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[Federal Register: March 10, 2004 (Volume 69, Number 47)]
[Rules and Regulations]
[Page 11287-11290]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10mr04-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
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[[Page 11287]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2266-03]
RIN 1615-AA96
Eliminating the Numerical Cap on Mexican TN Nonimmigrants
AGENCY: Department of Homeland Security.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule removes the annual numerical cap on the number of
Mexican professional admissions under the North American Free Trade
Agreement (NAFTA). This rule also eliminates the associated requirement
of a petition for a Mexican-based NAFTA professional and the
corresponding labor condition application. These changes to the
regulations are consistent with the NAFTA's requirement that the annual
numerical cap and petition provisions for Mexican professionals sunset
by January 1, 2004. Note that on March 1, 2003, the Immigration and
Naturalization Service (Service) transferred from the Department of
Justice to the Department of Homeland Security (the Department)
pursuant to the Homeland Security Act of 2002, Public Law 107-296.
Accordingly, the Service's adjudication function transferred to the
Bureau of Citizenship and Immigration Services (BCIS) of the
Department.
DATES: Effective date. This interim rule is effective on January 1,
2004.
Comment date. Written comments must be submitted on or before May
10, 2004.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Department of Homeland Security, 425 I
Street, NW., Room 4034, Washington, DC 20536. To ensure proper
handling, please reference CIS No. 2266-03 on your correspondence.
Comments may also be submitted electronically to the Department at
rfs.regs.@dhs.gov. When submitting comments electronically, you must
include CIS No. 2266-03 in the subject box so that the comments can be
electronically routed to the appropriate office for review. Comments
may be inspected at the above address by calling (202) 514-3291 to
arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Craig Howie, Staff Officer, Business
and Trade Services Branch, Program and Regulations Development, Bureau
of Citizenship and Immigration Services, Department of Homeland
Security, 425 I Street, NW., ULLICO--3rd Floor, Washington, DC 20536,
telephone (202) 514-3228.
SUPPLEMENTARY INFORMATION:
What Is the NAFTA?
On December 17, 1992, The United States, Canada and Mexico signed
the North American Free Trade Agreement (NAFTA). The NAFTA entered into
force on January 1, 1994, creating one of the largest trade areas in
the world. Under the terms of the agreement, NAFTA allows for the
temporary entry of qualified businesspersons from each of the parties
to the agreement. Chapter 16 of the NAFTA is entitled A Temporary Entry
of Business Persons, and in addition to reflecting the preferential
trading relationship between the parties to the agreement, it reflects
the member nations' desire to facilitate temporary entry on a
reciprocal basis. It also establishes procedures for temporary entry,
addresses the need to ensure border security and seeks to protect the
domestic labor force in the member nations.
Chapter 16 of the NAFTA and Annex 1603 to Article 1603 of the NAFTA
established four categories of businesspersons to be allowed temporary
entry into the territory of another NAFTA party. The four categories
are: (1) Business visitors; (2) traders and investors; (3) intra-
company transferees; and (4) professionals.
Business visitors under the NAFTA are admitted to the United States
under the B-1 nonimmigrant classification (section 101(a)(15)(B) of the
Immigration and Nationality Act (Act)). A business visitor is a
businessperson from another NAFTA party who seeks to engage in an
occupation or profession with one of the seven categories of business
activities listed in Appendix 1603.A.1. The seven categories of
business activities listed in Appendix 1603.A.1 represent a complete
business cycle and include: (1) Research and Design; (2) Growth,
Manufacture and Production; (3) Marketing; (4) Sales; (5) Distribution;
(6) After-Sales Service; and (7) General Service.
Traders and investors are admitted to the United States under the
E-1 and E-2 nonimmigrant categories, respectively, under section
101(a)(15)(E) of the Act. A trader is an alien in the United States
admitted soley to carry on trade of a substantial nature principally
between the United States and the country of the alien's nationality.
An investor is an alien who has invested or is actively in the process
of investing a substantial amount of capital in a bona fide enterprise
in the United States.
Intra-company transferees are admitted to the United States under
the L-1 nonimmigrant classification (section 101(a)(15)(L) of the Act).
An intra-company transferee is an alien who, within 3 years preceding
the time of his or her application for admission into the United
States, has been employed abroad continuously for 1 year by a firm or
corporation or other legal entity or parent, branch, affiliate, or
subsidiary, and who seeks to enter the United States temporarily to
render his or her services to a branch of the same employer or as
parent, affiliate, or subsidiary thereof in a capacity that is
managerial, executive, or involves specialized knowledge.
