INS NAFTA Implementation Cable 008

Several questions have been raised regarding the concept of "self employment" associated with the NAFTA Professional (TN) classification. Headquarters acknowledges the importance of addressing this concept in greater detail to ensure uniform application of the TN provisions. However, the trilateral nature of the NAFTA entry provisions coupled with the complexity of the issue demand concerted study by Canadian, Mexican and United States officials.

Article 1605 of NAFTA establishes a temporary entry working group comprised of immigration officials from Canada, Mexico, and the United States.

The first meeting of this working group convened in March 1994 in Washington and the agenda included the issue of "self employment" of NAFTA Professionals. Canada, Mexico, and the United States have undertaken commitments to facilitate entry of business persons on a reciprocal basis and it is important that the provisions of Chapter 16 are applied by the three parties on a reciprocal basis.

Until Final resolution of this issue is reached among the three parties and additional guidance can be provided, Headquarters draws close attention to the following:

1. The statement of administrative action accompanying the implementing legislation for NAFTA Chapter 16: Page 78 of the statement of administrative action provides in pertinent part, "section D of Annex 1603, does not authorize a professional to establish a business or practice in the United States in which the professional will be self-employed."

2. Citizenship and Immigration Canada Operation Memorandum: Citizenship and Immigration Canada instructions to its field officers instructs that the purpose of entry of NAFTA Professionals into Canada must be to provide pre-arranged services to a Canadian enterprise.

3. NAFTA: Annex 1603 Section B - Traders and Investors: Investment opportunities by citizens of NAFTA parties is recognized in Section B of Annex 1603. The INS regulations reflect that a Canadian or Mexican citizen seeking to direct and develop an investment in the United States may apply for classification as an E-2 nonimmigrant.

4. NAFTA: Annex 1603 Section C - Intracompany transferees: The authority of the United States to carry out the intracompany transferee commitments in Annex 1603 is found in existing statute and regulation controlling the L nonimmigrant classification. The regulations at 8 CFR 214.2(l) set forth the requirements to establish a new office in the United States. A Canadian or Mexican citizen who qualifies for L classification under these regulations may be admissible to open a new business.

None of the above references precludes a citizen of Canada or Mexico who is self-employed outside of the United States from seeking entry to the United States to engage in a pre-arranged activity at a professional level listed in Appendix 1603.D.1 for an enterprise owned by a person or entity other than him or herself which is located in the United States.

Additional guidance will be provided as it is developed through the temporary entry working group.

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