• TN's for Computer Professionals
  • April 7, 2010
  • Law Firm: Serotte Reich Wilson, LLP - Buffalo Office
  • I.          Introduction

     

    “I do not fear computers.  I fear the lack of them.”—Issac Asimov

     

    Technology plays a critical role in stimulating economic growth, which in turn, creates a huge demand for qualified workers to spearhead that growth.  U.S. companies have long been recruiting top high-tech talent from north of the border in order to compensate for the shortage of computer professionals in this country.  Set against today’s competitive global marketplace, I think most U.S. companies would take Asimov’s stance against technophobia one step further—I do not fear computer professionals.  I fear the lack of them.

     

    The North American Free Trade Agreement (NAFTA) can serve as an important vehicle to qualify Canadian computer professionals to work in the U.S.  The importance of understanding how NAFTA pertains to computer professionals is not only important because of their high demand, but also because of the inevitability of the rapid depletion of H-1B numbers each fiscal year.  NAFTA should be viewed as a preferred strategy, especially based on time and control issues, rather than a fall back measure after INS announces that no more H-1B numbers exist. 

     

    This article discusses important strategic considerations when processing computer professionals under NAFTA.  The goal of this article is to provide guidance to practitioners on how to utilize TN’s and avoid any unnecessary complications.[1]

     

     

     

     

     

    II.        Computer Systems Analyst

     

    “Computers do not solve problems, they execute solutions.”—Laurent Gasser

     

                A.        Position Duties

     

    The most obvious option for a computer professional under the list of TN professional occupations in NAFTA is Computer Systems Analyst.  The Occupational Outlook Handbook (OOH) describes a systems analyst as someone who studies business, scientific, or engineering data processing problems and designs new solutions to resolve those problems.  The most recent NAFTA Handbook provided by INS Headquarters Inspections describes systems analysts as information specialists who analyze how data processing can be applied to the specific needs of users and who design and implement computer-based processing systems.  The Dictionary of Occupational Titles, which uses the title Computer Systems Hardware Analyst, portrays the position as someone who “analyzes data processing requirements to plan data processing system that will provide system capabilities required for projected work loads, and plans layout and installation of new system or modification existing systems¿”[2]  Simply put, a systems analyst is someone who solves a problem by designing solutions for the computer to execute.   

     

    For practitioners who are “computer illiterate” or uncomfortable with computer terminology, the OOH and DOT are excellent starting points for understanding general systems analyst activities.  I also find the Internet a helpful resource for finding descriptive profiles of a systems analyst.  If the U.S. company does not already have a position description available, many companies post openings on the web that can offer guidance when finalizing a position’s responsibilities.

     

    The duties of a Computer System Analyst must be carefully presented to avoid unnecessary problems at the Port of Entry (POE).  The INS Inspectors Field Manual explicitly reads that the Computer Systems Analyst category “does not include programmers.”[3]  The INS Handbook notes that while systems analysts do engage in some programming, the TN category has not been expanded to include programmers.  Even though the educational and training requirements of programmers has risen due to the ever-increasing sophistication of programming responsibilities, they still ring the death bell of denial for TN applications.  Therefore, any inclusion of periphery or incidental programming activities should be eliminated to avoid any confusion. 

     

    With the technical advances in programming, and the perpetual innovations and shifts in computer positions, it is important to determine the functions of a Computer Systems Analyst regardless of title.  In fact, I have come across many companies that have created a hybrid position known as a programmer-analyst, where the person is responsible for both systems analysis and programming.  In cases such as this, it is important to determine whether the focus of the position is systems analysis or programming.

     

     

                B.        Requirements

     

    The Computer System Analyst occupation requires a baccalaureate or post-secondary diploma/certificate and three years experience.  While a degree or diploma in computer science is a strong qualification, there are other programs of study that would satisfy the minimum education requirements.  The OOH lists computer science, information science, computer information systems, and data processing as backgrounds that employers seek.  In addition, many programs consist of a strong focus in computer coursework, including mathematics, engineering, the sciences, and even many liberal arts fields.  Our office handled a case where the individual received a degree in geography and was able to qualify as a Computer Systems Analyst because of the numerous courses in computer science and information technology that were included in the program.

