[Federal Register Volume 73, Number 201 (Thursday, October 16, 2008)]
[Rules and Regulations]
[Pages 61332-61336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24600]



U.S. Citizenship and Immigration Services

8 CFR Parts 214 and 248

[CIS No. 2429-07; DHS Docket No. USCIS-2007-0056]
RIN 1615-AB64

Period of Admission and Extension of Stay for Canadian and 
Mexican Citizens Engaged in Professional Business Activities--TN 

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.


SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations to allow an increased period of admission and extension of 
stay for Canadian and Mexican citizens who seek temporary entry to the 
United States as professionals pursuant to the TN classification, as 
established by the North American Free Trade Agreement (NAFTA or 
Agreement). This final rule increases the maximum allowable period of 
admission for TN nonimmigrants from one year to three years, and allows 
otherwise eligible TN nonimmigrants to be granted an extension of stay 
in increments of up to three years instead of the current maximum of 
one year. In addition, this rule grants the same periods of admission 
or extension to TD nonimmigrants, the spouses and unmarried minor 
children of TN nonimmigrants to run concurrent. The rule also removes 
the mention of specific petition filing locations from the TN 
regulations and replaces the outdated term ``TC'' (the previous term 
given to Canadian workers under the 1989 Canada-United States Free 
Trade Agreement) with ``TN.'' This rule will reduce the administrative 
burden of the TN classification on USCIS, and will ease the entry of 
eligible professionals to the United States.

DATES: This final rule is effective October 16, 2008.

FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, Adjudications 
Officer, Business and Trade Services, Office of Service Center 
Operations, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., 2nd Floor, Washington, 
DC 20529, telephone (202) 272-8410.


I. Background

A. NAFTA and the TN Classification

    NAFTA and the NAFTA Implementation Act, Public Law 103-182, 
redesignated section 214(e) of the Immigration and Nationality Act 
(INA) to create the ``trade NAFTA'' (TN) nonimmigrant classification 
and provide for the temporary entry of qualified business persons from 
each of the countries that signed the Agreement. The TN nonimmigrant 
classification permits qualified Canadian and Mexican citizens to seek 
temporary entry as business persons to engage in professional business 
activities at a professional level in the United States. 8 CFR 
214.6(a). DHS regulations currently require that TN nonimmigrants may 
be admitted to the United States for a period not to exceed one year. 8 
CFR 214.6(e). The regulations further provide that TN professionals may 
apply for extensions of stay for a maximum period of one year. 8 CFR 

B. Proposed Rule

    On May 9, 2008, DHS published a notice of proposed rulemaking in 
the Federal Register at 73 FR 26340 proposing a change in the period of 
admission and extension of stay granted to TN nonimmigrants from Canada 
and Mexico engaged in professional business activities. The notice also 
proposed granting the same period of admission or extension of stay to 
TN dependents (TD nonimmigrants), removing outdated references to 
specific filing locations and prior requirements, and replacing the 
outdated term TC with the current TN term. Written comments to the 
proposed rule were due on or before June 9, 2008.
    In this final rule, DHS is adopting the proposed rule with no 
changes. The proposed rule was, and this final rule is, intended to 
improve the administration of the TN program and make it more flexible 
and attractive to Canadian and Mexican professionals and to employers 
in the United States. Currently, DHS regulations require TN 
nonimmigrants, to either seek readmission in TN status or apply for 
extensions of stay annually if they wish to remain in the United States 
beyond the period of their initial admission. 8 CFR 214.6(h). This 
requirement involves the annual submission of documentation and payment 
of filing fees. By removing these types of administrative requirements 
on TN employees and their U.S. employers, DHS will further the intent 
of NAFTA to facilitate the entry of eligible professionals into the 
United States.

II. Comments Received in Response to the Proposed Rule

    DHS received 80 comments in response to the proposed rule. The 
majority of commenters (76) supported this rulemaking. Many of these 76 
commenters suggested additional changes or enhancements to the TN 
classification regulations which were not part of the proposed rule. 
Two commenters opposed the proposed rule. One of these two commenters 
asked questions about lawful permanent residence and educational 
opportunities for aliens in the TN classification, but did not express 
an opinion on the proposed rule. The second of these two commenters 
simply complained about a perceived slight to U.S. workers contained in 
another public comment. Many of the received comments raised issues 
that are beyond the scope of this rulemaking but will be mentioned 
briefly as part of this disposition of the comments.

