USCIS Issues New Guidance on Qualifying for TN Status as an Economist

 

Introduction

On November 20, 2017, the United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum (PM)-602-0153, titled “TN Nonimmigrant Economists Are Defined by Qualifying Business Activity” [PDF version]. The memorandum, which constitutes binding policy guidance for all USCIS employees, “clarifies that for an applicant to qualify for TN status based on work in the profession of economist, the applicant must engage in activities consistent with the profession of economist.” Accordingly, the memorandum lists activities that are not consistent with the profession of economists — such as activities performed by financial analysts, market research analysts, and marketing specialists — that would not qualify an individual to qualify for TN status based on work in the profession of economist. In this article, we will examine the new rules for TN economists.

To learn about TN NAFTA professionals in general, please see our full article on the category [see category].

NAFTA Professional

Background: TN Nonimmigrant Category and TN Economists

The TN nonimmigrant category allows qualified citizens of Canada and Mexico “to seek temporary entry into the United States to engage in business activities at a professional level.” The list of activities that a TN NAFTA professional may engage in are codified at 8 C.F.R. 214.6(c) [PDF version].

8 C.F.R 214.6(c) lists “economist” among the professional activities that an individual may engage in on TN status. However, the only requirements that 8 C.F.R. 214.6(c) lists for “economist” are a “baccalaureate or licenciatura degree.”

The USCIS stated in the memorandum that “[t]he lack of description [for TN economists] has raised questions and led to inconsistent adjudications about whether certain types of analysts, and persons engaged in other occupations, such as, but not limited to, those performed by financial analysts, market research analysts, and marketing specialists” may qualify for status as TN economists.

New Policy

To start, the memorandum explained that “[w]hether a particular job is that of an economist is determined by the primary activity, not by the job title.” In short, this means that seeking TN status for a position called “economist” is not sufficient. The primary activity of the position must be consistent with the profession of economist.

The memo stated that a TN economist cannot primarily perform the activities of other occupations. Some examples of activities of other occupations are “those performed by financial analysts, market research analysts, and marketing specialists.”

The memorandum explained that economists generally specialize in either microeconomics or macroeconomics. To this effect, the memorandum cited to the Department of Labor's (DOL's) Occupational Outlook Handbook [PDF version]. The DHS added that in addition to the two broad focus areas of microeconomics and macroeconomics, economists my also apply their economic analysis to a variety of fields, including “labor, international trade, development, econometrics, education, health, [] industrial organization, and other fields.” The Standard Occupational Classification (SOC) “defines economists as conducting research, preparing reports, or formulating plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy.” The SOC states that economists “may collect and process economic and statistical data using sampling techniques and econometric methods.” The DHS found it significant that the SOC definition of “economist” specifically excludes the occupations of market research analyst and marketing specialist.

The USCIS clarified that “persons engaged primarily in activities associated with market research analysts and marketing specialists, as described in the SOC and … OOH, do not qualify for the TN nonimmigrant classification as an economist.”

Regarding the occupation of “financial analyst,” the USCIS recognized that the professions of economist and financial analyst are related. However, the USCIS stated that “financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions.” Furthermore, the SOC lists “economist” and “financial analyst” as distinct occupations. Accordingly, the USCIS clarified “that economists and financial analysts are two separate occupations for the purposes of qualifying for TN status [under] NAFTA.”

Conclusion

In this memorandum, the USCIS adopted a definition of the occupation of “economist” for TN NAFTA professional purposes that is consistent with the SOC and OOH. In addition to limiting activities that may qualify a national of Canada or Mexico as a TN economist, the memorandum makes clear that a TN economist must be primarily engaged in activities performed by an economist. Whether a specific petition for a TN economist will pass muster depends on the specific facts of an individual case. An experienced immigration attorney may provide case-specific analysis and guidance.