     

    Also, while it is a requirement that post-secondary diplomas/certificates consist of 2 or more years of studies, it is important to examine the individual’s transcripts carefully.  Our office was able to rehabilitate a case where an individual was denied entry because his diploma and transcripts showed only one and a half years of studies.  However, a closer review of the transcripts revealed that he had earned over 2 year’s worth of credits in that time period.  The Free Trade Officer (FTO) recognized the school and program and confirmed that it did in fact constitute a post-secondary diploma.    

     

     

    III.       Other Options Besides Computer Systems Analyst

     

    While Computer Systems Analyst is the only exclusive computer TN profession, NAFTA includes a wide range of TN professional computer-related occupations.  One of the biggest mistakes a practitioner can make is to see that a job offer is in a computer-related position and automatically label the application as a Computer Systems Analyst.  It is important to be able to distinguish between the multitude of various computer positions and identify the appropriate TN category.  In fact, recognizing the appropriate TN occupation is probably the most important stage of preparing a TN application because when you are trying to solve a problem, it is always helpful to know the solution.

     

     

                A. Software and Hardware Engineers            

     

    “How many software engineers does it take to change a light bulb? 

    None, that’s a hardware problem.”

     

                            1.         Applicability

     

    I have found that hardware engineers are not too controversial because they are closely related to the more traditional discipline of electrical engineering.  Software engineers, to the contrary, have been one of the most highly scrutinized and least understood occupations since NAFTA’s inception six years ago. 

     

    Appendix 1603.D.1 includes the occupation of “Engineer” within its list of professions.  However, Appendix 1603.D.1 provides no further guidance as to what disciplines of engineering fall under this occupation, and that has led to mercurial adjudications and denials at various POE’s. 

     

    In 1995, Jacquelyn Bednarz, then the Chief, Nonimmigrant Branch Adjudications, provided an opinion letter in order to alleviate confusion surrounding this issue.  In her letter responding to whether software engineer is included under the parameters of NAFTA, Ms. Bednarz stated, “Accordingly, it appears that an individual engaged in business activities as a “software engineer” at the professional level which requires a baccalaureate or licenciatura degree or state/provincial license would qualify under the profession of “engineer” as listed in Appendix 1603.D1 to Annex 1603 of the NAFTA.”[4]

     

    While many practitioners continue to assert that software engineer falls under NAFTA, and while Ms. Bednarz’s opinion letter confirms that assertion, many applicants still encounter resistance when applying for a software engineering TN. 

     

    This resistance is frustrating for both employers and Canadian applicants, and most likely served as a catalyst for a recent memorandum from the Western Regional Office.  In a memorandum dated July 24, 2000 from Mr. Michael D. Cronin, Acting Executive Associate Commissioner, Office of Programs, the issue of software engineers was once again addressed.  The memorandum, titled “Guidance for Processing Applicants under the North American Free Trade Agreement (NAFTA)”, provides further direction on whether the occupation of software engineer is included under NAFTA.  Mr. Cronin states, “Since the appendix doesn’t specify certain specialties, the three NAFTA partners interpret this to mean that all engineering specialties are included.  Accordingly, an individual engaged in business activities as a  “software engineer” at a professional level that requires a baccalaureate or licenciatura degree or state/provincial license may qualify under the profession of  “engineer” under the NAFTA.”[5] 

     

    This memorandum, offered as guidance to all POE’s, should irrefutably resolve any issues surrounding the legitimacy and applicability of software engineering TN applications.  Therefore, rather than acquiesce to inspectors who claim that the position is more suited for an H-1B, practitioners should advocate their client’s right to be categorized as a TN.

