TN got denied Twice

Hello everyone, this is the 2nd time in a row that the CBP denied my TN application. (Details below). I really wish someone can provide me some legal advice now.

The actual position that the company offered is Application software engineer, but my title has been changed to computer system analyst by the company immigration lawyer.

1st time:
The CBP searched the company website and couldn't find the opening for the computer system analyst. He looked at my job duties and asked what I will be really doing for the company. I told him honestly. The CBP told me there is no need to change the title and it is completely OK to work as an engineer without an engineering degree (I have a degree in Science major in computer science). He denied the TN.

2nd time:
one day later, I received a corrected version of the offer letter that states my title will be Application Software Engineer. A different CBP was processing my file and this time, he asked me to write down my job duties will be. so I wrote it down. long story short, he took my files and went back discussing with the yesterday's CBP officer. Then he denied my application AGAIN. This time, the reasons are:
1) from the job duties I wrote, it is certainly a software engineering job. it is not computer system analyst.
2) The title (contains engineer) requires an BS in "engineering" degree or certificate in which I don't have any.

I tired to convince him that both computer science or software engineer degree could mostly qualify for the software engineer position, but no use. He scanned my fingers and took my photos and told me I will be denied from entering the US unless this TN issue gets resolved.

I live in Vancouver, does anyone know any good immigration lawyer around the border? Thank you all in advance.

Is this your first TN or have you successfully obtained one in the past?

Honestly, I know there is a lot of confusion in what is considered acceptable for some of the systems analyst/IT stuff. If you are really serious about going to work for this company despite the 2 denials, you should absolutely contact an expert in Nafta Law to help you. I know you said you were looking for someone close to Vancouver - I do not know of anyone, but time after time I hear very positive references to a lawyer by the name of Grasmick. I am hoping that someone else will pop on and give their take on things (hopefully Anelson, as he/she is a wealth of knowledge on TN's and if has given advice/thoughts that have helped steer hundreds of us in the right direction).

Best of luck to you!

-- Wed Jun 09, 2010 9:41 am --

Also, did you visit a POE by driving or through Pre-flight inspection? Sometimes I find that the PFI can be a little stricter than the actual border land crossings....but ultimately, they all follow the same regulations and the outcome would be the same (or at least, SHOULD be the same) anywhere you go...

The CBP told me there is no need to change the title and it is completely OK to work as an engineer without an engineering degree (I have a degree in Science major in computer science). He denied the TN.

This is incorrect. A TN applicant entering under any Engineer category is a degreed Engineer, nothing else. So the first inspector had it wrong.

You are making this more complicated than you have to. You are a CS major, so you are a Computer Systems Analyst. Your lawyer was correct in changing your category to that of a CSA.

You need to work on integrating the DOT (Dictionary of Occupational Titiles) of a Software Engineer into your actual duties as an Application Engineer, preferably with legal help. However, your entry category is still a CSA.

You really need to get this correct on the next attempt otherwise the consequences may be dire if you encounter a rougher inspector. Make sure you have it right next time going to the border.

Some of the Buffalo area lawyers will escort you right to the port of entry to make sure your application goes well but I am unsure of any reputable lawyers out west and what their practices might be in terms of personal representation at the border.

Thank you MC and littlebird. I have been doing some researches myself last night and I am confused by what the CBP told me and the statements from the OOH specifically the computer software engineer page.

The OOH does not explicitly list the engineering degree as a requirement for SW engineering. So I went ahead and and checked out chapter 16 from NAFTA agreement. It states minimum requirement for the engineer profession is "Baccalaureate or Licenciatura Degree; or
state/provincial license".

In addition to that, I have got 3 successful TNs in the past from 2 other company, two times with software engineer title and one time with computer system analyst title. Yes, it is very possible they didn't catch it before, but where is the official document stating engineering profession needs to have a engineering degree? Or is it an interpretation by the CBP that believes engineer jobs require engineering degree?

-- Wed Jun 09, 2010 1:06 pm --

Btw, to answer littlebird's question, I tried to get the TN by driving to the border (Pacific I5) this time. There was a huge line up and the CBP did not seem to give too much patience which I totally understand.

