[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Rules and Regulations]
[Pages 1331-1335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-601]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 212, 214, 235, and 274a
[INS No. 1611-93]
RIN 1115-AB72
Temporary Entry of Business Persons Under the North American Free
Trade Agreement (NAFTA)
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: 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 in all three countries.
EFFECTIVE DATE: 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.
SUPPLEMENTARY INFORMATION: 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
[[Page 1332]]
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
professional 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 Federal Register 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 1603.D.1, the
Service will notify the public by publishing a notice of proposed
rulemaking in the Federal Register.
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 Mexican 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 the 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 these 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 the 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.
[[Page 1333]]
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 existing law.
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 and 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 employment-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 Department 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 classification, 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 process, 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 bona 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
[[Page 1334]]
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. Moreover, 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:
Authority: 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:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(e) * * *
(22) 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:
(1) The settlement of any labor dispute that is in progress at the
place or intended place of employment, or
(2) 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 or 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.
[[Page 1335]]
(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:
Sec. 214.6 Canadian and Mexican citizens seeking temporary entry to
engage in business activities at a professional level.
* * * * *
(b) Definitions. 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.
Business person, 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.
Temporary entry, 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.
* * * * *
Dated: August 13, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-601 Filed 1-8-98; 8:45 am]
BILLING CODE 4410-10-M
