[Federal Register Volume 65, Number 244 (Tuesday, December 19, 2000)]
[Proposed Rules]
[Pages 79320-79323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32281]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 2068-00]
RIN 1115-AF85
Adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of
the North American Free Trade Agreement
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service's (Service) Regulations by adding the occupations of actuary
and plant pathologist to the list of professions in Appendix 1603.D.1
to Annex 1603 of the North American Free Trade Agreement (NAFTA). This
rule also proposes to modify the licensure requirements for Canadian
citizens seeking admission to the United States as TN nonimmigrant
aliens. These amendments are being proposed to reflect the agreements
made among the three parties to the NAFTA. This rule will facilitate
travel to the United States and benefit United States businesses.
DATES: Written comments must be submitted on or before February 20,
2001.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC
20536. To ensure proper handling, please reference the INS number 2068-
00 on your correspondence. Comments are available for public inspection
at the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer,
[[Page 79321]]
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 353-8177.
SUPPLEMENTARY INFORMATION:
What Is the NAFTA?
On December 17, 1992, The United States, Canada and Mexico signed
the North American Free Trade Agreement (NAFTA). The NAFTA entered into
force on January 1, 1994, creating one of the largest trading areas in
the world. Besides trade, NAFTA allows for the temporary entry of
qualified business persons from each of the parties to the agreement.
The NAFTA is comprised of 22 chapters. Chapter 16 of the NAFTA is
entitled ``Temporary Entry of Business Persons,'' and in addition to
reflecting the preferential trading relationship between the parties to
the agreement, it reflects the member nations' desire to facilitate
temporary entry on a reciprocal basis. It also establishes procedures
for temporary entry, addresses the need to ensure border security and
seeks to protect the domestic labor force in the member nations.
Articles 1605 of Chapter 16 of the NAFTA also established a
Temporary Entry Working group (TEWG), comprised of representatives of
each of the parties to the NAFTA, including immigration officials. The
working group is required to meet at least once a year to consider
several issues including the development of measures to further
facilitate temporary entry of business persons on a reciprocal basis as
well as proposed modifications of or additions to Chapter 16.
What Business Persons Are Covered Under the NAFTA?
Annex 1603 to Article 1603 of the NAFTA establishes 4 categories of
business persons to be allowed temporary entry into the territory of
another NAFTA party. The 4 categories are: (1) Business visitors; (2)
traders and investors; (3) intracompany transferees; and (4)
professionals.
Business visitors under the NAFTA are admitted to the United States
under the B-1 nonimmigrant classification [INA 101(a)(15)(B)]. A
business visitor is a business person from another NAFTA party who
seeks to engage in an occupation or profession with one of the seven
categories of business activities listed in Appendix 1603.A.1. The
seven categories of business activities listed in Appendix 1603.A.1
represent a complete business cycle and include: (1) Research and
Design; (2) Growth, Manufacture and Production; (3) Marketing; (4)
Sales; (5) Distribution; (6) After-Sales Service; and (7) General
Service.
Traders and investors are admitted to the United States under the
E-1 and E-2 nonimmigrant categories, respectively [INA 101(a)(15)(E)].
A trader is an alien in the United States admitted solely to carry
on trade of a substantial nature principally between the United States
and the country of the alien's nationality. An investor is an alien who
has invested or is actively in the process of investing a substantial
amount of capital in a bona fide enterprises in the United States.
Intracompany transferees are admitted to the United States under
the L-1 nonimmigrant classification [INA 101(a)(15)(L)]. An
intracompany transferees is an alien who, within 3 years preceding the
time of his or her application for admission into the United States,
has been employed abroad continuously for 1 year by a firm or
corporation or other legal entity or parent, branch, affiliate, or
subsidiary, and who seeks to enter the United States temporarily to
render his or her services to a branch of the same employer or as
parent, affiliate, or subsidiary thereof in a capacity that is
managerial, executive, or involves specialized knowledge.
Professionals under the NAFTA are admitted to the United States as
TN nonimmigrant aliens [INA 214(e)].
What Is a TN Nonimmigrant Alien?
A TN nonimmigrant is a citizen of Canada or Mexico who seeks
admission to the United States, under the provisions of Section D of
Annex 1603 of the NAFTA, to engage in business activities at a
professional level as provided for in such annex. The code ``TN'' is an
admission code developed by the United States government for Canadian
and Mexican citizens admitted to the United States as business
professionals under the NAFTA. The TN code is not part of the NAFTA
agreement and is not used by the Canadian and Mexican governments. The
NAFTA parties have agreed that 63 occupations quality as professionals.
These occupations are listed in the Appendix 1603.D.1 to Annex 1603 to
the NAFTA found in Sec. 214.6(c). The list represents the only
professions that will enable an alien to obtain admission to the United
States as a TN nonimmigrant alien.
What Changes Is the Service Proposing To Make in This Rule?
