Question: I am a Canadian citizen currently employed with a design consultancy agency as a Program Manager/Project Director.  I am responsible for planning and implementing photo shoots for our agency's partners. I also partake in the image manipulation and selection process for the design projects we complete. I achieved a BFA degree in Photography & Imaging. Would my background and the position qualify me for a TN visa under the Graphic Designers category?

Reply: It may be possible to pursue a TN visa as a Graphic Designer for this position, but there will be some obstacles to overcome. The main two issues to assess to determine TN visa eligibility are (1) Does the job fall under one of the TN occupational categories listed in the NAFTA Appendix? And (2) Does the applicant possess appropriate credentials to qualify for the TN occupational category.

For this particular question, I will only focus on the first issue, viz. can this position be classified under one of the TN visa occupational classifications? U.S. immigration officers often deny TN visa applications for positions with managerial job titles under the belief that the TN visa classification does not allow managerial job functions. This is not necessarily correct. The fact that a position has a managerial job title or one that it is not specifically listed in the NAFTA Appendix does not necessarily preclude TN visa eligibility.  

First, U.S. immigration’s opinion that the TN visa classification does not allow managerial job functions is undermined by the specific inclusion of managerial positions in the NAFTA Appendix (see, e.g. Hotel Manager and Range Manager).  Second, under NAFTA the title of a position does not govern whether a position falls under one of the TN visa occupational categories listed in the NAFTA Appendix. Instead, the position’s job duties should be analyzed to determine the occupational classification of a position. See, e.g. In re X, LIN 03 232 53847 (AAO Oct. 25, 2004); and 9 FAM 41.59 n. 3.1 (c). One method of assessing a position’s eligibility under one of the TN visa occupations is to compare the job duties with the description of the TN visa occupation provided in the Occupational Outlook Handbook. If the proposed job duties align with the description of the occupation found in the OOH, then an argument may be made for a TN visa.

TN visa applicants should be aware that the burden is always on the applicant to establish his/her eligibility for TN visa status. See INA § 291. Thus, for complex cases like this, individuals should be prepared to show how the position qualifies for TN visa status. U.S. immigration will generally not find the applicant’s assertions – on their own – as convincing. Any statements made to U.S. immigration in support of a TN visa application should be made in reference to the applicable immigration laws, and be supported by independent evidence.

As many immigration officers may not be aware of, or have access to the applicable laws or guidelines (believe it or not), copies of these should be included in the TN visa application. More importantly, independent, documentary evidence to support the basis for eligibility must also be provided. Such evidence may include a copy of the Occupational Outlook Handbook, other U.S. Department of Labor publications, industry studies, or expert opinion letters.