Question: Would employment in a college career center qualify for TN visa status as a Vocational Counselor?

Reply: There is some ambiguity as to whether or not the Vocational Counselor TN visa category encompasses providing career counseling at a college career center. A position may qualify for TN visa status if in order to successfully perform the duties of the position an individual  must possess one of the credentials demonstrating status as a professional in one of the NAFTA occupational categories. See 8 C.F.R. § 214.6 (b) and (c).

To qualify for TN visa status as a Vocational Counselor, an individual must possess a bachelor’s or licenciatura degree. So if the position requires a vocational counseling or related degree, then an argument could be made for a TN visa status as a Vocational Counselor. Technically, this should be the end of the analysis. Yet, immigration inspectors generally go beyond this degree requirement, and look at the position in its entirety to examine its eligibility for TN visa status.

As a guide in making this determination, we can turn to the Occupational Outlook Handbook (“OOH”), a U.S. Department of Labor publication used as a reference for immigration applications. See, e.g., Blacher v. Ridge, 436 F. Supp. 2d 602, 609 (SDNY 2006). In its discussion on counselors, the OOH lumps educational, vocational, and school counselors all together. It does attempt to make some distinction. According to the OOH,

[v]ocational counselors, also called employment counselors or career counselors, usually provide career counseling outside the school setting. Their chief focus is helping individuals with career decisions. Vocational counselors explore and evaluate the client's education, training, work history, interests, skills, and personality traits. They may arrange for aptitude and achievement tests to help the client make career decisions. They also work with individuals to develop their job-search skills and assist clients in locating and applying for jobs. In addition, career counselors provide support to people experiencing job loss, job stress, or other career transition issues.

Based on this description, we could conclude that the OOH classifies career counselors who work in private practice, or who counsel individuals who have already completed their schooling, as vocational counselors, and classifies individuals who provide counseling on career matters within an educational setting as educational or school counselors. This is somewhat misleading. I think the more proper approach is to focus our classification based on job duties as opposed to the place of employment.

If a position is limited to providing counseling on vocational or career issues, then I think an argument can be made for eligibility for TN visa status as a Vocational Counselor regardless of the place of employment. If a position only marginally involves career counseling, and instead deals more with social, behavioral, and personal problems or other non-career matters, then perhaps the argument for eligibility for TN visa status as a Vocational Counselor weakens.

I think this approach is supported by the NAFTA TN regulations, which do not restrict the Vocational Counselor TN visa category to certain employment settings, as it does for other categories (e.g. the Research Assistant category is limited to positions at post-secondary educational institutions). Therefore, notwithstanding the possible interpretations of the OOH, an argument could be made that an individual may qualify for TN visa status as a Vocational Counselor for a position at a college career center.

In any visa application the burden of proof is on the applicant to establish that he or she is eligible to receive the visa. See INA § 291. So the burden of proving that a particular position comes within the scope of a TN visa occupational category is on the applicant. As there is not specific support in the OOH for classification of a college career center position for TN visa status as a Vocational Counselor, additional supporting documentation should be obtained to make the argument for eligibility for TN visa status (e.g. expert opinion, other labor or occupational publications or surveys, etc.).