This rule proposes to add the occupation of actuary to the list of
professions in Appendix 1603.D.1. In addition, this rule proposes to
include plant pathologist to the Appendix 1603.D.1 as a footnote to the
occupation of biologist. This rule also proposes to change the
licensure requirements for Canadian TN aliens applying for admission to
the United States. This provision is currently described at
Sec. 214.6(e)(3)(ii)(F). This rule also proposes to remove
Sec. 214.6(1), which relates to the transition period for Canadian
citizens who were admitted to the United States under the United
States-Canada Free Trade Agreement that existed before the effective
date of the NAFTA. This rule also proposes to change all references to
the Northern Service Center to the Nebraska Service Center to reflect
the center's current name.
Why Is the Service Adding the Occupation of Actuary to Appendix
1603.D.1?
In June 1994, the American Academy of Actuaries and its Canadian
and Mexican counterparts approached the United States Chapter 16 TEWG
and requested that actuaries be added to the list of professions
contained in Appendix 1603.D.1 to Annex 1603 to the NAFTA. After a
series of negotiations and consultations, the NAFTA parties recognized
that the occupation of actuary should be included in the list of
professions in Appendix 1603.D.1. The parties agreed that the minimum
educational requirements and alternative credentials for actuaries were
a Baccalaureate or Licensiatura Degree in Actuarial Science or
satisfaction of the necessary requirements to be recognized as an
actuary by a professional actuarial association or society.
Why Is the Service Including the Occupation of Plant Pathologist in
the Appendix 1603.D.1?
In 1990, the Canadian Phytopathological Society requested that the
occupation of plant pathologist be added to the list of professions
contained in Appendix 1603.D.1 to Annex 1603 to the NAFTA. The Society
noted that most plant pathologists have either a Master's degree or a
Ph.D. and are, therefore, professionals. After much negotiation and
consultation, the Chapter 16 TEWG agreed that the occupation of plant
pathologist should be included to the list of professions contained in
the Appendix. This rule proposes to include the occupation of plant
pathologist to the Appendix in Sec. 214.6(c) as a footnote to the
occupation of biologists. The NAFTA parties recognized that the
occupation of plant pathologist should be referenced in the Appendix in
the form of a footnote to the occupation of
[[Page 79322]]
biologist because the occupations are similar in educational
requirements and duties.
What Is the Effect of Adding Actuaries to and Including Plant
Pathologists on the Appendix 1603.D.1?
Including a footnote for plant pathologists and adding actuaries to
the Appendix will make it easier for individuals employed in these
professions in one NAFTA party to obtain admission to the territory of
another NAFTA party. Since the addition and inclusion of these
occupations facilitates the temporary entry of individuals employed in
these professions, it comports with one of the general principles
described in Article 1601 of the NAFTA.
Why Is the Service Proposing To Change the Licensure Requirements
for Citizens of Canada Seeing Admission as a TN Alien?
The Service's current regulations, promulgated after the NAFTA went
into effect in 1994, require the presentation of a license as a
condition for admission of a Canadian TN to the United States.
To ensure that the Service's regulations implementing Chapter 16
are in conformity with the obligations of the United States under the
agreement, this rule proposes to remove Sec. 214.6(e)(3)(ii)(F) that
requires the presentation of a license before a Canadian citizen can be
admitted to the United States as a TN nonimmigrant alien.
However, Canadian TN nonimmigrant aliens will still be required to
obtain the appropriate state license to practice their profession in
the United States. The Statement of Administrative Action provides
that, ``Nothing in NAFTA will permit Mexican or Canadian professionals
to practice a licensed profession in the United States, even on a
temporary basis, without meeting all applicable state licensing
criteria and receiving such a license * * *.''
Does This Proposed Regulation Affect the Licensure Requirements for
Mexican TN Aliens?
No, the Service is not proposing to remove the licensure
requirement for Mexican TN nonimmigrant aliens described in
Sec. 214.6(d)(2)(iv). The NAFTA imposes several additional requirements
on Mexican citizens seeking TN classification in the United States for
a period of time not to exceed ten years (December 31, 2003), [See
Annex 1603.D.5.of the NAFTA]. These requirements were described in
section 341 of the U.S. Statement of Administrative Action that was
presented to Congress at the time of enactment of the NAFTA
Implementation Act [Pub. L. 103-182].
One of the additional requirements is that the entry of a citizen
of Mexico, as a TN nonimmigrant, is subject to the petitioning
requirements of section 214(c) of the Immigration and Nationality Act
and the Service's implementing regulations found in Sec. 214.2.
Therefore, a U.S. employer seeking the services of a Mexican TN alien
must file a Form I-129, Petition for Nonimmigrant Worker, with the
required supporting documentation which includes any required state
license. The Service is not proposing to remove the licensure
requirement for Mexican citizens because the petition requirement
remains in effect at this time.
What Is the Effect of Changing the Licensure Requirements?