Professionals under the NAFTA are admitted to the United States as
Trade NAFTA (TN) nonimmigrant aliens under section 214(e) of the Act.
What Is a TN Nonimmigrant Alien?
A TN nonimmigrant alien is a citizen of Canada or Mexico who seeks
admission to the United States, under the provisions of Section D of
Annex 1603 of the NAFTA, to engage in business activities at a
professional level as provided for in such annex. The NAFTA parties
have agreed that 63 occupations qualify as professions. These
occupations are listed in the Appendix 1603.D.1 to Annex 1603 to the
NAFTA found in 8 CFR 214.6(c). The list contains the only professions
in
[[Page 11288]]
which an alien can engage in and obtain admission to the United States
as a TN nonimmigrant alien.
What Changes Are Noted in This Rule?
Appendix 1603.D.4 of the NAFTA, reflected in section 214(e)(4) and
(5) of the Act, establishes an annual numerical ceiling of 5,500 on
Mexican TN admissions. In order to accurately administer this cap, the
Department has required the filing of Form I-129, Petition for Alien
Worker. This rule eliminates the annual numerical cap for citizens of
Mexico seeking a visa and admission as a TN nonimmigrant. Because this
rule reflects the elimination of the numerical cap (as required by the
provisions of the NAFTA), it will also eliminate the petition
requirement, which has allowed the Department to manage the numerical
limit. One requirement associated with the filing of the Form I-129
petition was the requirement of a certified labor condition application
(LCA). Because the numerical cap is eliminated, these associated
requirements are also eliminated.
What Is the Current Process Used by Mexican Citizens Seeking TN Status?
Currently, a citizen of Mexico seeking to come to the U.S. as a TN
nonimmigrant must have had submitted to the Department, on his or her
behalf, a Form I-129, Petition for Nonimmigrant Worker. In order to
properly file Form I-129 with the Department, an LCA must first be
certified by the Department of Labor (DOL). Upon approval of the
petition by the Department, the Mexican citizen must then apply to the
United States Department of State (DOS) for a visa.
How Will the Process Used by Mexican Citizens Seeking TN Status Change?
This rule eliminates the petition and LCA requirement. Rather than
make application to the DOL and the Department, a Mexican citizen
wishing to come to the U.S. in TN classification must apply directly to
the DOS for a visa. DOS will adjudicate the alien's eligibility for TN
classification, and upon approval and issuance of a visa the alien may
apply for admission to the United States. While the Department will no
longer collect a fee associated with the filing of Form I-129 since it
is no longer required, the DOS may collect fees prescribed by their
Secretary as consistent with the NAFTA.
Why Are These Changes Being Made?
At the time the NAFTA was negotiated, the agreement imposed the
additional controls of the cap, petition, and LCA requirement on
citizens of Mexico for a temporary period. In this case, the additional
controls were put into place for 10 years. (These additional controls
were not imposed on Canadian citizens.) Since the 10-year period will
end on January 1, 2004, the Department will fulfill its obligations
under the NAFTA by eliminating these requirements from its regulations.
Will Extension Requests and Requests for a Change of Employer Continue
To Require a Form I-129 Petition and LCA?
As is currently the case, requests for an extension of stay and
requests to add or change employers must be submitted on Form I-129.
However, no LCA will be required in order to obtain an extension. It
should be noted that the extension request made on Form I-129 is not a
petition for status within the meaning of section 214(c)(1) of the Act
and does not confer any of the appeal rights normally associated with a
petition. Form I-129 is required to obtain an extension of stay. The
Form I-129 in the context of an application for extension of stay is
merely the vehicle by which the Department collects the information
needed to make a determination on the extension application. Under 8
CFR 214.1(c)(5), there is no appeal of a denial of an application for
extension of stay.
Must a Mexican TN Applicant for Admission Obtain a Visa?
Yes. The consular office will make a determination as to whether
the alien is eligible for the TN classification and issuance of visa.
This determination replaces the former role of the Department in
adjudicating the Form I-129 petition. Because the NAFTA does not change
the requirement of a valid visa for a citizen of Mexico, this rule
retains the existing requirement of a valid passport for Mexican TN's.
Request for Comments
The Department of Homeland Security is seeking public comment
regarding this interim rule. In particular, the Department is
interested in comments addressing the lifting of the petition and labor
certification requirements for Mexican citizens desiring TN status in
the United States.
