It’s Official – TNs Can Study Incident To Their Employment
Last Friday night at 5:00 pm we received a desperate call from a TN client at the Toronto airport. He had been denied his TN visa despite his impeccable credentials and our careful drafting of the employer letter. He was applying under the Scientific Technologist category as a researcher. This position required his B.S. degree from McGill University in biochemistry. The part-time position in question was as a researcher for a start-up biotech in Ann Arbor, MI, which he wanted to take while pursuing his Masters’ degree in chemistry at the University of Michigan. He had completed all coursework for his Master’s and was completing his thesis during the evenings and on weekends.
The CBP official denied the TN because he was also studying. According to CBP, if he was studying he should be on an F-1 visa. To make matters worse, border protection would not respond to any questions without a new valid airline ticket, since by the time he was released, his flight was long gone, with no option for refunding the ticket.
It is well accepted USCIS policy that individuals on most non-immigrant visas such as the H-1B, H-4, L-1, L-2, E-1 and E-2 as well as the TN, are allowed to study “incident to their status.” Exactly what that terms means in terms of number of credits taken per semester, etc. seems to be undefined. The CBP official in question in Toronto indicated that she thought an on-line course might be fine. The official went back to confirm her decision with the supervisor who concurred that study was not allowed on the TN visa and who promptly confiscated my client’s packet of evidence. The officer then told my client that the only way they would issue him a TN visa would be if he completely severed all ties to the University of Michigan.
That’s when we received the call. We immediately pulled out our National Association of Foreign Student Advisors’ (“NAFSA”) Manual and found the following information:
“Study while in TN status: Regulations do not discuss whether TN professionals are allowed to study full- or part-time in TN status. However, it is generally accepted that TN’s can study as long as the study is incidental to their TN employment.”
That was a good start. We then drafted a letter on our letterhead explaining that there must have been a misunderstanding since our client was writing his thesis only as an adjunct to his TN professional employment and as such, he did not need an F-1 visa. We also had the employer rewrite the offer letter explaining this as well.
At 4:30 am on Saturday morning an email came in from the exhausted client who couldn’t sleep in his hotel room. Should he try again that day since he had rescheduled his flight. We decided that he should try again and speak to a supervisor and present our new materials. Plan B would have been for our client to withdraw from the University of Michigan since he really wanted the TN visa. We agreed that the prospects of success looked dim but that it was worth a try.
At 3:30 pm on Saturday our client called with the good news that he “got through” with a three year TN visa in hand. He also reported that when paying the visa fee he overheard two CBP officers expressing surprise that a TN could also study at the same time.
Moral of the story: sometimes what appears to be a straightforward application can quickly go wrong. Best to take copies of ALL relevant regulations and policy memos when asking for immigration benefits at the border. Many times the CBP officers simply need a quick primer on the law.