A. Increase to Three Years for Admissions and Extensions of Stay

    Comments on period of admission: The overwhelming majority of the 
commenters supported increasing the period of admission and extensions 
of stay granted to TN nonimmigrants from one to three years. Only two 
commenters opposed this proposal because they thought that jobs should 
be offered to U.S. workers rather than to foreign nationals. One 
commenter stated that the U.S. economy is suffering and jobs should 
thus be reserved for U.S. workers. The other commenter stated that the 
United States is presently flooded with immigrants and the TN program 
should be shut down while the country sorts out the problems with 
illegal immigrants present in the United States, and also made 
additional comments about aliens, politicians and the U.S. government 
in general.

[[Page 61333]]

    Response to comments on period of admission: DHS has not adopted 
these comments in opposition. This rule does not make it easier to hire 
TN nonimmigrants by altering eligibility requirements, changing 
existing filing fee requirements, or expanding the principle of ``dual 
intent.'' Rather, this rule simply increases the amount of time granted 
to a TN nonimmigrant once all eligibility requirements have been 
established. This rule has nothing to do with permanent immigration or 
illegal immigrants presently within the United States.

B. Other Comments

    Comments on dual intent: Thirteen commenters requested that TN 
nonimmigrants be granted ``dual intent'' and thereby be allowed to 
pursue permanent resident status while present in the United States in 
nonimmigrant status similar to the H-1B and L-1 nonimmigrant programs.
    Response to comments on dual intent: The dual intent doctrine holds 
that even though a nonimmigrant visa applicant has previously expressed 
a desire to enter the United States as an immigrant, and may still have 
such a desire, that does not of itself preclude USCIS from issuing a 
nonimmigrant visa to him or her nor preclude his or her being a bona 
fide nonimmigrant. Matter of H-R-, 7 I&N Dec. 651, 654 (INS Reg. Comm'r 
1958). See also INA section 214(h) (limiting dual intent to certain H, 
L, and V nonimmigrants); 8 U.S.C. 1184(h). Dual intent cannot be 
provided solely through regulation; it must be authorized by statute 
and it is not authorized in the TN nonimmigrant context. Furthermore, 
temporary entry, as defined in Chapter 16 of the NAFTA, Article 1608, 
is ``entry into the territory of a Party by a business person of 
another Party without the intent to establish permanent residence.'' 
Congressional approval of this Article in the NAFTA treaty indicates 
that Congress did not intend TNs to have dual intent. Therefore, the 
commenters' suggestion will not be adopted because it is clearly 
inconsistent with Article 1608 and Congressional intent.
    Comment on inability of Mexican TN nonimmigrants to apply for 
admission at the border: One commenter requested that Mexican TN 
nonimmigrants be able to apply for admission at designated ports-of-
entry similar to Canadian TN nonimmigrants. Currently, Mexican workers 
are required to obtain visas from the Department of State (DOS) before 
entering the United States.
    Response to comment on inability of Mexican TN nonimmigrants to 
apply for admission at the border: DHS appreciates the suggestion made 
by this commenter but the suggestion is outside the scope of this 
regulation. This rule deals with increasing the period of time granted 
to a TN nonimmigrant upon admission or pursuant to a timely filed 
request for extension of stay from a maximum of one year to a maximum 
of three years. Any additional regulatory changes, including a change 
to the place of admission, exceed the scope of this rule The 
commenter's suggestion, therefore, is not adopted.
    Comment on advance approval of Canadian admission requests: One 
commenter requested that Canadian TN nonimmigrants be permitted to file 
petitions with USCIS Service Centers for admission as an alternative to 
requesting admission at U.S. ports-of-entry, so that applications for 
TN status can be approved in advance of entry dates rather than 
requiring intended employees to actually apply for status before 
knowing whether their applications will be approved.
    Response to comment on advance approval of Canadian admission 
requests: DHS appreciates the suggestion made by this commenter. 
However, such reform exceeds the scope of the changes in the proposed 
rule and is not adopted in this final rule. The suggestion may be 
considered for future rulemaking involving TN nonimmigrants.
    Comments on erroneous periods of admission: Several commenters 
suggested that some TN nonimmigrants have erroneously been admitted for 
three years instead of a validity period of one year. Thus, one 
commenter requested that this rule should have a retroactive effective 
date to correct this problem.
    Response to comments on erroneous periods of admission: DHS 
understands these commenters' concerns. However, TN nonimmigrants who 
were admitted for a period of more than the one-year were granted that 
period of admission in violation of 8 CFR 214.6(e) as it existed prior 
to this rulemaking. Petitions must be processed in accordance with the 
regulations in effect when submitted, and this rule cannot deem those 
who were erroneously granted more than one year in the past to meet the 
requirements in this rule by making its provisions retroactive. 
Therefore, the commenter's suggestion was not adopted. Each TN 
nonimmigrant erroneously admitted for periods of three years prior to 
the effective date of this rulemaking is encouraged to correct his or 
her Form I-94 at a port-of-entry or deferred inspection station to 
ensure compliance with existing regulations and to ensure that he or 
she does not remain in the U.S. for a period longer than is authorized 
by law.
    Miscellaneous comments: Several commenters requested a more 
comprehensive reform of the TN regulations to include the following: 
more extensive definitions for the positions of Management Consultant 
and Scientific Technician/Technologist; increased vigilance against TN 
fraud; the establishment of clear guidelines in determining a ``closely 
related'' degree; an increase in the fee for port-of-entry processing 
of each TN application; a 30-day period during which the TN worker 
could enter the U.S. before the employment start date and/or remain 
outside the country without having the TN status invalidated; and work 
authorization for the spouses of TN nonimmigrants.
    Response to miscellaneous comments: DHS appreciates the suggestions 
made by the commenters. However, such comprehensive reform of the TN 
program exceeds the scope of the proposed rule, which was simply 
focused on allowing TN nonimmigrants and their employers a more stable 
and predictable period of employment. Therefore, the commenters' 
suggestions are not adopted in this rule.

