B-1 Visitors for Business
Computer professionals who entered the United States under B-1 status previously did so either in lieu of H-1 status or pursuant to after-sales service contracts. These two activities are briefly described below:
- Under the old INS Operations Instructions (“OI”), an alien who qualified for H-1 status could enter under B-1 where the alien was coming to the United States to perform H-1 services for which the alien would receive no salary, other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. The foreign employer required an office overseas, the employee had to be customarily employed by the foreign employer, the foreign employer had to pay the employee’s salary, and the source of the employee’s salary had to be overseas. The INS Inspectors Field Manual (“IFM”), which superseded the OIs, no longer contains such a provision. However, reference to “B-1 in lieu of H-1” still appears in the Foreign Affairs Manual (“FAM”).
- Under the OIs, an alien coming to the United States to install, service or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services could enter the United States under B-1, where the contract of sale specifically required the seller to provide such services or training, the alien possessed specialized knowledge essential to the seller’s contractual obligation and the alien received no remuneration from a U.S. source. Although the OIs also required that such a trip take place within the first year following the purchase, Canadians entering in B-1 status pursuant to Appendix 1603.A.1 of NAFTA could still enter for the life of the warranty or service agreement. The IFM now contains a provision similar to the old OI but the requirement that travel take place within the first year following the purchase has been omitted. A similar provision also appears in the FAM.
For further information, please refer to the general B-1 article, which is available here.
The TN category arises from the North American Free Trade Agreement (the “NAFTA.”) Only Canadian citizens are eligible; landed immigrants of Canada are not. Although Mexican nationals are also eligible for TN status, the eligibility requirements applicable thereto are very different. Mexican TNs are not discussed here.
Computer Systems Analysts
Some Canadian computer professionals will qualify as computer systems analysts under the TN category. However, in order to qualify, the proposed job duties must be shown to be those of a computer systems analyst.
The job duties of a systems analyst will vary widely. According to the Occupational Outlook Handbook(“OOH”), systems analysts define business, scientific or engineering problems and design their solutions using computers. This process may include planning and developing new computer systems or devising ways to apply existing systems to operations still completed manually or by some less efficient method. They may design entirely new systems, including hardware and software, or add a single new software application to harness more of the computer’s power.
The INS Inspectors Field Manual (“IFM”), which replaces the old INS Operations Instructions, confirms that the computer systems analyst category does not include programmers. A systems analyst is an information specialist who analyzes how data processing can be applied to the specific needs of users and who designs and implements computer-based processing systems. Systems analysts study the organization itself to identify its information needs and design computer systems which meet those needs. Although the systems analyst will do some programming, the TN category has not been expanded to include programmers.
Under Appendix 1603.D.1, a Canadian computer systems analyst must possess a Baccalaureate (bachelor) Degree or Post-Secondary Diploma and three years experience. “Post-Secondary Diploma” means a credential issued, on completion of two or more years of post-secondary education, by an accredited academic institution in Canada or the United States.
The OOH states that there is no universally accepted way to prepare for a job as a computer systems analyst because employers preferences will depend on the work being done. As an example, the OOH specifically states that an accountant may become a systems analyst specializing in accounting systems development. Consequently, it is possible to qualify as a systems analyst with a university degree or diploma outside of the computer science field, provided that the degree is relevant to the proposed position.
It is often possible for computer hardware professionals to qualify as scientific technicians in the field of engineering. Software professionals are unlikely to qualify under this category since they do not normally apply electrical engineering principles.
The IFM confirms that scientific technicians do not ordinarily require a baccalaureate degree. Supporting documents could be an attestation from the prospective U.S. employer or the Canadian employer, or other documents establishing the individual possesses the skills set forth in Appendix 1603.D.1. According to Appendix 1603.D.1, scientific technicians must possess:
- Theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and
- The ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.
Although ideally the alien will have a two year diploma in engineering technology, mere possession of an MCSE certification may be sufficient to qualify as a scientific technician in the field of engineering. However, such adjudications will be made on a case-by-case basis.
According to the IFM, scientific technician must be seeking temporary entry for work in direct support of professionals in specific fields, one of which is engineering. Although some ports of entry may be willing to approve a scientific technician case where the alien will be working in direct support of a professional having a degree in a related area other than engineering (for example, computer science), many will not. Most will require the alien to work in direct support of a professional engineer who possesses either an engineering degree or an engineering license.
TN Management Consultants
Many computer consultants will be able to qualify for TN status as management consultants. However, applications for status as a TN management consultant are carefully scrutinized since this is often the last resort for applicants who do not clearly fall within one of the other professionals listed in Appendix 1603.D.1 of NAFTA. In addition, it is perceived by the INS that many non-immigrants who are: (a) unable to seek H-1B status because the annual cap has been reached, or (b) reaching the end of their stay in H-1B or L-1 status are applying as management consultants in order to remain in the United States. Nevertheless, applying as a TN management consultant may be appropriate in certain cases.
