[Federal Register Volume 69, Number 197 (Wednesday, October 13, 2004)]
[Rules and Regulations]
[Pages 60939-60942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23011]



Federal Register / Vol. 69, No. 197 / Wednesday, October 13, 2004 / 
Rules and Regulations

[[Page 60939]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2068-00]
RIN 1615-AA38


Adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of 
the North American Free Trade Agreement

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: This final rule adopts without substantive change a proposed 
rule that was published in the Federal Register by the former 
Immigration and Naturalization Service (Service). This final rule 
amends the Department of Homeland Security's (Department's) regulations 
by adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of the 
North American Free Trade Agreement (NAFTA) and by modifying the 
licensure requirements for Canadian citizens seeking admission to the 
United States as ``trade NAFTA'' (TN) nonimmigrant aliens. These 
amendments reflect the agreements made among the three parties to the 
NAFTA and will facilitate travel to and business in the United States. 
On March 1, 2003, the Service transferred from the Department of 
Justice to the Department, pursuant to the Homeland Security Act of 
2002 (Pub. L. 107-296). Accordingly, the Service's adjudication 
function transferred to the U.S. Citizenship and Immigration Services 
(USCIS) of the Department.

DATES: This final rule is effective November 12, 2004.

FOR FURTHER INFORMATION CONTACT: Craig Howie, Staff Officer, Business 
and Trade Services Branch, Program and Regulations Development, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
425 I Street, NW., ULLICO Building, 3rd Floor, Washington, DC 20536, 
telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

What Is NAFTA?

    On December 17, 1992, the United States, Canada and Mexico signed 
NAFTA. NAFTA entered into force on January 1, 1994, creating one of the 
largest trading areas in the world. Besides trade, NAFTA allows for the 
temporary entry of qualified business persons from each of the parties 
to the agreement. NAFTA is comprised of 22 chapters. Chapter 16 of 
NAFTA is entitled ``Temporary Entry of Business Persons,'' and in 
addition to reflecting the preferential trading relationship between 
the parties to the agreement, it reflects the member nations' desire to 
facilitate temporary entry on a reciprocal basis. It also establishes 
procedures for temporary entry, addresses the need to ensure border 
security and seeks to protect the domestic labor force in the member 
nations.

Who Is a TN Nonimmigrant Alien?

    A TN nonimmigrant alien is a citizen of Canada or Mexico who seeks 
admission to the United States, under the provisions of Section D of 
Annex 1603 of NAFTA, to engage in business activities at a professional 
level as provided for in the Annex. NAFTA parties have agreed that 63 
occupations qualify as professions. These occupations are listed in the 
Appendix 1603.D.1 to Annex 1603 to the NAFTA found in 8 CFR 214.6(c). 
Canadian and Mexican citizens seeking to engage in occupations not 
included in Appendix 1603.D.1 to Annex 1603 are not eligible for 
classification as TN nonimmigrants.

What Changes Were Proposed in the Proposed Rule?

    In the proposed rule published on December 19, 2000 at 65 FR 79320, 
the former Service proposed to add the occupation of actuary to the 
list of professions in Appendix 1603.D.1. In addition, the rule 
proposed to include plant pathologist to the Appendix 1603.D.1 as a 
footnote to the occupation of biologist. The former Service also 
proposed to change the licensure requirements for Canadian TN aliens 
applying for admission to the United States described at 8 CFR 
214.6(e)(3)(ii)(F). The rule further proposed to remove 8 CFR 214.6(l), 
which relates to the transition period for Canadian citizens who were 
admitted to the United States under the United States-Canada Free Trade 
Agreement that existed before the effective date of NAFTA. The former 
Service also proposed to change all references to the Northern Service 
Center to the Nebraska Service Center to reflect the center's current 
name. Finally, the former Service proposed to remove the term 
``diplomas, or certificates'' from 8 CFR 214.6(d)(2)(ii) and at 8 CFR 
214.6(e)(3)(ii) since these regulatory cites are inconsistent with the 
footnotes to the Appendix.

Did the Former Service Receive Any Comments in Response to the Proposed 
Rule?