III. Regulatory Requirements

A. Regulatory Flexibility Act

1. Initial Regulatory Flexibility Analysis
    DHS reviewed this rule in accordance with the Regulatory 
Flexibility Act and determined that this rule will reduce compliance 
costs on the regulated industries. This rule will reduce information 
collection costs for the public, and will reduce USCIS legal costs and 
the amount of fees collected, because TN and TD status holders will not 
have to renew their statuses each year. There are no provisions in this 
rule that add compliance costs. Therefore, DHS certifies that this rule 
would not have a significant economic impact on a substantial number of 
small entities.
2. Final Regulatory Flexibility Analysis (FRFA)
    In accordance with 5 U.S.C. 604, DHS performed a final regulatory 
flexibility analysis regarding the economic effects of this rule on 
small entities. DHS has not identified any duplication, overlap, or 
conflict of this rule with other Federal rules. Since DHS does not 
foresee the rule having an economic impact on small entities, this rule 
does not put forth significant alternatives to minimize impacts. The 
rule benefits the United States by reducing burden in the TN 
nonimmigrant status program. No

[[Page 61334]]

cost increases due to the revised requirements are expected. USCIS 
invited the public to comment on the extent of any potential economic 
impact of this rule on small entities, the scope of these costs, a more 
accurate means for defining these costs, and the estimated cost to 
petitioning firms to comply with the new requirements. In response to 
those requests, USCIS received no comments. Therefore, DHS certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. Accordingly, no further 
regulatory flexibility analysis is required.

B. 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 

C. 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 U.S.-based companies to compete with foreign-based 
companies in domestic and export markets.

