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716-854-7525

TN Visa Articles
TN Visa Approved for Netbackup Engineer Following Denial
September 16, 2011/ Brian D. Zuccaro, Esq.
The applicant in this case had a job opportunity for a Netbackup Engineer position where he would be responsible for the analysis, configuration, and
implementation of Symantec Netbackup infrastructure.

The applicant went to a land port-of-entry with a contract from his employer that listed the position as a Netbackup Engineer, and had a brief description of his
job duties. The inspecting officer refused to issue a TN because the officer did not see the position of Netbackup Engineer on the NAFTA Appendix list of
occupations eligible for TN visa status.

The applicant contacted our office for a review of his case. After learning more about the position offered, we concluded that the position was classifiable under
the Computer Systems Analyst TN category. The problem was that the initial application did not sufficiently show how the position fell under this category. We
prepared a more detailed TN application package for the applicant, which included a support letter that fully explained the applicants job duties with respect to
the Symantec Netbackup platform.

As part of the supporting documentation, we included decisions from U.S. Citizenship and Immigration Services (USCIS), which held that the job duties of a
position determine the appropriate occupational classification for purposes of NAFTA and not the job title. We also assembled documentation explaining the
Symantec Netbackup product, as well as materials that classified Symantec NetBackup Engineer positions as Systems Analysts. We also highlighted how the
duties involved in the position were comparable to those performed by a Computer Systems Analyst as described in the Occupational Outlook Handbook (OOH).

Following a review of these application materials and an interview at a land port-of-entry, the applicant was issued a TN under the Computer Systems Analyst
category.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------First, U.S. immigrations opinion that the TN visa classification does not allow managerial job functions is undermined by the specific inclusion of managerial
positions in the NAFTA Appendix (see, e.g. Hotel Manager and Range Manager). Second, under NAFTA the title of a position does not govern whether a position
falls under one of the TN visa occupational categories listed in the NAFTA Appendix. Instead, the positions job duties should be analyzed to determine the
occupational classification of a position. See, e.g. In re X, LIN 03 232 53847 (AAO Oct. 25, 2004); and 9 FAM 41.59 n. 3.1 (c). One method of assessing a

positions eligibility under one of the TN visa occupations is to compare the job duties with the description of the TN visa occupation provided in
the Occupational Outlook Handbook. If the proposed job duties align with the description of the occupation found in the OOH, then an argument may be made
for a TN visa.
TN visa applicants should be aware that the burden is always on the applicant to establish his/her eligibility for TN visa status. See INA 291. Thus, for complex
cases like this, individuals should be prepared to show how the position qualifies for TN visa status. U.S. immigration will generally not find the applicants
assertions on their own as convincing. Any statements made to U.S. immigration in support of a TN visa application should be made in reference to the
applicable immigration laws, and be supported by independent evidence.
As many immigration officers may not be aware of, or have access to the applicable laws or guidelines (believe it or not), copies of these should be included in
the TN visa application. More importantly, independent, documentary evidence to support the basis for eligibility must also be provided. Such evidence may
include a copy of the Occupational Outlook Handbook, other U.S. Department of Labor publications, industry studies, or expert opinion letters.