Applying under the Management Consultant professional category for a TN Visa – The Good, the Bad and the Ugly

The TN visa category, created by the North American Free Trade Agreement (“NAFTA”), allows Canadian and Mexican professionals to enter the United States for temporary employment purposes. NAFTA lists 62 qualifying professions (contained in Appendix 1603.D.1 of NAFTA) that are able to enter on a TN visa.

A TN visa is a great option for Canadian and Mexican professionals that fall into one of the 62 categories. However, for professionals that do not easily fit into one of the categories or do not have a Bachelor’s Degree or some specific form of certification, training, or licensure, a TN visa can be quite difficult to obtain. 61 out of the 62 professions require either a Bachelor’s Degree or some form of certification, training, or licensure.

The only listed profession that does not have a stringent degree, licensure or certification requirement is the Management Consultant designation. This more relaxed requirement – coupled with the fact that the Management Consultant designation is really the only profession that involves general business administration, business management, business analysis or related fields – makes the Management Consultant designation a very popular and consequently a highly scrutinized professional category for TN visas. The requirements, examples of duties, advantages, and disadvantages of pursuing the Management Consultant designation are discussed below.

Requirements for the TN Management Consultant Category

Requirement #1: The TN Management Consultant must have a degree or five years of relevant experience

A Canadian or Mexican national may be eligible for the Management Consultant designation if he or she possesses at least one of the following: 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.

Requirement #2: The TN Management Consultant cannot be filling a regular, full-time position

The TN management consultant guidance specifies that Management Consultant positions should generally not be for aliens filling regular, permanent positions. In effect, this makes it almost impossible for a TN application to be granted if the applicant will be employed as a W-2 employee. The guidance relating to TN management consultants acknowledges that petitioners will, at times, require a TN management consultant as a full-time employee; however in these cases the TN management consultant should be working for a consulting company, and should not be filling an existing position, replacing and employee in an existing position, or filling a newly-created permanent position.

Examples of Duties of a TN Management Consultant

The TN visa regulations do not specifically define the types of Management Consultant job duties that are permissible under this TN category. We can look to the U.S. Department of Labor’s Occupational Outlook Handbook (OOH) and the legacy INS’ NAFTA Handbook for guidance on the job duties for this occupation.

According to the OOH, Management Consultants (referred to also as Management Analysts in the OOH) generally advise managers on how to make organizations more profitable through reduced costs and increased revenues.

The legacy INS’ NAFTA Handbook describes the general duties of Management Consultants as providing services that 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.

Some examples of specific duties of a TN Management Consultant are as follows:

• Advise a company’s management team on the best approaches for the execution and management of project scopes and deliverables;
• Recommend tactics and strategies to improve a company’s performance and output;
• Evaluate and review current account activities and strategic planning, and review production requirements and cost/time factors associated with various company activities;
• Research more effective and efficient ways to provide a company’s operational improvement;
• Recommend innovative solutions to marketing and communication challenges;
• Conduct qualitative focus groups and quantitative research studies;
• Identify growth opportunities and profit strategies, reviewing costs, budgets and profit margins;
• Gather and organize information about the problem to be solved or the procedure to be improved;
• Interview personnel and conduct onsite observations to determine the methods, equipment, and personnel that will be needed;
• Analyze a company’s financial and other data, including revenue, expenditure, and employment reports;
• Make recommendations to management through presentations or written reports;
• Confer with managers to ensure changes are working.

The duties of the TN Management Consultant need to be tailored specifically to the situation and company’s needs, and the application should include the percentage of time to be spent on each duty.

Disadvantages of Applying for a TN Visa Under the Management Consultant Category

• TN Management Consultant should not be a W-2 Employee – Although in some cases it would be easier or more advantageous to hire the TN Management Consultant as a W-2 employee, in most cases they should be paid only as a 1099 Independent contractor.
• Application May Face a Higher Level Scrutiny – The TN Management Consultant designation is sometimes used as a “catch-all” for business professionals. As such, officers have been very strict in reviewing the job description of the TN Management Consultant position. Some officers will deny any application if there is any mention of duties involving the implementation of any of the TN Management Consultant’s recommendations to a company’s management.
• Term of employment granted may be less than 3 years – Although TN visas may be granted for up to 3 years, some officers have been known to refuse to issue three-years of TN status for those applying in this category, as they believe that management consultants need only 1 year to perform their consulting duties for a company. As such, it is best practice to include a contract between the TN applicant and employer that includes detailed information regarding the intended period of the Management Consultant’s services.

Additionally as with all TN visas, there are the following considerations:

• Unlike H-1B visas, the TN visa is not a “dual intent” visa. If someone in TN status pursues permanent resident status, they can have their status revoked.
• If the Department of Labor certifies that there is a strike or other work stoppage, the resolution of which would be adversely affected by the admission of the TN applicant, the application can be denied.

Advantages of Applying for a TN under the Management Consultant Category

Notwithstanding the difficulties of obtaining a TN visa under the Management Consultant category, there are still factors that make it the best option for applicants that meet the specific criteria outlined above. The advantages of a TN visa under the Management Consultant are as follows:

• TN visas are not subject to an annual cap;
• TN visas can be renewed indefinitely;
• There is no prevailing wage requirement for TN visas. (Although Management Consultants usually receive high remuneration for their services);
• Canadian citizens can obtain a TN visa at the border;
• A TN visa can be obtained by a person who has held H-1B status for the full six years without fulfilling the requirement of spending one year outside the US, a requirement that must be complied with before obtaining other nonimmigrant work visas.