INS on Admission of B-1 in lieu of TN

Mr. William Z. Reich
300 Delaware Avenue
Buffalo, New York 14202

Dear Mr. Reich:

This refers to your letter of November 27, in which you ask whether an applicant for admission who is eligible for TN nonimmigrant status may be admitted as a “B-1 in lieu of TN.” You state that Appendix 1603.A.1, General Service Provision, specifically provides that a professional who is admissible under Appendix 1603.D.1 is also eligible for B-1 nonimmigrant classification.

There is no “B-1 in lieu of TN” nonimmigrant status that can be accorded an applicant for admission to the United States under the North American Free Trade Agreement (NAFTA) in the statute, regulations, or Service policy. Section A of Annex 1603 of the NAFTA establishes the appropriate category of temporary entry for a Party citizen seeking admission in order to engage in a business activity set out in Appendix 1603.A.1. Appendix 1603.A.1 to Annex 1603 of the NAFTA is a list of business activities representative of a complete business cycle in which a B-1 business visitor seeking entry under the NAFTA may engage.

The section of “General Service” in Annex 1603.A.1 that you reference in your letter does include “Professionals engaging in a business activity at a professional level in a profession set out in Appendix 1603.D.1.” However, this activity is conditioned upon the requirement in Section 1 of Annex 1603, Section A, that the business person otherwise comply with existing immigration measures applicable to temporary entry. Existing immigration provisions include, among others, documentation demonstrating that the proposed business activity is international in scope and that the business visitor is not seeking to enter the local labor market.

I note that the Service derives its authority for NAFTA Appendix 1603.A.1 from existing law at section 101(a)(15)(B) of the Immigration and Nationality Act (the Act). The business visitor category found at Annex 1603, Section A, of NAFTA is consistent with the general immigration provision at section 101(a)(15)(B) of the Act. Therefore, professionals engaging in a business activity at a professional level in a profession set out in Appendix 1603.D.1 to Annex 1603 of the NAFTA may be admissible as B- 1 nonimmigrant business visitors only if they qualify under the provisions of section 101(a)(15)(B) of the Immigration and Nationality Act (existing immigration measures) and they intend to leave the United States at the end of the temporary stay; have permission to enter a foreign country at the end of the temporary stay; have adequate financial resources to carry out the purpose of the visits to the United States; the principal place of business and the actual place of eventual accrual of profits are in the foreign country; and their entry into the United States made in the course of business will be of a temporary nature.

Classification as a business visitor is appropriate when a foreign employer requires an alien employee to perform services in the United States as adjuncts to international activities. It is not appropriate for entry as labor for hire. The business visitor classification applies to foreign jobs that might temporarily require work in the United States incident to an international transaction, not to U.S. jobs. Accordingly, an alien who is seeking entry as a B-1 nonimmigrant must meet all criteria for that classification.

I trust this response has been of some assistance to you with regard to your question.

Sincerely,

Yvonne M. LaFleur
Chief, Nonimmigrant Branch
Adjudications

27MM6B25