     

                            2.         Position Duties

     

    Like any TN occupation, the OOH, DOT and Internet are invaluable resources when breaking down the duties of a software engineer.  The OOH describes a software engineer as someone involved in the design and development of software systems for control and automation of manufacturing, business, and management processes.  I have found that many software engineers perform general duties that include developing and designing new software products, enhancing existing software products, conferring with hardware engineers to evaluate the interface between hardware and software, testing and debugging software products, and preparing end user manuals and literature.  Software engineering duties continue to evolve though, and the Internet documents this evolution faster than both the OOH and DOT.

     

    When preparing a software engineering TN letter, a good description of the company and its software products can often help set the stage for the software engineering duties the individual will perform.  While probably the least important aspect of any TN letter, I sometimes use the company description to set the foundation for the theory of a case.

     

                            3.         Requirements

     

    The software engineer position requires a baccalaureate or licenciatura degree.  Many universities do not have programs that offer a “software engineering” degree, so you should once again look at the individuals program and transcripts to see if there is a logical nexus.  The memorandum mentioned above from Michael Cronin reads that a “degree should be in the field or in a closely related related field.  Officers should use good judgement in determining whether a degree in an allied field may be appropriate.”[6] In addition, the OOH reads that software engineers are likely to have a degree in computer science.  However, other programs such as mathematics may also qualify someone as a software engineer.  In fact, the OOH notes that the majority of those with a bachelor’s or master’s degree in mathematics who work in private industry do so not as mathematicians, but in related fields such as computer science. Therefore, there is room for creativity when presenting a case where the individual’s degree is not exactly in computer science. 

     

     

                B.        Scientific Technician/Technologist

     

    “Beware of the Sci-Tech who carries a screw driver.”

     

    Appendix 1603.D.1 specifies that in order to qualify as a Scientific Technician/Technologist, the applicant must possess (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any those disciplines to basic or applied research.  Logic dictates that if software engineering is recognized as an engineering discipline for TN purposes, then a Sci-Tech in support of a software engineer or hardware engineer must also qualify as a TN occupation.

     

    Sci-Tech’s are particularly useful with computer professionals because many individuals receive post-secondary diplomas/certificates rather than full-fledged bachelor degrees, but are working in support of degreed computer engineers.  Also, many of these individuals do not perform systems analysis work, so they could not qualify under that occupation.

     

                            1.         Position Duties

     

    The Sci-Tech option for computer professionals is not for computer technicians, programmers, technical support assistants, or other lower level computer-related positions.  While Sci-Tech’s may have strong programming skills, they are more concerned with troubleshooting and solving programming problems rather than with simply writing the code for the programs. 

     

    Similar to a Sci-Tech in any other discipline, the Sci-Tech for a computer professional is reserved for individuals who have a strong background in computer engineering theory, and who are able to apply principles of computer engineering to help develop, troubleshoot and resolve computer engineering problems.  When analyzing a case, it is important to pinpoint the specific areas in which the Sci-Tech will support a computer engineer, such as development, troubleshooting, interfacing issues, or resolving technical bugs.  However, neither the type of employer or area of technology should affect the merits of the application.  Our office has handled Sci-Tech’s for computer professionals for hospitals and insurance companies, as well as in the fields of manufacturing and gas pipelines.

     

    One of the more common issues I have encountered when presenting a Sci-Tech computer professional is the perception by inspectors that the occupation was chosen because the individual did not meet the requirements of a Computer Systems Analyst.  This is especially true when the TN was originally misdiagnosed and presented as a Computer Systems Analyst, and the inspector feels the applicant is trying to circumvent NAFTA’s provisions.  The TN paperwork should be clear that the individual is actually doing Sci-Tech work rather than systems analysis, and the applicant should be prepared to explain and substantiate that claim.

