TN VISA Approval

October 4, 2005 9:37 AM

Turned down for a TN VISA?

I applied for a TN VISA at the US Border (coming from Canada) under the "Computer Systems Analyst" category and was refused because the job offer I had received was for a "Software Developer" not specifically for a "Systems Analyst". I had indicated that the job fell under the Computer Systems Analyst category, but the immigration officer indicated that while he didn't know anything about computers, it seems like a developer is more a of programmer (which isn't covered under the NAFTA agreement) and so he couldn't give me the VISA. He asked if I would be programming, which I replied there was a programming component (upto 30% of the time I said). Anyways, he took a copy of the job offer letter, and put a note on my "file" that I had been refused. He told me not to try to just change the job title on the offer because they would check against their copy, and that he had indicated on my file that any further entry visa requests would have to come through that "port-of-entry", and that I would be better off trying for an "H"class visa. Anyways, my potential employer and I both agree that the position they offered me is equivalent to a Systems Analyst position, even if the job title is Software Developer. My employer recommended finding the definitions for the Computer Systems Analyst category and trying to convince the immigration people. Do you have any suggestions?

(note: applying for an H1B visa is a last resort, because of the time involved, and the fact that I have an associates degree, not a bachelors)

(note #2: This is a follow up to this question.

posted by blue_beetle to law & government (25 comments total)

I'm a H1B (until I move to Toronto at the end of the month anyway) - no idea about the associates versus bachelors requirement but there if you're concerned about time there is a "fast track" H1B which is approved within 15 days.

As to how to appeal the refusal though, have a conversation with a lawyer is my best (and most predictable) advice. My other half appealed a visa refusal a while back and the appeal went into the black hole of BCIS paperwork and hasn't been responded to yet. However he was already in the States which meant he could stay during the appeal. Appealing from abroad would be a tougher nut to crack, I should think.
posted by jamesonandwater at 9:50 AM on October 4, 2005

First: what jamesonandwater said. Getting a lawyer involved will speed things along.

My experience: I worked in the States, off and on, for about 4 years, always travelling on a TN as a Computer Systems Analyst. I was working for a Canadian company that did a lot of work in the States, and the company's lawyers did their best to make sure that we wouldn't have any troubles at the borders. For example, my title was "Software Engineering Consultant", not "Software Engineer", indicating that I was not a developer, but rather someone that the developers consulted with.

The letters used as TN applications were quite thorough. They used the correct TN terminology, they outlined our experience levels to demonstrate that we knew our stuff and were actually providing expertise, and they described the work we were doing, emphasizing a training/analysis position instead of a dev position.

Possibly off-the-wall suggestion: get a new job offer - a whole new letter that specifically says that it supercedes your previous job offer. Have it outline your responsibilities and qualifications, emphasizing a lack of programming in the job description. I don't know if such a seemingly-transparent attempt will work, but it might be worth a shot.

In my previous job, we did have people get turned back from the border, only to return the next day with slightly-modified documentation and cross with no problem. I don't know if that was because of any documentation change, or just because different officers were involved.
posted by flipper at 10:07 AM on October 4, 2005

does your potential employer have or can hire immigration attorney? appealing INS can be done by individual but it's best going through lawyer. also note that it takes a while for INS to process anything (my green card took 3.5 years instead of 2 that they promised, my application for H1B took 1.5 year instead of 8 months they promised) so having an attorney who knows loop holes to speed up the process would be your best bet. often INS can provide temporary right to work during the processing though.
posted by grafholic at 10:09 AM on October 4, 2005

IANAL, but I think if you have 3 or 5 years experience, you can qualify for a H1B. It's an either/or requirement.

I have held a TN visa in the past and I know people who have been turned down and then, later approved. An immigration lawyer may help you properly word your re-application. Go with a lawyer who works in same town as the port-of-entry, they often know the US immigration staff and can help get things going.

Good luck!
posted by GuyZero at 10:09 AM on October 4, 2005

Anyways, my potential employer and I both agree that the position they offered me is equivalent to a Systems Analyst position, even if the job title is Software Developer.

Forgive my stupidity, but if they think the position is a System Analyst one why would they give it the title Software Developer? Am I missing some aspect here?
posted by phearlez at 10:53 AM on October 4, 2005

Sorry if I missed this, but you really should have gotten a lawyer beforehand. The ex-INS is notorious for sticking to the letter of the law.

