere, must establish Canadian citizenship.
Documentation demonstrating engagement in business activities at a professional level and demonstrating professional qualifications
. The applicant must present documentation sufficient to satisfy the consular officer (in the case of a Mexican citizen) or the Department officer (in the case of a Canadian citizen) that the applicant is seeking entry to the United States to engage in business activities for a United States employer(s) or entity(ies) at a professional level, and that the applicant meets the criteria to perform at such a professional level. This documentation may be in the form of a letter from the prospective employer(s) i
n the United States or from the foreign employer, and must be supported by diplomas, degrees or membership in a professional organization. Degrees received by the applicant from an educational institution not located within Canada, Mexico, or the United States must be accompanied by an evaluation by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials. The documentation shall fully affirm:
(A) The Appendix 1603.D.1 profession of the applicant;
(B) A description of the professional activities, including a brief summary of daily job duties, if appropriate, in which the applicant will engage in for the United States employer/entity;
(C) The anticipated length of stay;
(D The educational qualifications or appropriate credentials which demonstrate that the Canadian or Mexican citizen has professional level status; and
(E) The arrangements for remuneration for services to be rendered.
Procedures for admission for a citizen of Canada or Mexico
--A citizen of Canada or Mexico who qualifies for admission under this section shall be provided confirming documentation (Form I-94) and shall be admitted under the classification symbol TN for a period not to exceed one year. Form I-94 shall bear the legend “multiple entry”. The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the United States pursuant to the terms and conditions of the NAFTA. Upon remittance of the prescribed fee, the TN applicant for admis
sion shall be provided a Department-issued receipt (Form G-211, Form G-711, or Form I-797).
* * * * *
Extension of stay
Filing at the service center
. The United States employer of a citizen of Canada or Mexico in TN status or a United States entity, in the case of a citizen of Canada or Mexico in TN status who has a foreign employer, may request an extension of stay by filing Form I-129 with the prescribed fee noted at 8 CFR 103.7(b)(1), with the Nebraska Service Center. The beneficiary must be physically present in the United States at the time of the filing of the extension of stay. If the alien is required to leave the United States for any reasons
while the extension request is pending, the petitioner, in the case of a Mexican citizen TN beneficiary, may request the director to cable notification of approval to the consular office abroad where the Mexican TN beneficiary will apply for a visa. In the case of a Canadian TN beneficiary, the petitioner may request the director to cable notification of approval of the application to the port-of-entry where the Canadian TN beneficiary will apply for admission to the United States. If approved, an extension
of stay may be authorized for up to one year. There is no specific limit on the total period of time an alien may remain in TN status.
Readmission at the border
. Nothing in paragraph (h)(1) of this section shall preclude a citizen of Canada or Mexico who has previously been in the United States in TN status from applying for admission for a period of time that extends beyond the date of his or her original term of admission at any United States port-of-entry. The application for admission shall be supported by a new letter from the United States employer or the foreign employer, in the case of a citizen of Canada who is providing prearranged services to a United S
tates entity, which meets the requirements of paragraph (e) of this section. The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian citizens upon admission to the United states pursuant to the terms and conditions of the NAFTA. Citizens of Mexico must present a valid passport and nonimmigrant TN visa when applying for readmission, as outlined in paragraph (d)(1) of this section.
Request for change or addition of United States employers
Filing at the service center
. A citizen of Canada or Mexico admitted into the United States as a TN nonimmigrant who seeks to change or add a United States employer during the period of admission must have the new employer file a Form I-129 with appropriate supporting documentation, including a letter from the new employer describing the services to be performed, the time needed to render such services, and the terms of remuneration for services. Employment with a different or with an additional employer is not authorized prior to Dep
artment approval of the request.
Readmission at the border
. Nothing in paragraph (i)(1) of those section precludes a citizen of Canada or Mexico from applying for readmission to the United States for the purpose of presenting documentation from a different or additional United States or foreign employer. Such documentation shall meet the requirements prescribed in paragraph (d) of this section. The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian citizens upon admission to the United States pursuant to the terms and conditions of the NAFTA. Cit
izens of Mexico may present documentation from a different or additional United States or foreign employer to a consular officer as evidence in support of a new nonimmigrant TN visa application.
(3) No action shall be required on the part of a citizen of Canada or Mexico in TN status who is transferred to another location by the same United States employer to perform the same services. Such an acceptable transfer would be to a branch or office of the employer. In a case of a transfer to a separately incorporated subsidiary or affiliate, the requirements of paragraphs (i)(1) and (i)(2) of this section will apply.
March 3, 2004
Secretary of Homeland Security.