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09.22.2010

NAFTA and the Management Consultant Dilemma

Author: Orlando Ortega-Medina, Esq.

(Originally published in Human Resources Professional, September/October 2000)

Description: The "Management Consultant" category is one of the most used visa categories under the North American Free Trade Agreement (NAFTA). It is also the least understood category. This article explains what the INS is looking for when considering a TN1 visa application in the Management Consultant category, describes some of the more common pitfalls and how to avoid them.

It is a common scene, repeated over and again at the various U.S.-Canada border posts. A young Canadian executive approaches a US port officer, and hands her a small pile of documents prepared for him by the HR Manager of his prospective employer.

“I’m here to apply for a TN visa,” declares the applicant.

“In what category?”

“Uh…Management Consultant.”

The immigration officer glances at the documents with an air of distaste and tells the applicant to take a seat. Thirty minutes later the officer calls the applicant into an office and subjects him to a gruelling hour of cross-examination.

“What is this?” demands the officer, shoving a piece of letterhead in his face.

The applicant peers at the document. “It’s a letter from the company that wants to hire me.”

“It’s too short and doesn’t describe a management problem,” says the officer, tossing aside the letter and pulling out another document. “How about this?”

“That’s my résumé,” answers the applicant, his face turning red.

“Uh, huh…” says the officer. “Just what are you trying to pull here?”

“What do you mean?” asks the applicant.

“You’re no Management Consultant. You don’t have any management experience.”

And so on…

The result: Denial of the TN application. The reason: Either the position or the applicant do not qualify for the Management Consultant designation. The consequences: Lost time, lost money, loss of a potentially valuable employee, loss of a lucrative job opportunity, and humiliation.

The Management Consultant Category – An Incorrectly Perceived Loophole

As most people involved in HR Management are aware, the North American Free Trade Agreement (NAFTA) has simplified the placement of certain Canadian professionals into high-demand jobs in the United States. As long as the candidate fits into the cookie-cutter professional categories listed in Appendix 1603.D.1 of the NAFTA, the interested company is able to avoid the longer processing times and higher fees associated with the H-1B visa.

Most of the NAFTA categories require at least a bachelor’s degree. And as long as the candidate can prove he or she has the required education, approval of a TN visa is virtually assured. For example, a Canadian Engineer with a bachelor’s degree should

have no trouble qualifying for a position as an Engineer with a U.S. company.

A few NAFTA categories, however, allow for the substitution of work experience in place of a bachelor’s degree. One of these is the Management Consultant category, which allows “five years of experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement” to substitute for a missing bachelor’s degree.

Unfortunately, the Management Consultant category is incorrectly perceived by many HR Managers as a sort of “loophole” in the immigration law which allows them to place well-qualified candidates who have not completed a formal degree program, but who are otherwise qualified for the position offered because of their experience in the subject field.

Thus, HR Managers frequently send non-degreed persons such as computer professionals with no management experience to the border, allegedly to accept a job in the States as a “Management Consultant”; or they send non-degreed candidates with management experience to the border, with the intent of placing them in long-term management positions with U.S. companies. Applications such as these are invariably doomed to failure.

 

Why the Management Consultant Designation is So Difficult to Obtain

U.S. Immigration Free Trade Officers are well aware of the misperceptions that exist regarding the Management Consultant category. They adjudicate and deny countless bogus TN applications in this category on a daily basis. So whenever someone presents at a U.S.-Canada border with a TN application seeking admission through the Management Consultant category, the officer’s guard immediately goes up.

While it is difficult for the officer to deny a TN visa when the applicant has a university degree, it is fairly easy to question whether a non-degreed applicant’s experience is “relevant” to the Management Consultant position offered. It is important to realize that U.S. immigration law gives its Free Trade Officers complete and unfettered discretion to make a decision on a NAFTA visa application. Denials are not appealable. So, when they have an opportunity to use this discretion, they do so…with a vengeance.

Make no mistake: the Free Trade Officer will go through every word of a TN application, compare the applicant’s CV with her employment-based reference letters to look for contradictions and analyze the company’s cover letter and its financial statements. Finally, the officer will thoroughly grill the applicant with respect to her alleged prior experience and her proposed duties with the new company. Most applications in the Management Consultant category do not hold up under this level of scrutiny.

So, What Exactly is a Management Consultant Anyway?

Contrary to the belief of most HR Managers, a “Management Consultant” (for purposes of U.S. immigration law) is not a manager. A “Management Consultant” is a consultant to management hired by an organization to help solve a particular short-term management problem. Free Trade Officers view these consultants as “hired guns”: they are hired to solve a particular problem, and then they must get out. Offers of company benefits such as retirement and 401K plans, stock options, and life insurance are inconsistent with this view. These types of benefits are all trappings of a permanent employee, not a short-term temporary employee.

Therefore, at minimum, the company’s cover letter to the INS should state with particularity the management problem to be solved, the reason for the short-term need for an outside consultant, how the applicant is qualified to solve the problem, and the terms of compensation. The application should also include a detailed CV which documents at least five full years of relevant experience, as well as detailed reference letters from all past employers consistent with the CV. Contradictions between any of the above documents will be duly noted by the Free Trade Officer, and will likely result in the denial of a TN visa.

The Effect of Past Denials

All is not lost if a TN visa is denied by a Free Trade Officer. That same complete and unfettered discretion wielded by one Free Trade Officer empowers the next officer to re-consider an application as if presented for the first time, if the officer wishes to do

so. Because of this, it is entirely possible for an applicant to be refused by one officer at Niagara Falls in the morning and admitted by another officer at Pearson International Airport in the afternoon, without any change to the application! However, our firm does not recommend the latter approach, because some officers will perceive the same-day reapplication as an attempt to play the system.

Our firm has successfully assisted a myriad of individuals who have been refused once, twice or even three times. (Of course, the more times one has been refused, the more difficult the case becomes.) Our task as experienced immigration lawyers is the same in all of these cases: a.) Complete evaluation of the Applicant and the Proposed Employment; b.) Selection of the Proper Visa Category; and c.) Assembly of the most USCIS-Friendly Visa Application Possible.

Some General Recommendations

It is always better for all parties concerned if, instead of trying to handle important immigration matters on their own, HR Managers and potential TN applicants take the time to consult with an immigration professional prior to applying for a visa. The savings in time, money and frustration are well worth the investment. However, if they insist on handling these delicate cases on their own, it is helpful to keep the following general principals in mind:

1. A Management Consultant is a hired gun--a consultant to management hired to solve a short-term management problem;

2. A Management Consultant should not be compensated over and above the base salary;

3. A non-degreed applicant must have a minimum of five complete years of verifiable experience as a consultant to management or in a field of specialty related to the consulting agreement. Make sure you have the documents to prove all five years;

4. There should be no discrepancies whatsoever between any of the documents presented to the Free Trade Officer;

5. The applicant should be prepared to answer intelligently, and in detail, the officer’s questions regarding: a.) the applicant’s past experience, and b.) the management problem he or she is being hired to solve;

6. A TN application must be made in conjunction with an “entry”. So, the applicant should not be instructed to drive to the border in advance to see if the officer will issue the visa; and finally

7. Always remember that Free Trade Officers have complete and unfettered discretion to rule on NAFTA cases. Therefore, the applicant should present with as deferential an attitude as possible.