D. Executive Order 12866 (Regulatory Planning and Review)

    This rule has been designated as a ``significant regulatory 
action'' by the Office of Management and Budget (OMB) under Executive 
Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, 
an analysis of the economic impact of this rule has been prepared and 
submitted to the Office of Management and Budget (OMB) for review.
    DHS has determined that this rule decreases the costs imposed by 
the TN nonimmigrant program on the government as well as the public. 
The changes made by this rule will result in more satisfaction with the 
TN program among TN nonimmigrants and their U.S. employers by 
increasing program flexibility and reducing time and travel 
restrictions. The expected effect is an increase in the number of TN 
nonimmigrants in the United States. A small economic benefit may result 
from the increased availability of scarce workers for U.S. employers in 
particular fields and industries. This rule will result in cumulative 
TN application fees decreasing by approximately $2.4 million per year. 
In addition, the total paperwork burden costs on the public will 
decrease by about 12,225 hours and $340,000 as a result of fewer 
required filings. Eventually, DOS and U.S. Customs and Border 
Protection annual fee collections from TN nonimmigrants will also 
decrease as a result of this rule. A copy of DHS' complete analysis is 
available in the rulemaking docket for this rule at 
www.regulations.gov, under Docket No. USCIS-2007-0056, or by calling 
the information contact listed above.

E. Executive Order 13132 (Federalism)

    This rule will have no 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, this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995) (PRA), all Departments are required to submit to OMB, 
for review and approval, any reporting or recordkeeping requirements 
inherent in a rule. This rulemaking does not impose any new reporting 
or recordkeeping requirements under the Paperwork Reduction Act. 
However, by requiring TN and TD status renewals every three years 
instead of every year, this rule will reduce the volume of Form I-129, 
Petition for Nonimmigrant Worker, filings, Form I-907, Request for 
Premium Processing Service, filings, and Form I-539, Application To 
Extend/Change Nonimmigrant Status, filings per year, and so will reduce 
the aggregate paperwork burden on the public accordingly. Accordingly, 
USCIS has submitted the OMB Correction Worksheets (OMB-83C) to the 
Office of Management and Budget, reducing the burden hours and costs 
associated with these forms.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, 
Reporting and recordkeeping requirements.

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:


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, 1258, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 
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.

Sec.  214.1  [Amended]

2. Section 214.1 is amended by:
a. Removing the designation ``Cdn FTA, Professional'' and ``TC'' from 
the list in paragraph (a)(2);
b. Removing the term ``TC'' and adding ``TN'' in its place in the first 
sentence in paragraph (c)(1).

3. Section 214.6 is amended by:
a. Revising the section heading and revising paragraphs (e), (g), and 
b. Redesignating paragraphs (j)(1), (j)(2) and (j)(3) as paragraphs 
(j)(2), (j)(3), and (j)(4), respectively;
c. Adding a new paragraph (j)(1);
d. Revising newly redesignated paragraphs (j)(2), (j)(3), and (j)(4); 
and by
e. Revising paragraph (k);
    The addition and 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.

* * * * *
    (e) Procedures for admission. A citizen of Canada or Mexico who 
qualifies for admission under this section shall be provided confirming 
documentation and shall be admitted under the classification symbol TN 
for a period not to exceed three years. The conforming document 
provided 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 DHS-issued receipt on the appropriate 
* * * * *
    (g) Readmission. (1) With a Form I-94. An alien may be readmitted 
to the

[[Page 61335]]