     

                            2.         Requirements

     

    The requirements for a Sci-Tech computer professional are the same for any Sci-Tech application—possession of theoretical knowledge and the job duties involve applying that theoretical knowledge.  While a Sci-Tech must have some theoretical knowledge of the discipline, they should not be held to the same standards as a degreed engineer.  Evidence of some post-secondary schooling in computers coupled with industry experience should suffice to constitute theoretical knowledge.

     

    You need to include evidence of the individual’s theoretical knowledge, whether it is through school, work experience, or any other documentation, that proves this claim.  Transcripts and reference letters from previous employers are good sources of documentation to prove theoretical knowledge.  The Inspectors Field Manual also provides excellent guidance with this requirement, noting that “supporting documents could be an attestation from the prospective U.S. employer or the Canadian employer¿”[7]  Our office has found that an attestation from the degreed engineer the applicant will support, that confirms that the applicant possesses the required theoretical knowledge, is excellent persuasive evidence.      

     

    A Sci-Tech for a computer engineer should be packaged like any other Sci-Tech. You also need to include the education credentials of the degreed engineer the Sci-Tech will work with and support.  While a degree in computer engineering or software engineering is preferable, many software engineers have degrees in other areas, such as computer science or mathematics.  Once again, you need to use your lawyering skills and judgement to see if the case can be prepared as a Sci-Tech.

     

                C.        Management Consultant

     

    “Those who can, do.  Those who can, but wish not to, consult.”

     

    The dependence of our society on technology has created the demand for consultants whose niche is computer information systems and technology.  Many knowledgeable and experienced computer professionals have chosen the path of consulting rather than performing hands on technical duties.  In fact, as a result of business’ reliance on computer systems for survival, many management consultant firms have established computer technology divisions.  Consequently, although Management Consultant is a highly scrutinized occupation, it may be the perfect fit for some computer professionals.

     

                            1.         Position Duties

     

    The INS Inspector’s Field Manual describes a Management Consultant as someone who “provides services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization, and operation.  Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities.”[8] 

     

    Management Consultants should not be involved in the day to day operations of a company, but rather should consider themselves as separate from its operations and looking down on its activities to identify areas for improvement.  Management Consultants in technology generally recommend strategies to businesses to implement computer systems and information technology that improve their efficiency and productivity.   The basic purpose of a consultant is to advise on how to increase efficiency, productivity and profit.  Many companies are realizing that these goals can all be accomplished through improved technology.

     

     

     

     

     

                            2.         Areas of Consulting in Technology

     

    More and more businesses are discovering the upside to their bottom-line from investing in technology. While companies realize they must adapt to the technological innovations that will improve their business, they do not know how to actually implement those changes. I have seen many consultant firms and independent consultants who specialize in advising how to utilize an ERP (Enterprise Resource Planning) package—a software package that controls all aspects of a business enterprise, including financials, accounts payable, distribution, logistics, and resource planning.  In addition, I have seen the emergence of consultants who advise companies on establishing e-commerce and web based operations. In theory and practice, the different areas a consultant could specialize in parallels society’s most recent advancements in technology.

     

    Unfortunately, I have also reviewed denied TN applications that were presented as Computer Systems Analysts or Software Engineers when the individual was really serving as a consultant.  Our office reviewed one case where the individual was presented and denied as a Computer Systems Analyst when the applicant’s duties involved reviewing a company’s operations and recommending ERP solutions to optimize business critical issues such as supply chain management and sales planning and forecasting.  The better fit for this applicant was as a Management Consultant.  Once again, I strongly believe that identifying the proper TN occupation is the most important aspect of preparing a TN for a computer professional.  A large percentage of the denied TN’s I review were refused not because the applicant’s credentials or the job itself, but because the application was presented with the wrong TN occupation.   

     

                            3.         Requirements

     

    The Management Consultant occupation requires an individual to possess a baccalaureate or licenciatura degree, or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement. 

