NAFTA’s TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. One TN-qualifying profession is that of an “economist,” which requires a baccalaureate or licenciatura degree. NAFTA does not provide a specific description of what an economist does, what professions would be considered economists, or the functions of an economist to qualify.

This failure has resulted in inconsistent adjudications, RFEs issued by USCIS even for extensions of TN status, and individuals questioned at the border.

To address these inconsistencies, USCIS issued a policy memorandum explaining that TN economists “must engage in activities consistent with the profession of economist.” USCIS noted that, based on the Standard Occupational Classification System (“SOC”) from the Bureau of Labor Statistics (“BLS”), economists are individuals primarily in market research analyst, marketing specialist, and financial analyst positions that did not qualify as “economists” under NAFTA.

USCIS identifies two broad focus areas of economists: (1) microeconomics (the analysis of “the behavior of individuals and firms with the aim of understanding the relationships between supply and demand”) and (2) macroeconomics (the analysis of “aggregated indicators to determine how different sectors of the economy relate to each other”). USCIS stated that some financial analysts might be recognized as “economists” if they are primarily performing economist duties specializing in microeconomic and macroeconomic analysis. These include:

• Applying economic analysis to fields such as labor, international trade, development, econometrics, education, health, and industrial organization, among others;
• Conducting research, preparing reports, or formulating plans to address economic problems related to production and distributions of goods and services or monetary and fiscal policy; and/or
• Collecting and processing economic and statistical data using sampling techniques and econometric methods.

Financial analysts who “primarily conduct quantitative analyses of information affecting investment programs of public or private institutions” would not qualify, according to the USCIS memorandum.

Moreover, USCIS in the issuance of RFEs has been relying on the BLS Occupational Outlook Handbook (“OOH”) to question the qualifications of some applicants who do not have advanced degrees. The OOH states, “Most economists need a master’s degree or Ph.D. However, some entry-level jobs – primarily in government – are available for workers with a bachelor’s degree.” This is contrary to NAFTA Appendix 1603.D.1. of Annex 1603, which states that an “economist” must have a baccalaureate or a licenciatura degree.

Accordingly, it could be argued that the USCIS memorandum’s “new” definitions and eligibility requirements are not consistent with the NAFTA Treaty. However, the USCIS memorandum will be applied by USCIS and CBP officers.

Employers with individuals traveling in TN status whose positions could be considered to be in marketing or financial analysis categories must be careful of the travel risks. Whether other visa options that would be more viable in this new environment also should be explored.