This change will have no effect on the health and welfare of United
States citizens who may be impacted by the alien's engaging in
professional activities in the United States. In those jurisdictions
where a particular profession or occupation requires licensure, State
or Federal law will continue to require the alien's employer to insure
that the alien has the proper license before the alien commences
employment. In this regard a Canadian TN alien will be treated in the
same fashion as a United States worker. While this rule will ensure
that the Service will not require the alien to present the license to
be admitted to the United States, the alien will still have to have a
license to work in the United States consistent with Chapter 12 of the
NAFTA.
It must be remembered that a TN alien is admitted into the United
States for the purpose of engaging in business activities at a
professional level. Like other aliens who fail to maintain the terms
and conditions of their nonimmigrant status, a TN alien who fails to
engage in activities at a professional level for the specified employer
may be amenable to removal under section 237(a)(1) of the act, or
ineligible for an extension of temporary stay under Sec. 214 or a
change of nonimmigrant status under section 248 of the Act.
The TN classification is not the appropriate classification for
obtaining training or meeting professional licensure requirements in
the United States. Such activities are consistent with the B-1
nonimmigrant classification. As noted earlier, the NAFTA provides for
the admission of B-1 nonimmigrant aliens.
What Technical Changes Is the Service Making in This Rule?
This rule also proposes to remove Sec. 214.6(1). That section
discusses the transition period for Canadian citizens who were admitted
to the United States under the former United States-Canada Free Trade
Agreement (CFTA). The regulatory provision is no longer applicable
because of the passage of time since the entry into force of the NAFTA
that subsumed the CFTA.
In addition, this rule proposes to change all references to the
``Northern Service Center'' in the regulation to the ``Nebraska Service
Center,'' the current name of the facility.
Finally, this rule proposes to remove the term ``diplomas, or
certificates'' from the regulation at Sec. 214.6(d)(2)(ii) and at
Sec. 214.6(e)(3)(ii) since these regulatory cites are inconsistent with
footnote number 3 and 4 to the appendix. The footnotes clearly require
that diplomas and certificates must be issued in Canada or Mexico,
respectively. Therefore, diplomas and certificates received by an alien
from another country would not establish the alien's eligibility for TN
classification.
Does This Rule Have Any Impact on Any of the Service's Recently
Published Interim or Proposed Rules?
This rule does not have any affect on the Service's recently
published interim rules relating to certificates for health care
workers or any regulation dealing with nonimmigrant aliens. This rule
deals solely with the NAFTA.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. Although a small number of entities maybe affected by
the changes proposed in this regulation, actuaries and plant
pathologists affected by this rule will benefit by their ability to
transfer to the United States and work in their chosen field in a more
expeditious fashion.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions
[[Page 79323]]
of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
(OMB) has waived its review process under section 6(a)(3)(A).
Executive Order 13132
The regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Immigration and Naturalization Service
has determined that this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
This proposed rule does not impose any new reporting or
recordkeeping requirements. The information collection requirements
contained in this rule were previously approved for use by the Office
of Management and Budget (OMB). The OMB control numbers for this
collection are contained in 8 CFR 299.5, Display of control numbers.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR Part 2.
2. Section 214.6 is amended by:
a. Adding the profession of ``Actuary'' immediately after
``Accountant'' to the appendix in paragraph (c);
b. Adding footnote 1a to the table of footnotes;
c. Revising the profession ``Biologist'' under the heading
``Scientist'' in the appendix to paragraph (c);
d. Revising the term ``Northern Service Center'' to ``Nebraska
Service Center'' in paragraphs (d)(1) and (h)(1);
e. Removing the term ``diplomas, or certificates'' from paragraph
(d)(2)(ii), third sentence;
f. Removing the term ``licenses,'' from paragraph (e)(3)(ii),
introductory text, third sentence;
g. Removing the term ``diplomas, or certificates'' from paragraph
(e)(3)(ii), introductory text, fourth sentence;
h. Adding the word ``and'' at the end of paragraph (e)(3)(ii)(D);
i. Removing the ``; and'' at the end of paragraph (e)(3)(ii)(E),
and adding a period in its place;
j. Removing paragraph (e)(3)(ii)(F): and by
i. removing paragraph (1), to read as follows:
Sec. 214.6 Canadian and Mexican citizens seeking temporary entry to
engage in business activities at a professional level.
* * * * *
(c) * * *
Appendix 1603.D.1 (Annotated)
* * * * *
--Actuary-Baccalaureate or Licenciatura Degree in Actuarial Science; or
satisfaction of the necessary requirements to be recognized as an
actuary by a professional actuarial association or society.\1\a
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\1\a A professional actuarial association or society means a
professional actuarial association or society operating in the
territory of at least one of the Parties.
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* * * * *
--SCIENTIST
--Biologist (including Plant Pathologist)--Baccalaureate or
Licenciatura Degree.
* * * * *
Dated: December 13, 2000.
Mary Ann Wyrsch,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-32281 Filed 12-18-00; 8:45 am]
BILLING CODE 4410-10-M