    Yes, the former Service received 12 comments on the proposed rule. 
Seven of the comments dealt with the proposal that would add actuaries 
and plant pathologists to NAFTA and five comments related to the 
proposal to modify the licensure requirements for Canadian TN 
nonimmigrants. One of the comments addressing the proposed licensure 
requirements for Canadian TN nonimmigrants was actually a number of 
questions relating to the process that the former Service (now 
Department) uses to determine whether an alien has an appropriate 
license to practice in his or her occupation or profession. Since the 
questions posed in this comment letter do not directly relate to the 
proposed rule, this comment will not be discussed.
    None of the comments addressed the technical changes that the 
former Service noted in the proposed rule. These technical changes 
include the removal from the regulations of the discussion of the 
transition period for Canadian citizens who were admitted to the United 
States under the former United States-Canada Free Trade Agreement, 
changing references to the ``Northern Service Center'' to ``Nebraska 
Service Center,'' and removal of the term ``diplomas, or certificates'' 
from 8 CFR 214.6(d)(2)(ii) and 8 CFR 214.6(e)(3)(ii) since these 
regulatory cites are inconsistent with the footnotes to the appendix. 
The Department published an interim final rule on March 10, 2004 (69 FR 
11287) which implemented changes to the TN application process 
resulting from the sunset of some NAFTA requirements imposed on Mexican 
TN's. The changes in that interim final rule resolved the technical 
issues referenced above, and this rule finalizes the technical changes 
noted in the proposed rule.

What Were the Specific Comments That the Former Service Received 
Regarding the Proposed Change in the Licensure Requirements for 
Canadian TN's?

    The former Service received four comments on this proposal. The 
American Nursing Association (ANA) stated that it was not supportive of 
the provision modifying the licensure requirement because it would 
allow unqualified Canadian nurses into the United States. The ANA 
argued that the removal of the requirement that a Canadian nurse have a 
United States license would undermine a provision that was designed to 
protect the United States public from unqualified health care workers.
    Another commenter, a board member of the American Immigration 
Lawyers Association, argued that the proposal would create a 
distinction between the processing of Mexican and Canadian TN

[[Page 60940]]

nonimmigrant aliens. The commenter stated that the intended employer of 
a Mexican citizen is required to submit the alien's license with Form 
I-129, Petition for Nonimmigrant Worker, before the Mexican TN can be 
admitted to the United States. In the case of Canadian TN's, the 
license would never be presented to the Department.
    The National Council of State Boards of Nursing (Council) also 
commented on the final rule and stated that it was opposed to the 
provision removing the licensure requirement for Canadian 
nonimmigrants. The Council asserted that the provision would allow 
Canadian citizens easy access to the United States labor market to work 
in their chosen profession as TN nonimmigrant aliens. However, the 
Council also suggested that employers in the United States would not 
employ these aliens in their profession but in similar or related 
occupations at a substandard salary. Finally, the Council argued that, 
in the case of nursing, the proposal would result in many American 
citizens being treated by unlicensed health care professionals.
    The Commission on Graduates of Foreign Nursing Schools (CGFNS) also 
commented. CGFNS is an international authority on the education, 
registration, and licensure of nurses and foreign health care workers 
worldwide. CGFNS asserted that the implementation of the licensure 
proposal would result in the admission of Canadian healthcare workers 
to the United States without the appropriate license. CGFNS argued that 
these Canadian workers will not wait until they are licensed to seek 
employment and will begin to work in the United States healthcare 
system in any capacity they can find. Under the former Service's 
proposal, licensure verification would become the responsibility of the 
employer, not the government. CGFNS also stated in its comment that the 
requirement that a Canadian TN present his or her license at the time 
of admission is consistent with the NAFTA. Finally, CGFNS represented 
that there is substantial evidence that some Canadian TN's will have 
difficulty obtaining a United States nursing license and, as a result, 
the proposal will create a pool of unqualified health care workers who 
will be providing healthcare services to American consumers.

Why Did the Former Service Propose To Change the Licensure Requirements 
for Canadian TN Nonimmigrants?

    To ensure that the former Service's regulations implementing 
Chapter 16 are in conformity with the obligations of the United States 
under the Agreement, the former Service proposed to remove 8 CFR 
214.6(e)(3)(ii)(F). This provision requires the presentation of a 
license by a Canadian citizen as an entry requirement under the NAFTA.

What Is the Department's Response to the Comments Received Regarding 
the Proposal To Change the Licensure Requirements for Canadian TN 
Nonimmigrants?