In addition to that, I have got 3 successful TNs in the past from 2 other company, two times with software engineer title and one time with computer system analyst title. Yes, it is very possible they didn't catch it before, but where is the official document stating engineering profession needs to have a engineering degree? Or is it an interpretation by the CBP that believes engineer jobs require engineering degree?

This is not surprising as CBP has been known for easily getting an adjudication wrong but really, you should be requesting status as an Analyst not an Engineer.

The requirement for the degree being in the field has been forged out through many years of case law which is a complex area. In addition, many years ago, INS issued directive memos to the Class A ports of entry specifying that the degree presented for TN must be in the field.

Thus a Software Engineer presents an Engineering degree, a Chemist would present a Bachelor of Science degree in Chemistry, and a CSA would show a Computer Science degree.

By the way, INS (back then) issued a memo directive itself several years ago recognizing that Software Engineer is a valid NAFTA Occupation but the criteria for admission is a related degree. Only a very good lawyer would even remember this.

Thank you MC for the great explanation and I think I can pretty much forget about re-applying TN with any engineer title. But this is what I am worried the most.

On my first TN denial, my title was computer system analyst. The CBP already confirmed the company does not have any CSA job opening posted on the company website. They were suspecting and asked if the actual position is application software engineer and this was later confirmed in my 2nd TN denial.

You were right I made it more complicated than it should be, and any attempt for TN using CSA will make the whole application even more suspicious to the CBP.

It seems to me TN is no longer my option to re-enter the US.
However, all my stuff are still there in Calf. The CBP told me they will not grant my entry if I do not get this TN visa issue resolved. What can I do now to get back to the US to move my stuff?

This is ludicrous. Any website can never be expected to be completely updated and accurate. If that were the case, the world would be perfect and we know it is not. What about the USCIS system with millions of people in the system and updates are slow to materialize much to the despair of those immigrating to the U.S.

What about internal hidden positions that would not even be advertised on a corporate website? These guys are pretty unbelievable to assume such definitive conclusions based upon a website.

I would approach the DHS at the border and request a B-2 entry to come in and wind down your affairs. They should allow that without too much of an argument.

Don't be so hard on yourself. It is a conceptual immigration system and not easily understood sometimes. You are undoubtedly a CSA but they maybe caught a whiff of some engineering component in your duties which caused them to refuse you.

HI MC, I am hoping you can give me some insight on this: Earlier you mentioned in my post that:
"By the way, INS (back then) issued a memo directive itself several years ago recognizing that Software Engineer is a valid NAFTA Occupation but the criteria for admission is a related degree. Only a very good lawyer would even remember this."

So, if the software engineer is a recognized profession by NAFTA, and the OOH book indicates the education requirement for this occupation is computer science, software engineer or mat, why did the inspector denied the TN based on my degree?

I am currently working at company A on TN which will expire soon. Got a offer from company B and got TN for B 10 days ago. After got TN for B, had another offer from company C. As I prefer to work for company C, yesterday I went to border(Peace Arch) to apply TN for C. The officer asked if I have ever worked for B, I answered No. The officer took the I-94 for company B and also denied TN for company C with the reason of incomplete TN letter. He said that the letter didn't have starting/end dates(just period not enough), duties should be more detail and pay should be more detail (the letter just has hourly rate).

My original plan was that I would work for B if they did approve TN for C and I got TN for C then I won't work for B. All positions are under Software Engineer.

What should I do next? Any advice, suggestion would be highly appreciated.

Thank you so much!

You must resubmit additional evidence to overcome the basis of the refusal. In your scenario, your letter must show more complete information including start and end date for the TN Status, more detailed job description and duties, and an annual remuneration stated.

You really need to address those issues before re-applying once again at the border or a third denial may crush you.

Software Engineer is a recognized category so this is really just a routine application provided all of your details are in order and your application is sound.

-- Sat Mar 19, 2011 6:37 pm --

So, if the software engineer is a recognized profession by NAFTA, and the OOH book indicates the education requirement for this occupation is computer science, software engineer or mat, why did the inspector denied the TN based on my degree?

Well, mistakes do happen at the border, it happens all the time. Many years ago, INS (Immigration and Naturalization Service) released a memo to the Class A ports of entry acknowledging that Software Engineer is a recognized NAFTA Profession. I suspect some of the officers adjudicating those petitions may not even be aware those directives were issued including the whereabouts of that documentation.