     

    Consultants probably have the most diverse backgrounds and credentials of any TN’s I have encountered.  The fact that it is only one of two TN categories that do not absolutely require any post-secondary education is a big reason why inspectors review them with a critical eye.  Although the applicant does not need any post-secondary education, you must present evidence to show that he/she possesses at least five years experience as a consultant or in a related field to the consulting agreement.  While the requirements of a Management Consultant offer an alternative to education credentials, the burden is still on the applicant to prove they qualify.  Reference letters from the applicant’s previous employers detailing dates of employment and duties performed are an effective way to meet this burden.  I also find it useful to have the previous employer offer an opinion on how the applicant’s previous experience provides a basis for consulting.

     

                D.        Mathematician

     

    “From the intrinsic evidence of his creation, the Great Architect of the Universe now begins to appear as a pure Mathematician.”¾James Jeans

     

    Like many things in this world, we would not have computers without the basic foundation and scientific principles of mathematics.  The two are intimately related and form the basis for interdisciplinary research through mathematical  models, statistics and operations analysis in all types of fields.  Not only does mathematics play a critical role in computers, but computers now play a critical role in modern mathematics.  Many mathematicians use computers to conceptualize their work, and this symbiotic relationship composed of interactive applications should not be ignored when determining an appropriate TN category for a computer professional.

     

                            1.         Position Duties

     

    It is not an editorial coincidence that the section on mathematicians is located directly after computer professionals in the OOH.  It notes that mathematicians use computers extensively to analyze relationships among variables, solve complex problems, develop models, and process large amounts of data, and stresses that because mathematics is the foundation upon which so many other academic disciplines are built, the number of workers using mathematical techniques is many times greater than the number actually designated as mathematicians.  The duties of a mathematician are too varied to ever discuss, but it is important to remember this option when analyzing a case for a computer professional. 

     

                            2.         Application

     

    I have seen a case where Mathematician was the proper occupation for one computer professional.  The individual was rightfully denied by the immigration inspector as a Computer Systems Analyst because the duties of the position as presented involved implementing a software package to improve a company’s operational problems.  A further analysis of the position revealed that the individual was actually an Operations Research Analyst who was going to formulate mathematical and simulation models to define management and operational problems and develop a model on how to implement a software package to improve these areas.  The individual himself was not going to install the software, but the company that developed the software would handle that responsibility.  The position was a good fit for the occupation of Mathematician, and the person qualified because he had a Bachelor’s degree in Quantitative Methods.

     

     III.       Conclusion

     

    This article has outlined some important strategic and procedural steps that hopefully practitioners can use when preparing a TN for computer professionals.  The TN should be the preferred route for Canadians because it offers quick turnarounds and immediate adjudication, as well as more control for the attorney who can accompany the applicant at the POE.  While the new H-1B legislation was just enacted on October 17, 2000, expeditious handling is still a major factor for those who have never held an H-1B before and those who do not possess H-1B caliber credentials.  There are also many issues that still need to be resolved with the new H-1B legislation that may delay adjudications.  Lastly, there may also be an important cost/benefit factor for choosing the TN because its filing fee is only $56 compared to the H-1B’s filing fee of $1,110.  Whatever the reasoning, practitioners should be aware of the issues identified above in order to present a sound TN application.



    [1] Included with this article are model TN letters for a Computer Systems Analyst, Software Engineer, Scientific Technician-Computer Engineering, Management Consultant, and Mathematician.

    [2] Dictionary of Occupational Titles—DOT # 033.167-010.

     

    [3] See INS Inspector’s Field Manual (IFM) section on NAFTA TN Admissions.

    [4] Letter dated May 15, 1995 from Jacquelyn A. Bednarz, Chief, Nonimmigrant Branch, Adjudications to Edward R. Litwin.

    [5] Memorandum dated July 24, 2000 from Michael D. Cronin, Acting Executive Associate Commissioner, Office of Programs to all Regional Directors.  This memorandum can be found on AILA’s Infonet.

    [6] Id.

    [7] See INS Inspector’s Field Manual (IFM) section on NAFTA TN Admissions.

    [8] Id.