[Federal Register Volume 69, Number 47 (Wednesday, March 10, 2004)]
[Rules and Regulations]
[Pages 11287-11290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5324]



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 Rules and Regulations
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  Federal Register / Vol. 69, No. 47 / Wednesday, March 10, 2004 / 
Rules and Regulations  

[[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.

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

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 
[email protected]. 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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