United States in TN classification for the remainder of the authorized 
period of TN admission on Form I-94, without presentation of the letter 
or supporting documentation described in paragraph (d)(3) of this 
section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1), 
provided that the original intended professional activities and 
employer(s) have not changed, and the Form I-94 has not expired.
    (2) Without a valid I-94. If the alien seeking readmission to the 
United States in TN classification is no longer in possession of a 
valid, unexpired Form I-94, and the period of initial admission in TN 
classification has not lapsed, then a new Form I-94 may be issued for 
the period of validity that remains on the TN nonimmigrant's original 
Form I-94 with the legend ``multiple entry'' and the alien can then be 
readmitted in TN status if the alien presents alternate evidence as 
    (i) For Canadian citizens, alternate evidence may include, but is 
not limited to, a fee receipt for admission as a TN or a previously 
issued admission stamp as TN in a passport, and a confirming letter 
from the United States employer(s).
    (ii) For Mexican citizens seeking readmission as TN nonimmigrants, 
alternate evidence shall consist of presentation of a valid unexpired 
TN visa and evidence of a previous admission.
    (h) Extension of stay. (1) Filing. A United States employer of a 
citizen of Canada or Mexico who is currently maintaining valid TN 
nonimmigrant status, or a United States entity (in the case of a 
citizen of Canada or Mexico who is currently maintaining valid TN 
nonimmigrant status and is employed by a foreign employer), may request 
an extension of stay, subject to the following conditions:
    (i) An extension of stay must be requested by filing the 
appropriate form with the fee provided at 8 CFR 103.7(b)(1), in 
accordance with the form instructions with USCIS.
    (ii) The beneficiary must be physically present in the United 
States at the time of the filing of the appropriate form requesting an 
extension of stay as a TN nonimmigrant. If the alien is required to 
leave the United States for any reason while the petition is pending, 
the petitioner may request that USCIS notify the consular office where 
the beneficiary is required to apply for a visa or, if visa exempt, a 
DHS-designated port-of-entry where the beneficiary will apply for 
admission to the United States, of the approval.
    (iii) An extension of stay in TN status may be approved by USCIS 
for a maximum period of three years.
    (iv) There is no specific limit on the total period of time an 
alien may be in TN status provided the alien continues to be engaged in 
TN business activities for a U.S. employer or entity at a professional 
level, and otherwise continues to properly maintain TN nonimmigrant 
    (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 admitted to the United States in TN status, and who has not 
violated such status while in the United States, from applying at a 
DHS-designated port-of-entry, prior to the expiration date of the 
previous period of admission, for a new three-year period of admission. 
The application for a new period of admission must 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 
(d) of this section, together with the appropriate filing fee as noted 
in 8 CFR 103.7(b)(1). Citizens of Mexico must present a valid passport 
and a valid, unexpired TN nonimmigrant visa when applying for 
readmission, as outlined in paragraph (d)(1) of this section.
* * * * *
    (j) * * * (1) The spouse or unmarried minor children of a citizen 
of Canada or Mexico admitted in TN nonimmigrant status, if otherwise 
admissible, may be admitted initially, readmitted, or granted a change 
of nonimmigrant status or an extension of his or her period of stay for 
the same period of time granted to the TN nonimmigrant. Such spouse or 
unmarried minor children shall, upon approval of an application for 
admission, readmission, change of status or extension of stay be 
classified as TD nonimmigrants. A request for a change of status to TD 
or an extension of stay of a TD nonimmigrant may be made on the 
appropriate form together with appropriate filing fees and evidence of 
the principal alien's current TN status.
    (2) The spouse or unmarried minor children of a citizen of Canada 
or Mexico admitted in TN nonimmigrant status shall be required to 
present a valid, unexpired TD nonimmigrant visa unless otherwise exempt 
under 8 CFR 212.1.
    (3) The spouse and unmarried minor children of a citizen of Canada 
or Mexico admitted in TN nonimmigrant status shall be issued confirming 
documentation bearing the legend ``multiple entry.'' There shall be no 
fee required for admission of the spouse and unmarried minor children.
    (4) The spouse and unmarried minor children of a citizen of Canada 
or Mexico admitted in TN nonimmigrant status shall not accept 
employment in the United States unless otherwise authorized under the 
    (k) Effect of a strike. (1) If the Secretary of Labor certifies or 
otherwise informs the Director of USCIS that a strike or other labor 
dispute involving a work stoppage of workers is in progress, and the 
temporary entry of a citizen of Mexico or Canada in TN nonimmigrant 
status may adversely affect the settlement of any labor dispute or the 
employment of any person who is involved in such dispute, the United 
States may refuse to issue an immigration document authorizing the 
entry or employment of such an alien.
    (2) 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 Department of Labor, or 
whether USCIS 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 
    (i) 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 TN nonimmigrants;
    (ii) 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; and
    (iii) Although participation by a TN nonimmigrant alien in a strike 
or other labor dispute involving a work stoppage of workers will not 
constitute a ground for removal, 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 removal.
    (3) 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 (k)(1) of this section, or USCIS has 
not otherwise been informed by the Secretary that such a strike or

[[Page 61336]]

labor dispute is in progress, Director of USCIS shall not deny a 
petition or deny entry to an applicant for TN status based upon such 
strike or other labor dispute.


4. The authority citation for part 248 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

Sec.  248.3  [Amended]

5. Section 248.3 is amended by removing the term ``TC'' and adding the 
term ``TN'' in its place in the first sentence of paragraph (a).

    Dated: September 15.
Michael Chertoff,
[FR Doc. E8-24600 Filed 10-15-08; 8:45 am]