You should just go for the H1-B and get a lawyer this time. A Fast-track application can be had quickly, but you must apply in the beginning of the visa year, as the recent lowered caps on H1-B approvals have got them running out rather quickly.
posted by plexiwatt at 10:56 AM on October 4, 2005

Sorry that I'm a jackass for not R>C>P, you most likely will be denied an H1-B due to the lack of degree.
posted by plexiwatt at 11:01 AM on October 4, 2005

Also, the Department of Homeland Security and Foreigner Harrassment does not issue visas, the State Department does. And VISA is a credit card.
posted by Kirth Gerson at 11:11 AM on October 4, 2005

For what it's worth, I also recommend getting a lawyer. My wife is one specializing in immigration issues and I'm amazed at the hoops she has to go through for her clients. Immigration is a huge game with thousands of rules that are constantly changing; both those that are public and those that are assumed. You're much better off hiring someone who spends their time keeping track of what you need to do to play the system.

I'd rather debug machine code written by a dyslexic monkey than have to deal sometimes contradictory government organizations she has to work with.
posted by beowulf573 at 11:32 AM on October 4, 2005

phearlez, the TN visa has been described to be as having a "bureaucratic approval process". Quite literally, if the title on your job offer matches the list of approved job titles, you're in. Otherwise, you're out.

In many companies, especially high-tech ones, titles are both irrelevant and highly unimaginative. Which is a plus and a minus when it comes to getting a visa - companies are willing to give you nearly any title, but often give you the wrong one for visa purposes. Again, IANAIL.
posted by GuyZero at 12:03 PM on October 4, 2005

The ex-INS is notorious for sticking to the letter of the law.

He's not dealing with the ex-INS here, he's only been through CBP which is ex-Customs.

Also, the Department of Homeland Security and Foreigner Harassment does not issue visas, the State Department does. And VISA is a credit card.

Sorry Charlie, CBP is part of DHS and issues all sorts of visas.

According to the CBP "If you apply for admission to the United States under the Visa Waiver Pilot Program, the decision of the officer is final." also under the FAQ's for What are the disadvantages to using the VWP? " (Yes, I know you are visa exempt and not Visa Waiver, but that's where CBP has the info)If your admission is denied, you have no right to administrative or judicial review..."

I can find no evidence that what the CBP officer told you about "don't try getting a new job offer" is true. Sounds to me that you got a jackass CBP officer. My advice would be to do one of two things, get a new job offer with the Systems Analyst stuff better spelled out and go back to the border OR forget CBP and apply for a TN at your nearest Consulate. If your employer has an H1-b program already then maybe you can do that, but if not, it would take too long for them to go through the process.

Also, please write the CBP a detailed letter/email about your negative experience so that they can get better. Being as they are former Customs, they have ZERO customer service skills and need to be told that they are assholes regularly.
posted by Pollomacho at 12:33 PM on October 4, 2005

I should correct myself, CBP doesn't issue visas literally, they issue the important part, the admission card or I-94. For visa waiver or visa exempt folks, this is all you get. A visa on it's own is worthless without an I-94 to go with it.

A visa gives you permission to apply for admission, only CBP can grant you that.
posted by Pollomacho at 12:36 PM on October 4, 2005

Last thing, a lawyer is a huge waste of money in this case, don't bother unless the company will spring for it.
posted by Pollomacho at 12:37 PM on October 4, 2005

He's not dealing with the ex-INS here, he's only been through CBP which is ex-Customs.

Strictly speaking, the agents at US/Canada road crossings are both ex-INS and ex-Customs. Instead of having separate immigration and customs, like they do in airports, they have a customs/immigration "nexus."
posted by ROU_Xenophobe at 12:52 PM on October 4, 2005

Check with an immigration lawyer about the re-applying at a different port-of-entry. The officer might have been just BSing you.
posted by reverendX at 1:00 PM on October 4, 2005

Strictly speaking, the agents at US/Canada road crossings are both ex-INS and ex-Customs. Instead of having separate immigration and customs, like they do in airports, they have a customs/immigration "nexus."

Rou, INS and Customs were dissolved and reformed into three parts:

CBP that operates all ports of entry, land sea and air;

CIS that decides what benefits aliens in the US are or aren't entitled to (including permanent residence and work permits); and

ICE that enforces immigration and customs laws and regulations.

A separate line for customs and immigration is a pre-DHS system. It's all CBP now and they are all former Customs as the ex-INS workers were quickly squeezed out under ex-Customs management. Few ex-INS workers exist in CBP a slight few more are to be found in ICE. Most now are retired or work in CIS.
posted by Pollomacho at 1:07 PM on October 4, 2005

See if you can telecommute.
posted by delmoi at 1:11 PM on October 4, 2005

Sorry Charlie, CBP is part of DHS and issues all sorts of visas.

Sorry to you too, Chuck. Look here.

A visa simply indicates that your application has been reviewed by a U.S. consular officer at an American embassy or consulate, and that the officer has determined you're eligible to enter the country for a specific purpose. Consular affairs are the responsibility of the U.S. Department of State.

