[Federal Register Volume 79, Number 27 (Monday, February 10, 2014)]
[Rules and Regulations]
[Pages 7582-7584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02674]



22 CFR Part 41

[Public Notice 8627]
RIN 1400-AD29

Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended; TN Visas From NAFTA Countries

AGENCY: State Department.

ACTION: Final rule.


SUMMARY: The Department of State amends its regulation pertaining to 
The North American Free Trade Agreement (NAFTA), by removing the 
petition requirement for citizens of Mexico applying for nonimmigrant 
visa classification as NAFTA professionals. The rule reflects changes 
to documentary requirements authorized under the Immigration and 
Nationality Act, in implementation of NAFTA.

[[Page 7583]]

DATES: This rule is effective February 10, 2014.

Department of State, Office of Legislation and Regulations, CA/VO/L/R, 
600 19th Street NW., SA-17, Room 12-526B, Washington, DC 20522, 202-
485-7641 or [email protected]

SUPPLEMENTARY INFORMATION: The United States, Canada, and Mexico 
entered into The North American Free Trade Agreement, (NAFTA) (Section 
D of Annex 1603) in 1994, following enactment of the NAFTA 
Implementation Act (19 U.S.C. 21). NAFTA includes provisions for the 
entry of certain citizens of each respective signatory country into the 
country of either of the two others as ``professionals.'' To gain entry 
as ``professionals,'' such citizens must meet the qualification 
criteria for a profession listed in Appendix 1603.D.1, and be seeking 
temporary entry to engage in a business activity pursuant to that 
    Section 214(e)(2) of the Immigration and Nationality Act (INA) 
provides for a citizen of Canada or Mexico, and the spouse and 
children, if accompanying or following to join, to be treated as if 
seeking classification, or classifiable, as a nonimmigrant under INA 
section 101(a)(15). Section 214(e)(3) of the INA incorporates 
commitments made in NAFTA Appendix 1603.D.4, directing the Attorney 
General to establish an annual numerical limit for citizens of Mexico 
seeking temporary entry to engage in such business activity in the 
United States. INA section 214(e)(4) establishes conditions to be 
satisfied before the Secretary of Homeland Security, as successor to 
the Attorney General, may eliminate the numerical limit. At midnight, 
on December 31, 2003, the Secretary exercised this authority, and, as 
of January 1, 2004, eliminated the limitation of 5,500 and the 
requirement for a petition, which was needed solely for purposes of 
enforcing the limitation. This change to 22 CFR part 41 will provide 
consistency in the regulations of both departments governing temporary 
entry of NAFTA professionals.
    A citizen of Mexico wishing to come to the United States in TN 
classification no longer needs an approved petition to meet the 
qualification requirements, but may apply directly to the embassy or 
consulate abroad for a visa. The consular officer will adjudicate 
eligibility for TN classification and, upon approval and issuance of a 
visa, the applicant may apply to the Department of Homeland Security 
for admission to the United States under TN status.

Regulatory Findings

Administrative Procedure Act

    The Department of State is of the opinion that a rulemaking that 
implements treaty provisions (in this case, NAFTA) is a foreign affairs 
function of the United States Government and is exempt from sections 
553 (rulemaking) and 554 (adjudications) of the Administrative 
Procedure Act. Since this rule is exempt from 5 U.S.C. 553, the 
provisions of section 553(d) do not apply to this rulemaking.
    In addition, this rulemaking conforms the Department of State rule 
to the corresponding rule administered by the Department of Homeland 
Security, 8 CFR 214.6(e). This eliminates ambiguity; therefore, a 
notice and comment period for this rule would be impractical and 
unnecessary. This rule is effective upon publication.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this rule is exempt from notice and comment rulemaking 
under 5 U.S.C. 553, it does not require analysis under the Regulatory 
Flexibility Act.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally 
requires agencies to prepare a statement before proposing any rule that 
may result in an annual expenditure of $100 million or more by State, 
local, or tribal governments, or by the private sector. This rule will 
not result in any such expenditure, nor will it significantly or 
uniquely affect small governments.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness 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 adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and import markets.

Executive Order 12866

    The Department of State has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866 and has determined that the benefits of this 
final regulation justify its costs. The Department of State does not 
consider this rule to be an economically significant action within the 
scope of section 3(f)(1) of the Executive Order, since it is not likely 
to have an annual effect on the economy of $100 million or more or to 
adversely affect in a material way the economy, a sector of the 
economy, competition, jobs, the environment, public health or safety, 
or State, local or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders No. 12372 
and No. 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the rule in light of sections 3(a) and 
3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize 
litigation, establish clear legal standards, and reduce burden.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 

List of Subjects in 22 CFR Part 41

    Aliens, Immigration, Nonimmigrant Visas.

    For the reasons stated in the preamble, 22 CFR part 41 is amended 
as follows:


1. The authority citation for part 41 continues to read as follows:

    Authority:  8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 
through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458, as amended by section 546 of Pub. L. 109-295).

2. Section 41.59 is amended by revising paragraphs (a)(2), (a)(3), and 
(b) and removing paragraph (a)(4).
    The revisions read as follows:

Sec.  41.59  Professionals under the North American Free Trade 

    (a) * * *
    (2) The alien shall have presented to the consular officer 
sufficient evidence of an offer of employment in the United

[[Page 7584]]

States requiring employment of a person in a professional capacity 
consistent with NAFTA Chapter 16 Annex 1603 Appendix 1603.D.1 and 
sufficient evidence that the alien possesses the credentials of that 
profession as listed in said appendix; or
    (3) The alien is the spouse or child of an alien so classified in 
accordance with paragraph (a)(2) of this section and is accompanying or 
following to join the principal alien.
    (b) Visa validity. The period of validity of a visa issued pursuant 
to paragraph (a) of this section may not exceed the period established 
on a reciprocal basis.
* * * * *

    Dated: January 22, 2014.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2014-02674 Filed 2-7-14; 8:45 am]