[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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