Good Cause Exception
The Department's implementation of this rule as an interim rule,
with provisions for post-promulgation public comments, is based on the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The
reasons and necessity for the promulgation of this rule on January 1,
2004, are as follows: This rule is necessary to ensure that the
Department is in compliance with the requirements placed upon the
signatory nations that are parties to the NAFTA. As previously noted in
this interim rule, the NAFTA requires the lifting of the annual cap of
5,500 Mexican TN professionals no longer than 10 years after the date
the NAFTA became effective. Therefore, regardless of whether the
Department promulgates regulations, the annual cap of Mexican TN
professionals will sunset on January 1, 2004. By eliminating the cap
and petition requirements now, the Executive Branch of the Federal
Government will be in compliance with this requirement made by the
NAFTA.
Adoption of this rule as an interim rule acknowledges the
importance of equal treatment for both the Canadian and Mexican
governments. In addition, the provisions of this interim rule will not
have a negative affect on any qualified Mexican citizen seeking TN
status, nor will it affect the qualified United States employer. The
rule will eliminate one portion of the administrative process by which
a qualified Mexican citizen may obtain TN status.
Accordingly, the Department believes that advance public notice and
comment of this regulation is impracticable and contrary to the public
interest. Therefore, there is good cause under 5 U.S.C. 553(b) and (d)
for dispensing with the requirements of prior notice and to make this
rule effective on January 1, 2004.
Regulatory Flexibility Act
I have reviewed this rule, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)) and, by approving it, I certify that
this rule will not have a significant economic impact on a substantial
number of small entities. This rule affects only TN nonimmigrant
individuals. These nonimmigrants are not considered small entities as
that term is defined in 5 U.S.C. 601(6). This rule also affects U.S.
employers of TN nonimmigrants, but does not create any new economic or
procedural burdens for those entities. Although some petitioning
businesses may be considered small businesses, this rule merely
simplifies applicable procedures and eliminates certain filing
requirements that in all likelihood will have a positive impact.
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
[[Page 11289]]
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 considered by the Department of Homeland Security to
be a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. Accordingly, this rule
has been submitted to the Office of Management and Budget (OMB) for
review.
In particular, the Department has assessed both the costs and
benefits of this rule as required by Executive Order 12866, section
1(b)(6) and has made a reasoned determination that the benefits of this
regulation justify its costs. Briefly, that assessment is as follows.
This rule eliminates the numerical cap on TN admissions and eliminates
certain filing requirements. This will eliminate the time and expense
associated with these forms, and will also reduce the processing and
waiting times associated with obtaining TN classification.
Executive Order 13132
This rule 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 section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections
3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting or recordkeeping
requirements inherent in a rule. This rule does not impose any new
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements.
0
Accordingly, part 214 of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; section 141 of the Compacts of Free Association with
the Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and
1931 note, respectively; 8 CFR part 2.
0
2. Section 214.6 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (d);
0
c. Revising paragraph (e);
0
d. Removing and reserving paragraph (f);
0
e. Revising paragraph (h);
0
f. Revising paragraph (i); and
0
g. Removing paragraph (l).
The revisions read as follows:
Sec. 214.6 Citizens of Canada or Mexico seeking temporary entry under
NAFTA to engage in business activities at a professional level.
* * * * *
(d) Classification of citizens of Canada or Mexico as TN
professionals under the NAFTA--(1) Citizens of Mexico. A citizen of
Mexico who seeks temporary entry as a business person to engage in
business activities at a professional level may be admitted to the
United States in accordance with NAFTA upon presentation of a valid
passport and valid TN nonimmigrant visa at a United States Class A
port-of-entry, at a United States airport handling international
traffic, or at a United States pre-clearance/pre-flight station.
(2) Citizens of Canada. A citizen of Canada seeking temporary entry
as a business person to engage in business activities at a professional
level shall make application for admission with a Department officer at
the United States Class A port-of-entry, at a United States airport
handling international traffic, or at a United States pre-clearance/
pre-flight station.
(3) Documentation. Upon application for a visa at a United States
consular office, or, in the case of a citizen of Canada making
application for admission at a port-of-entry, an applicant under this
section shall present the following:
(i) Proof of citizenship. A Mexican citizen applying for admission
as a TN nonimmigrant must establish such citizenship by presenting a
valid passport. Canadian citizens, while not required to present a
valid passport for admission unless traveling from outside the Western
hemisphere, must establish Canadian citizenship.
(ii) Documentation demonstrating engagement in business activities
at a professional level and demonstrating professional qualifications.