Appendix 1603.D.1 states that a Canadian management consultant must have Baccalaureate Degree or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement.
The term “management consultant” is not defined in NAFTA, the Immigration and Nationality Act (“INA”) or Title 8 of the Code of Federal Regulations (the “INS Regulations.”) However, the OOH indicates that “both public and private organizations use consultants for a variety of reasons. Some don’t have adequate internal resources to handle a project; others rely on the consultant’s experience to determine what resources will be required – or problems encountered – if they pursue a particular course of action; while others want to get advice on how to resolve organizational problems that have already been identified or to avoid troublesome problems that could arise.” This broad definition covers a broad range of activities. However, the INS tends to adjudicate management consultant cases strictly.
For example, although the OOH also states that management consultants may assist in the implementation of their recommendations, some ports-of-entry take the position that management consultants may only advise management and may not assist in implementation, except where it is clearly incidental to his or her recommendations. This policy varies, depending upon the port-of-entry.
In addition, the IFM states that management consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. They may be salaried employees of the U.S. entities to which they are providing services only when they are not assuming existing positions or filling newly created positions. As a salaried employee of such a U.S. entity, they may only fill supernumerary temporary positions. On the other hand, if the employer is a U.S. management consulting firm, the employee may be coming temporarily to fill a permanent position. This “supernumerary” requirement limits the types of positions that will qualify for TN status. A computer consultant who will be assuming a permanent position with the entity to whom he or she will ultimately be providing services will be considered an employee rather than a management consultant.
For further information, please refer to the general TN article, which is available here.
H-1B Specialty Occupations
Certain computer professionals in Canada may not qualify under TN status because they are not Canadian citizens. The H-1B category does not require Canadian citizenship. Consequently, citizens of other countries such as Indian and China will qualify for H-1B status, regardless of their status in Canada.
Others may lack specific education and/or experience requirements (contained in Appendix 1603.D.1) to qualify under TN status, since equivalency is not permitted in TN cases. However, equivalency is permitted for H-1B cases. Consequently, these workers may still qualify as specialty occupation workers under H-1B status, provided that they can establish work experience equivalency to the required bachelor degree.
For the purposes of H-1B eligibility, the term “specialty occupation” is defined in INA as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. If the worker does not have a bachelor degree, the INS expects at least three years of relevant work experience in progressively responsible positions for every year that he or she lacks towards a four year university degree.
Occupations such as software engineers, systems analysts and computer consultants would likely be considered specialty occupations. Unfortunately, the H-1B category is subject to several disadvantages, including prevailing wage requirements and an annual cap on the number of H-1B’s that may be issued in a given fiscal year.
For further information, please refer to the article on H-1B status, which is available here.
E-1/E-2 Essential Skills Workers
Computer professionals may qualify as essential skills workers under the E visa category, provided that they are otherwise eligible for such status. The E visa category does not require specific education in the field as a prerequisite to eligibility as an L-1 worker.
One disadvantage is there must be a bilateral investment treaty or treaty of commerce and navigation in place between the U.S. and the foreign country. Another is that the essential skills worker and the treaty business must have the same nationality. Finally, many (but not all) essential skills workers are only permitted to enter on a short-term basis. A distinction is made between short-term and long-term essential skills workers.
Short-Term Essential Skills Workers
This type involves situations in which the treaty business will be expected to train U.S. workers in a reasonably short time to replace the following essential skills employees. These may involve the following employees:
- Essential skills employees needed in the start-up of an enterprise (usually for not more than a year or two) because of their familiarity with the overseas operation rather than their specialized skills; and
- Highly trained and specially qualified technicians needed to train or supervise personnel in manufacturing, maintenance and repair functions, even though they may also perform some manual duties.
As such workers are essential only because U.S. personnel cannot be found, the employer must be prepared to show both that qualified personnel are not available locally and that it is training U.S. residents as replacements.
Long-Term Essential Skills Workers
This type involves essential employees who qualify for E classification on the basis of a long-term or continuing need, since some skills will be essential for as long as the business is operating. Long-term essentiality might be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.
There is no requirement that the employer train this type of essential employee. There is an implicit requirement to train only if the skills are of the nature conducive to transfer to the local labor market; some skills are not readily transferred, and therefore remain essential to the efficient operation of the business for an indefinite period of time.
For further information, please refer to the general article on treaty traders and investors, which is available here.
L-1 Specialized Knowledge Workers
Computer professionals may also qualify as specialized knowledge workers under the L-1 category, provided that they are otherwise eligible for such status. Like the E visa, the L-1 category does not require specific education in the field as a prerequisite to eligibility as a specialized knowledge worker. Further, Canadian L-1 non-immigrants may apply at a port of entry. However, the alien worker must have worked in a specialized knowledge capacity for a foreign parent, branch, affiliate or subsidiary for at least one year within the previous three years. The alien worker must also be seeking entry to render services in a specialized knowledge capacity to a branch of the same parent, branch, affiliate or subsidiary thereof.