Rehabilitating a TN Visa Denial (or What Can You Do Now That Your TN Visa has Been Denied?)

The first step to rehabilitation is to act like a trial attorney and engage in discovery tactics. For every denial, an attorney should obtain the following:

• Complete copy of the denied submission;
• Detailed job description;
• Applicant’s résumé;
• Q&A of applicant followed by an interview by the attorney; and
• Interview of the employer by the attorney.

In addition to discovery, another "golden rule" of this process is to use basic "litigation rules" when the attorney proceeds to rehabilitate. For example, do not allege or claim what cannot be proven. Do not allege or claim more than is necessary to make a sufficient case. Before alleging/claiming anything, be sure to have the documentation that confirms each and every element of the application necessary for approval.

Aside from these basic notions, there are three main principles with respect to rehabilitating a POE denial of a NAFTA application:

• Write less;
• Revisit the strategy and repackage the application; and
• Provide specific authority to support the theory of the application.

After a denial, examine and edit a support/employer letter that is overwritten. A TN application is not equivalent to an application for O-1 (extraordinary ability) nonimmigrant status. It is not even a labor certification with a dense list of minimum requirements. A TN engineer does not have to be exceptional at what he or she does; he or she just has to be a degreed engineer with an offer to perform ordinary engineering work in the United States . Similarly, an L-1A executive/manager does not have to lead the U.S. employer into unprecedented profitability; he or she just has to have an offer to serve in the capacity of an executive/manager at the U.S. affiliate after having been an executive/manager at the foreign affiliate for at least a year during the three years prior to his or her application.

The U.S. employer’s instinct may be to explain how important the applicant will be to the company, but the terms "director," "vice president," and "CEO" do not appear on the TN schedule and do not aid in the approval. A TN is not a shortcut to an H visa. However, a person may qualify to carry out the duties of a chief financial officer or marketing director by virtue of an educational and professional background as an accountant or economist. An "important" job title may make the officer overlook the actual information that confirms this person as an accountant, economist, or other professional on the TN schedule.

Laudatory adjectives and prognostications of fabulous U.S. success are irrelevant to POE applications, where the criteria are supposed to be "transparent." They may lead the adjudicator to look for qualifications that are not required for approval and expect documentation that does not exist and is not necessary for approval. Avoid these complications before you return to the POE.

Résumés may present the same problems. For example, a claim of more experience than can be documented can cause problems. Claiming six years of experience in a TN category that needs only three (when two of the six cannot be documented) is pointless. Four documented years of experience produces the same approval as 40 years, but two years that cannot be documented would invite questions about credibility. Scaling down on a puffed-up résumé may also lead to a successful rehabilitation.

Often, the attorney will find that the application, as originally presented, was properly denied. However, in a subsequent review, the attorney can conclude that the applicant is eligible for admission in a different category or under a different theory of the case. Take the time to educate the applicant and the employer about why the initial presentation did not work, and explain how the applicant should qualify.

For example, clarification of the proper managerial functions can rehabilitate a denied L-1. Also, clarification of the criteria to qualify as a skilled computer professional can help in the rehabilitation process. These days, most computer professionals do not necessarily obtain baccalaureate degrees or even two-year diplomas because the field changes too quickly. Two years spent in school may mean the student misses out on two or three generations of "real-world" technological development. Obviously, without the diploma, these professionals cannot come within the definition of "computer systems analyst" for the TN category. Many individuals apply in the category and are properly denied.

However, the same individual can qualify as a TN Scientific Technician in the field of computer engineering. Careful examination of the transcript of studies and the ability shown by the applicant’s experience in the field can produce a good TN Sci-Tech application. This is a common reapplication familiar to most NAFTA practitioners and the best example of rehabilitation through recasting the entire application based on the actual facts that support approval.

After a determination that the application was originally cast in the wrong strategic light, the next step is to rewrite and repackage under the new theory. However, remember that if you deviate from the original theory of the case, be sure to explain it to the new inspector. Whenever possible, explain to the inspector that the prior application made an improper classification of the applicant, but after further review and analysis, you have undertaken to present a new application with supporting documentation under what should now be considered an appropriate classification.

It is best not to leave an application open to the possibility of confusion. When there is a question that can be resolved by statute, regulations, the INS Inspector’s NAFTA Handbook, or DHS memos, letters, or cables, attach the authority to the documentation to show the documentation tracks the requirements. Do not be subtle or timid after an application has already been denied.

Submit relevant printouts from the Department of Labor’s Dictionary of Occupational Titles (DOT), the Occupational Outlook Handbook (OOH), or O*NET (the newest online version of occupation descriptions) that explain the normal responsibilities for the applicant’s profession. Highlight or circle all the activities listed in these helpful resources that match the duties the applicant will perform in the U.S. position offered.

Additionally, the INS Inspector’s NAFTA Handbook itself may help solve a documentation problem. For instance, for a TN Sci-Tech who will work in support of a professional in the scientific field, ask the professional to make an attestation that the applicant has the theoretical knowledge and ability to solve practical problems in the field. Refer in the attestation to the education and experience demonstrated by other documents (the INS Inspector’s NAFTA Handbook refers to an employer’s attestation as evidence of sci-tech qualifications).

Again, in any rehabilitation case, allege what is necessary, document what is necessary, and stop! Do not allege anything that cannot be proven as if at trial.