** LEGAL UPDATE **
In a November 20, 2017 Policy Memorandum, United States Citizenship and Immigration Services (USCIS) announced that it is narrowing its interpretation of the economist category for professionals to enter the United States under the North American Free Trade Agreement (NAFTA).
NAFTA allows for the movement of professionals among Canada, the United States, and Mexico if they will work in any one of the designated categories and have the corresponding, required qualifications, which typically are a relevant university degree.
Up to now, there has been some flexibility to allow professionals working as market research analysts, marketing specialists, or financial analysts to qualify for TN work authorization under the economist category. There are not separate categories for those occupations.
The new Policy Memo effectively ends that flexibility. Anyone applying under NAFTA as an economist now must demonstrate that the proposed work in the United States will involve traditional micro- or macroeconomics theories or analyses of other fields such as labor, international trade, development, econometrics, education, health, industrial organization, and related areas.
The Policy Memo further explains that the Department of Labor (DOL)'s definition of an economist specifically excludes market research analysts and marketing specialists. Similarly, the DOL differentiates economists from financial analysts based upon the broader approach of economists and the narrower approach of financial analysts. While economists examine issues of wider relevance, financial analysts focus on issues relevant to one or a few organizations. Therefore, in relying on the DOL definitions, USCIS determined that it now intends to restrict the economist category for only pure economics jobs.
The only uncertainty as of late December 2017 is whether U.S. Customs and Border Protection (CBP) will apply this new policy for TN applications at the U.S.-Canada border or preflight inspection points in Canada, and whether the U.S. State Department will apply the policy for Mexicans applying for TN visas at U.S. consulates in Mexico. Because the Policy Memorandum is from USCIS, the other two agencies are not bound by it. Nonetheless, the current administration’s general anti-immigration stance suggests the other agencies will follow suit in restricting the economist category.
The practical implication for employers is that they now will need to find other visa options, such as H-1B specialty occupation or O-1 individual of extraordinary ability visas, to hire market research analysts, marketing specialists, or financial analysts.
Effective Date: November 20, 2017