TN Visa Approval: Software Engineer; prior denial as Programmer
Background
The applicant, a Canadian citizen, had approximately six prior TNs under the Computer Systems Analyst category. She possessed a Master’s degree in Systems Science and a Bachelor’s degree in Computer Science.
Job Offer
The applicant had a job opportunity to work for a company that developed online and mobile payment authentication software. The position involved requirements gathering, building enhancements, testing, and managing production releases. Because of her prior experiences under the Computer Systems Analyst category, the applicant suggested to the company that the Computer Systems Analyst was the proper classification for the position. The company prepared a two page support letter, which the applicant presented for TN visa status as a Computer Systems Analyst at a land port-of-entry.
Inspection at Border
During the review of her application, the inspecting officer asked the applicant if the position involved any programming. The applicant informed the officer that it did. Despite the applicant’s attempt to explain that the position involved more than just programming, the officer denied her application stating that a programming position did not fall under the TN visa classification.
Analysis
Applicants seeking TN visa status as a Computer Systems Analyst who perform any programming duties are a favorite target of immigration inspectors. Many inspectors will deny a TN application where the applicant performs any programming. Inspectors base their denial on language from the legacy INS NAFTA Handbook (and elsewhere), which states that the Computer Systems Analyst “TN category has not been expanded to include programmers.” This type of decision ignores the actual text of the NAFTA Handbook, which states that some Computer Systems Analysts “will do some programming”, and also similar language in the U.S. Department of Labor’s Occupational Outlook Handbook (OOH). Based on the NAFTA Handbook and OOH, individuals performing solely programming duties may not qualify for TN visa status. If their duties are not limited to programming, but also involve professional level Computer Systems Analyst tasks as described in the OOH, then a case may be made for a TN.
After contacting our office for assistance with her application, we reviewed the duties of the position and determined that the position offered was more properly classified under the Software Engineer occupation. Although the position involved programming, its focus was on the entire software development life cycle for the company’s online and mobile transactions software platforms. These duties were consistent with those of a Software Engineer as described in the OOH. To overcome the denial we now had to: (i) explain the change in TN categories and (ii) establish that the applicant qualified for the TN despite performing programming duties.
Solution
Our solution involved working with the company and the applicant in the preparation of three primary documents: (i) an expanded employer support letter; (ii) a personal statement; and (iii) a legal brief. The expanded employer support letter added more details to the employer and its software products, the applicant’s job duties, and her qualifications. The personal statement explained the applicant’s prior denial, the misclassification of the position as a Computer Systems Analyst, and how the proposed position involved duties that went beyond solely programming.
The legal brief built upon the support letter and personal statement, and explained how the position offered was more properly classified under the TN category for Engineers, which according to legacy INS guidance included Software Engineers. The brief described how the proposed job duties corresponded with the description of a Software Engineer as found in the OOH. It also explained that like Computer Systems Analysts, Software Engineers may also perform some programming duties in the process of designing and developing software.
Border Review
Following an extensive review of the application materials at the port-of-entry, and an interview of the applicant, the inspecting officer approved the TN visa application for a three year period.