NAFTA and the Management Consultant DilemmaIt is just a common scene, repeated over and again at the many U.S.-Canada border posts. A young Canadian executive approaches an officer of the United States Department of Homeland Security, and hands her a tiny pile of documents prepared for him by the HR Manager of his prospective employer.
"I'm here to utilize 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 have a seat. Thirty minutes later the officer calls the applicant into a company and subjects him to a grueling hour of cross-examination.
"What's this?" demands the officer, shoving an item of letterhead in his face.
The applicant peers at the document. "It's a letter from the business that really 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. "Think about this?"
"That's my resume," answers the applicant, his face turning red.
"Uh, huh..." says the officer. "Exactly what are you attempting to pull here?"
"What can you mean?" asks the applicant.
"You're no Management Consultant. You do not have any management experience."
And so on...
The effect: Denial of the TN application. The reason: Either the position or the applicant do not qualify for the Management Consultant designation. The results: Lost time, lost money, lack of a potentially valuable employee, lack of a lucrative job opportunity, and humiliation.
The Management Consultant Category - An Incorrectly Perceived Loophole
Because so many people associated with HR Management are aware, the North American Free Trade Agreement (NAFTA) has simplified the keeping certain Canadian professionals into high-demand jobs in the United States. So long as the candidate fits in to the cookie-cutter professional categories listed in Appendix 1603.D.1 of the NAFTA, the interested company can avoid the longer processing times and higher fees related to the H-1B visa.
A lot of the NAFTA categories require at the least a bachelor's degree. And so long as the candidate can prove he or she's the mandatory 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 posture being an Engineer with a U.S. company.
A couple of NAFTA categories, however, permit the substitution of work experience rather than a bachelor's degree. One of these brilliant is the Management Consultant category, allowing "five years of experience as a management consultant, or five years experience in a field of specialty linked to the consulting agreement" to replacement 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 allowing them to position well-qualified candidates who have not completed an official degree program, but who're otherwise qualified for the position offered for their experience in the subject field.
Thus, HR Managers frequently send non-degreed persons such as for instance computer professionals without management experience to the border, allegedly to simply accept employment 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 for instance they're invariably doomed to failure.
Why the Management Consultant Designation is So Difficult to Obtain
USCIS Free Trade Officers are well conscious of the misperceptions that exist about 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.
Although it is hard for the officer to deny a TN visa once the applicant includes a university degree, it is fairly simple to question whether a non-degreed applicant's experience is "relevant" to the Management Consultant position offered. It is important to understand 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 a way to make use of this discretion, they do so...with a vengeance.
Make no mistake: the Free Trade Officer should 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 business'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 newest company. Most applications in the Management Consultant category do not last under this sort of scrutiny.
So, What Exactly is just a Management Consultant Anyway?
Unlike the belief of all HR Managers, a "Management Consultant'(for purposes of U.S. immigration law) is not just a manager. A "Management Consultant" is just a consultant to management hired by an organization to greatly help solve a certain short-term management problem. Free Trade Officers view these consultants as "hired guns": they are hired to resolve a certain problem, and then they should get out. Offers of company benefits such as for instance retirement and 401K plans, stock options, and life insurance are inconsistent with this particular view. These types of benefits are trappings of a permanent employee, not just a short-term temporary employee.
Therefore, at minimum, the business's cover letter to the INS should state with particularity the management problem to be solved, the reason behind the short-term importance of some other consultant, how the applicant is qualified to resolve the problem, and the terms of compensation. The applying must also incorporate a detailed CV which documents at the least five full years of relevant experience, as well as detailed reference letters from all past employers consistent with the CV. Contradictions between some of the above documents will soon be duly noted by the Free Trade Officer, and will more than likely end in the denial of a TN visa.
The Aftereffect of Past Denials
All isn't 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 another officer to re-consider a software as if presented for initially, if the officer wishes to do so. Because of this, it is fairly easy for an applicant to be refused by one officer at Niagara Falls each morning and admitted by another officer at Pearson International Airport in the afternoon, without the change to the application However, our firm doesn't recommend the latter approach, because some officers will perceive the same-day reapplication as an effort to play the system.
Our firm has successfully assisted an array of individuals who have been refused once, twice as well as three times. (Of course, the more times you've got been refused, the harder the case becomes.) Our task as experienced immigration lawyers is the exact same in all of these cases: a.) Complete evaluation of the Applicant and the Proposed Employment; b.) Choice of the Proper Visa Category; and c.) Assembly of the very most USCIS-Friendly Visa Application Possible.
Some Recommendations
It is definitely better for several parties concerned if, rather than trying to deal with important immigration matters on their own, HR Managers and potential TN applicants make an effort to consult with an immigration professional just before applying for a visa. The savings with time, money and frustration are well worth the investment. However, if they insist on handling these delicate cases on their own, it is effective to help keep the following in mind:
1. A Management Consultant is just a hired gun-a consultant to management hired to resolve a short-term management problem;
2. A Management Consultant shouldn't be compensated over and above the bottom salary;
3. A non-degreed applicant will need to have a minimum of five complete years of verifiable experience as a consultant to management or in a field of specialty linked to the consulting agreement. Ensure you have the documents to prove all five years;
4. There should be no discrepancies Singapore quality glass whatsoever between some of the documents presented to the Free Trade Officer;
5. The applicant should anticipate 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 will be hired to resolve;
6. A TN application should be made in conjunction with an "entry ".So, the applicant shouldn't be instructed to drive to the border ahead of time to see if the officer will issue the visa; and finally
7. 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.
|