The applicant must present documentation sufficient to satisfy the
consular officer (in the case of a Mexican citizen) or the Department
officer (in the case of a Canadian citizen) that the applicant is
seeking entry to the United States to engage in business activities for
a United States employer(s) or entity(ies) at a professional level, and
that the applicant meets the criteria to perform at such a professional
level. This documentation may be in the form of a letter from the
prospective employer(s) in the United States or from the foreign
employer, and must be supported by diplomas, degrees or membership in a
professional organization. Degrees received by the applicant from an
educational institution not located within Canada, Mexico, or the
United States must be accompanied by an evaluation by a reliable
credentials evaluation service which specializes in evaluating foreign
educational credentials. The documentation shall fully affirm:
(A) The Appendix 1603.D.1 profession of the applicant;
(B) A description of the professional activities, including a brief
summary of daily job duties, if appropriate, in which the applicant
will engage in for the United States employer/entity;
(C) The anticipated length of stay;
(D The educational qualifications or appropriate credentials which
demonstrate that the Canadian or Mexican citizen has professional level
status; and
(E) The arrangements for remuneration for services to be rendered.
[[Page 11290]]
(e) Procedures for admission for a citizen of Canada or Mexico--A
citizen of Canada or Mexico who qualifies for admission under this
section shall be provided confirming documentation (Form I-94) and
shall be admitted under the classification symbol TN for a period not
to exceed one year. Form I-94 shall bear the legend ``multiple entry''.
The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by
Canadian Citizens upon admission to the United States pursuant to the
terms and conditions of the NAFTA. Upon remittance of the prescribed
fee, the TN applicant for admission shall be provided a Department-
issued receipt (Form G-211, Form G-711, or Form I-797).
(f) Reserved.
* * * * *
(h) Extension of stay--(1) Filing at the service center. The United
States employer of a citizen of Canada or Mexico in TN status or a
United States entity, in the case of a citizen of Canada or Mexico in
TN status who has a foreign employer, may request an extension of stay
by filing Form I-129 with the prescribed fee noted at 8 CFR
103.7(b)(1), with the Nebraska Service Center. The beneficiary must be
physically present in the United States at the time of the filing of
the extension of stay. If the alien is required to leave the United
States for any reasons while the extension request is pending, the
petitioner, in the case of a Mexican citizen TN beneficiary, may
request the director to cable notification of approval to the consular
office abroad where the Mexican TN beneficiary will apply for a visa.
In the case of a Canadian TN beneficiary, the petitioner may request
the director to cable notification of approval of the application to
the port-of-entry where the Canadian TN beneficiary will apply for
admission to the United States. If approved, an extension of stay may
be authorized for up to one year. There is no specific limit on the
total period of time an alien may remain in TN status.
(2) Readmission at the border. Nothing in paragraph (h)(1) of this
section shall preclude a citizen of Canada or Mexico who has previously
been in the United States in TN status from applying for admission for
a period of time that extends beyond the date of his or her original
term of admission at any United States port-of-entry. The application
for admission shall be supported by a new letter from the United States
employer or the foreign employer, in the case of a citizen of Canada
who is providing prearranged services to a United States entity, which
meets the requirements of paragraph (e) of this section. The fee
prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian
citizens upon admission to the United states pursuant to the terms and
conditions of the NAFTA. Citizens of Mexico must present a valid
passport and nonimmigrant TN visa when applying for readmission, as
outlined in paragraph (d)(1) of this section.
(i) Request for change or addition of United States employers--(1)
Filing at the service center. A citizen of Canada or Mexico admitted
into the United States as a TN nonimmigrant who seeks to change or add
a United States employer during the period of admission must have the
new employer file a Form I-129 with appropriate supporting
documentation, including a letter from the new employer describing the
services to be performed, the time needed to render such services, and
the terms of remuneration for services. Employment with a different or
with an additional employer is not authorized prior to Department
approval of the request.
(2) Readmission at the border. Nothing in paragraph (i)(1) of those
section precludes a citizen of Canada or Mexico from applying for
readmission to the United States for the purpose of presenting
documentation from a different or additional United States or foreign
employer. Such documentation shall meet the requirements prescribed in
paragraph (d) of this section. The fee prescribed under 8 CFR
103.7(b)(1) shall be remitted by Canadian citizens upon admission to
the United States pursuant to the terms and conditions of the NAFTA.
Citizens of Mexico may present documentation from a different or
additional United States or foreign employer to a consular officer as
evidence in support of a new nonimmigrant TN visa application.
(3) No action shall be required on the part of a citizen of Canada
or Mexico in TN status who is transferred to another location by the
same United States employer to perform the same services. Such an
acceptable transfer would be to a branch or office of the employer. In
a case of a transfer to a separately incorporated subsidiary or
affiliate, the requirements of paragraphs (i)(1) and (i)(2) of this
section will apply.
Dated: March 3, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-5324 Filed 3-9-04; 8:45 am]
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