As I said, Chuck.
posted by Kirth Gerson at 6:51 PM on October 4, 2005

In my opinion, you really want to get the TN over the H1-B if it is at all possible. I also recommend an immigration lawyer. The wording of the letter really needs to match exactly the category you are applying under. In addition, the letter should have a fairly good description of what your duties (or even potential duties) will be, and these should also coincide with the TN description of "Systems Analyst." The Officer's are usually not being mean when they deny someone, but like the guy said - he really didn't know anything about computers. It may also help your case if you had the original job ad and the job description matched the "Systems Analyst"description.

If you end up getting a lawyer or not, I recommend calling the ICE and asking an Inspector what they would advise. I had a tricky TN situation a few years ago and an Inspector at the then INS office in Nebraska gave me the citation number that applied to my case to "remind" the Border Officer if there was a problem. I even got his direct number to call if I had a problem at the border.

From what I remember about reading the regulations many years ago, everything the Officer told you about trying again with a different tittle and needing to go back to the same Port-Of-Entry is true. I found this which led to this which describes the category. I would try to get a more official and up to date version though. I believe I got mine from a US consulate in Canada.

The thing to remember is that a TN Permit is a privilege and not a right. Even if you do qualify, the officer does not have to grant it - it is their discretion. Even if a Lawyer and an Inspector at the ICE may say everything is OK, it is still no guarantee.
posted by Yorrick at 9:43 PM on October 4, 2005

Kirth, I think you missed this:

I should correct myself, CBP doesn't issue visas literally, they issue the important part, the admission card or I-94. For visa waiver or visa exempt folks, this is all you get. A visa on it's own is worthless without an I-94 to go with it.

A visa gives you permission to apply for admission, only CBP can grant you that

Canadians are Visa Exempt, which means that they can show up at the border and apply for a entry and visa status from a CBP officer. State likes to call this an application for "certification" rather than an application for a visa. It is essentially the same thing except that no consular officers are harmed in the making of this entry.
posted by Pollomacho at 6:38 AM on October 5, 2005

No I didn't miss that. It was the condescending tone of your first (wrong) comment that prompted me to respond as I did. You implied that I did not know what I was talking about. Your "correction" did nothing to address that.

Canadians being visa exempt has nothing to do with the truth of my original statement, or your response to it.
posted by Kirth Gerson at 8:17 AM on October 5, 2005

Kirth, doesn't your link says nearly the same thing as I have stated in my corrected post? My first comment, playful as it may have attempted to be, was off a bit, you're right, that is why I corrected it. CBP does, however, confer visa status (aka nonimmigrant classification) to those people qualified for visa waiver or who are visa exempt who apply at Ports of Entry, such as the author of the question. TN is a visa status, issued by CBP, without ever involving the Department of State in most Canadian cases. I adivise the question author to involve the DOS in this instance as CBP seems to be giving him difficulties.

Condescension was not my intent I assure you, though I do wonder how my comment could be construed as more condescending than referring to DHS as the Department of Homeland Security and Foreigner Harrassment? Now, I'm still not trying to be condescending, but I do think extra commentary like that sort of sets a tone.
posted by Pollomacho at 10:41 AM on October 5, 2005

I do wonder how my comment could be construed as more condescending than referring to DHS as the Department of Homeland Security and Foreigner Harrassment?

You have obviously never been a "customer" of theirs. I have, on many occasions. My experience (and that of most others who have dealt with them) is that they are a bunch of arbitrary dicks. I don't want to make any assumptions here, so I'll ask - Do you work for them? If not, why are you so eager to defend them? If you do work for DHS, I suggest you try putting yourself on the other side of the counter. If you come across all "Sorry, Charlie" to me, a snarky MeFite, how do you treat those who have no appeal and can't answer back?

There is no instance where saying "Sorry, Charlie" is anything other than condescending. That was its import in the tuna commercials, and that's what it's been ever since.
posted by Kirth Gerson at 1:10 PM on October 5, 2005

Thanks everyone for your input. I'm getting a new job offer letter with the title and duties more explicitly explained, I've also printed out the job descriptions from the Department of Labor Dictionary of Occupational Titles and their Onet (www.onetcenter.org) job summary report for Computer Systems Analyst. Hopefully I will be able to show how my position is almost an exact copy of the official job description.

In response to the advice to get a lawyer, I'm not sure how feasible that is, I've looked into costs, and that can run into hundreds and hundreds of dollars, a bit out of my price range for right now.

I'm also hoping to get a different officer who might be more willing to listen. Thanks!
posted by blue_beetle at 8:52 AM on October 6, 2005

Followup part two: Armed with all my documentation and a bit of courage, I headed back to the border. This time I got a nice officer, and she didn't ask any questions, just took the paperwork, took my $56 and gave me the TN visa. And now I'm a US (temporary) resident. God bless america! The moral of the story is this: Keep trying!
posted by blue_beetle at 9:28 PM on October 8, 2005