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TN Economists-Who Qualifies? USCIS Issues New Policy

Under the North American Free Trade Agreement (NAFTA), the TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. NAFTA includes a very narrow and specific list of occupations that qualify for TN professionals, one of which is economist.  Under a new policy issued by USCIS on November 20, 2017, USCIS will look specifically at the job duties to be performed, not the job title. Financial analysts, market research analysts and marketing specialists, even if holding an economics degree, will not be considered to be economists if their primary activities are not the performance of economist duties. Market research analyst, marketing specialist and financial analyst are NOT on the NAFTA professionals list. USCIS relies on the Occupational Outlook Handbook that is updated every year and the SOC codes put out by the US Department of Labor. The memo states:

Economists generally specialize in either microeconomics (analyzing the behavior of individuals and firms with the aim of understanding the relationships between supply and demand) or macroeconomics (analyzing aggregated indicators to determine how different sectors of the economy relate to each other).

 In addition to these two broad focus areas, economists may apply economic analysis to issues in a variety of fields, such as labor, international trade, development, econometrics, education, health, and industrial organization, among other fields. Further, the Department of Labor’s Standard Occupational Classification (SOC) system defines economists as conducting research, preparing reports, or formulating plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy.

Economists may collect and process economic and statistical data using sampling techniques and econometric methods. Notably, the SOC’s definition of the economist occupation specifically excludes the occupations market research analyst and marketing specialist (SOC #13-1161). Therefore, to be consistent with the SOC, USCIS is clarifying that persons who are engaged primarily in activities associated with market research analysts and marketing specialists, as described in the SOC and the Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH), do not qualify for the TN nonimmigrant classification as an economist.

The memo goes on to discuss how financial analysts may or may not be economists as they may have overlapping duties. Again, focus is on the primary duties.

“…financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions. Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories.”

 From a practical standpoint, if a person already has a TN for market research analyst, market specialist or financial analyst duties filed as an economist, expect a re-evaluation at the time of renewal in the US or at the border when seeking the next TN. These cases should be reevaluated for TN compliance or for potential H-1B status. Even with H-1Bs, a common RFE issue focuses on employers permitting multiple occupational experience or degree specialties that USCIS now views as not a specialized enough occupation.  A thorough analysis of these kinds of cases should be done with legal counsel because of shifting interpretations and RFE trends.

Further, keep in mind that this is a USCIS policy. USCIS deals with TNs in the context of I-129 petitions for change of status or extension of stay. As of this writing (December 24, 2017), neither CBP nor the State Department have issued matching policies. Thus, whether the issue would come up at the border for a first time or renewed TN or at the consulate for a Mexican TN, is unknown at this time. But, applicants should be aware of the potential for reconsideration of previously issued market research analyst, financial analyst or market specialists duties under the TN economist profession.