NAFTA and the Management Consultant Dilemma
It is a common scene, repeated over and again at the various U.S.-Canada border posts. A young Canadian executive approaches an officer of the United States Department of Homeland Security, and hands her a small pile of documents prepared for him by the HR Manager of his prospective employer.
“I’m here to apply for a TN visa,” declares the applicant.
“In what category?”
“Uh… Management Consultant.”
The immigration officer glances at the documents with an air of visa consultancy distaste and tells the applicant to take a seat. Thirty minutes later the officer calls the applicant into an office and subjects him to a grueling hour of cross-examination.
“What is this?” demands the officer, shoving a piece of letterhead in his face.
The applicant peers at the document. “It’s a letter from the company that wants to hire me.”
“It’s too short and doesn’t describe a management problem,” says the officer, tossing aside the letter and pulling out another document. “How about this?”
“That’s my resume,” answers the applicant, his face turning red.
“Uh, huh…” says the officer. “Just what are you trying to pull here?”
“What do you mean?” asks the applicant.
“You’re no Management Consultant. You don’t have any management experience.”
And so on…
The result: Denial of the TN application. The reason: Either the position or the applicant do not qualify for the Management Consultant designation. The consequences: Lost time, lost money, loss of a potentially valuable employee, loss of a lucrative job opportunity, and humiliation.
The Management Consultant Category – An Incorrectly Perceived Loophole
As most people involved in HR Management are aware, the North American Free Trade Agreement (NAFTA) has simplified the placement of certain Canadian professionals into high-demand jobs in the United States. As long as the candidate fits into the cookie-cutter professional categories listed in Appendix 1603.D.1 of the NAFTA, the interested company is able to avoid the longer processing times and higher fees associated with the H-1B visa.
Most of the NAFTA categories require at least a bachelor’s degree. And as long as the candidate can prove he or she has the required education, approval of a TN visa is virtually assured. For example, a Canadian Engineer with a bachelor’s degree should have no trouble qualifying for a position as an Engineer with a U.S. company.
A few NAFTA categories, however, allow for the substitution of work experience in place of a bachelor’s degree. One of these is the Management Consultant category, which allows “five years of experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement” to substitute for a missing bachelor’s degree.
Unfortunately, the Management Consultant category is incorrectly perceived by many HR Managers as a sort of “loophole” in the immigration law which allows them to place well-qualified candidates who have not completed a formal degree program, but who are otherwise qualified for the position offered because of their experience in the subject field.
Thus, HR Managers frequently send non-degreed persons such as computer professionals with no management experience to the border, allegedly to accept a job in the States as a “Management Consultant”; or they send non-degreed candidates with management experience to the border, with the intent of placing them in long-term management positions with U.S. companies. Applications such as these are invariably doomed to failure.