Impact of professional lice... | Lippes Mathias LLP

Impact of professional licences on TN applications

December 2, 2019 | Immigration Blog

TN (trade national) status is a U.S. work permit available to Mexicans and Canadians who have credentials for and a job offer in one of 63 environmental professional classifications. It was created by the North American Free Trade Agreement (NAFTA) that provides temporary employment in the United States for approved Canadian and Mexican citizens. To qualify for a TN to work in most of these professions, a baccalaureate degree is a minimum requirement.

However, licensure plays a part in a number of the classifications.

One category where applicants always require licences is a registered nurse. The only alternative is a licenciatura degree, which is generally a bachelor degree from Mexico. In order to obtain a TN as a registered nurse, the applicant must have not only a licence for the state in which she will work, but a health care worker certification. This is not a NAFTA requirement, but a requirement for all foreign nationals seeking to work in the U.S. as a nurse, physical therapist, occupational therapist, speech-

language pathologist, audiologist, medical technologist and technician, and physician assistant. It is an assessment that the foreign national’s credentials are adequate and is in addition to the licence.

There are a number of classifications for which an applicant can obtain a TN work permit on the basis of either education or licensure. They include lawyer, dentist, dietitian, pharmacist, doctor, occupational or physical therapist, veterinarian, engineer, forester, architect, accountant, and surveyor. In most instances licence holders in these professions will also have university degrees.

Sometimes a U.S. immigration officer will demand evidence of both education and licensure when assessing an application or petition for TN status. Because the requirement is stated in the alternative in the NAFTA regulations, this inquiry is inappropriate. In many instances these professionals will be engaging in professional but unregulated duties in the U.S., so no licence is required. Even if a licence is required, the authority to regulate professions is managed by the government of each state. It is not the role of the U.S. Department of Homeland Security to police these professions.

There are two professions for which licensing is a minimum requirement: actuary and psychologist.

Actuary falls under the profession of mathematician. Because the requirement for a mathematician is a baccalaureate degree, and the requirement for an actuary is a licence, both are minimally required for an applicant to file a successful application for an actuarial position.

The profession of psychologist is unique. The requirements are a licenciatura degree or a licence. For applicants from Canada, this means they will likely have to demonstrate licensure to file a successful application. A difficulty, however, is that some licensing boards do not use the words “psychology” or “psychologist” in their licence.

Here is a case study involving an applicant: Initially, the client had a job offer as a dance therapist. She successfully applied with her baccalaureate degree in psychology and master’s degree in dance therapy for a recreational therapist TN and began working. Her next job was as a counseling psychologist, and she successfully applied for a new TN as a psychologist with her state licence. The applicant was then hired for a new job, and applied for a new TN, once again as a psychologist. At the same adjudicating port of entry, the application was denied because her licence did not say the words “psychologist” or “psychology.”

Fortunately, her job description fit under the professional classification of social worker for which her psychology degree qualified her, and the TN work permit was issued.

When reviewing the TN professional classification list, it is important to identify the eligibility requirements for the specific classification and to apply them carefully. Be aware of instances when licensure is a minimal requirement as opposed to when it is simply an alternate requirement.

Eileen M. Martin is a partner and the immigration practice team co-leader at Lippes Mathias Wexler Friedman LLP. She has more than 20 years of experience in immigration law assisting clients from around the world with various matters including work permits, employment-based immigration, port- of-entry issues, visa issuance, family-based immigration, immigrant and nonimmigrant waivers and assessment of U.S. citizenship.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Disclaimer: The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from our firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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Eileen M. Martin
Partner | Team Co-Leader - Immigration | Team Leader - Canada-U.S. Cross Border