    The Department has reviewed the opinions expressed in the comments 
to the proposed rule. After careful consideration, the Department will 
adopt the proposal that removes the requirement that a Canadian TN must 
present a license at the time of application for admission to the 
United States.
    As one of the regulatory agencies responsible for the 
administration of the immigration laws of the United States, the 
Department has a responsibility to ensure that its regulations are in 
agreement with existing laws, treaties, and agreements. In this 
instance, the requirement that a Canadian TN nonimmigrant alien present 
a United States license at the time of application for admission to the 
United is inconsistent with the NAFTA.
    The Department disagrees with the CGFNS argument that requiring a 
state-issued license as a condition of admission is not in conflict 
with Chapter 16 of the NAFTA. As stated in the proposed rule, this 
regulatory change ensures that the Department's obligations under 
Chapter 16 are in conformity with the obligations of the United States 
under the NAFTA agreement.
    The basic issue under consideration is whether a license is (1) an 
employment requirement, or (2) an entry plus employment requirement, 
for the Canadian professional desiring to work in the United States in 
TN status. Under the NAFTA, the requirements for entry as a 
professional are clearly spelled out and are noted in the list of 
educational credentials or alternative criteria found in Chapter 16. In 
select instances, a license is noted as an alternative document for 
entry, but not as a required primary document for entry. In no case is 
a license required by the prospective Canadian TN as the absolute 
primary documentary requirement for entry. For Canadian registered 
nurses, the primary group subject to comments made in response to the 
proposed rule, either a state-issued license or a Canadian provincial 
license is required as an entry document. Such documentation provide 
only for the entry of the prospective Canadian TN (provided that the 
individual is otherwise admissible).
    The Department wishes to make clear that all Canadian TN 
nonimmigrants are subject to any individual state's licensure 
requirements. Granted, and in particular in the case of Canadian 
registered nurses, any such state licensure will most likely take place 
after entry. But, as we note above, the state license is not a 
mandatory documentary requirement for entry. States continue to 
maintain the ability to impose licensure requirements on any individual 
intending to work in the state.
    The Department has taken special note of the comments that 
expressed concern that the change in the licensure requirement may have 
an adverse affect on the welfare of the United States. The Department 
is of the opinion that this rule will have no negative effect on the 
health and welfare of United States citizens. In those jurisdictions 
where a particular profession or occupation requires licensure, State 
or Federal law will continue to require the alien's employer to ensure 
that the alien has the proper license before the alien commences 
employment. In this regard, a Canadian TN alien will be treated in the 
same fashion as a United States worker. While this final rule will 
ensure that the Department will not require a Canadian TN to present a 
license to be admitted to the United States, the alien still will have 
to have a license to work in the United States consistent with Chapter 
12 of NAFTA.
    The change in the licensure requirement for Canadian TN 
nonimmigrant aliens does not result in different requirements between 
Mexican and Canadian TN nonimmigrant aliens. On March 10, 2004, the 
Department published an interim final rule in the Federal Register at 
69 FR 11287 eliminating the numerical cap on Mexican TN nonimmigrants 
and eliminating the associated requirement of a petition for Mexican-
based professionals. Prior to the March 10, 2004 effective date of this 
rule, Mexican TN nonimmigrant aliens were required to provide evidence 
of licensure as part of the petition process. Following elimination of 
the petition requirement on March 10, 2004, Mexican TN nonimmigrant 
aliens are no longer required to provide evidence of licensure as a 
prerequisite to admission to the United States. Thus, Mexican TN 
nonimmigrant aliens are treated the same as Canadian TN nonimmigrant 
aliens with respect to removal of the licensure requirement. Both 
Mexican and Canadian TN nonimmigrant aliens, however, must be reminded 
that State

[[Page 60941]]

and Federal law continue to control in regard to any licensure 
requirement as a condition of employment in the United States.

What Were the Specific Comments That the Former Service Received 
Regarding the Proposed Addition of Actuaries and Plant Pathologists to 
Appendix 1603.D.1 of the NAFTA?

    The former Service received seven comments on the proposal to add 
actuaries and plant pathologists to the NAFTA. Of these comments, six 
agreed with the proposal and urged its adoption as written.
    One commenter urged the former Service to broaden the possible 
qualifications for the TN category of actuary. This particular 
commenter, a private law firm, asked that the government consider other 
academic disciplines as being essentially equivalent to a degree in 
actuarial science.
    The Department will not include this suggested change in this final 
rule as it is not consistent with the criteria agreed to by the three 
NAFTA parties to establish that an individual qualifies as an actuary. 
Therefore, the Department will adopt the proposed rule's language with 
one modification. In lieu of inserting the profession of Actuary into 
the body of Appendix 1603.D.1, a new footnote to the category of 
Mathematician will note that actuaries are included within the meaning 
of the term ``mathematician.'' As it is generally accepted that an 
actuary is in fact a type of mathematician, the Department finds that 
inclusion of the profession of actuary within the meaning of the term 
mathematician is an acceptable and non-significant modification to the 
language of the proposed rule.
    The Department also notes that no comments were received regarding 
the proposal to add plant pathologists as a footnote to the category of 
biologists in Appendix 1603.D.1 to the NAFTA and the language of the 
proposed rule is adopted without change.

Regulatory Flexibility Act

    The Department has reviewed this rule in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and, by approving it, the 
Department certifies that this rule will not have a significant 
economic impact on a substantial number of small entities. While some 
employers may be considered small entities, this final rule will 
benefit United States employers by allowing certain aliens to transfer 
their professional skills to the United States and to work in their 
chosen occupation in the United States in a more expeditious fashion.

Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by State, local 
and tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any one year, and it will not significantly or 
uniquely effect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
final rule will not result in an annual effect on the economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This final rule is considered by the Department to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.
    This final rule is intended to benefit various United States 
employers by amending the Department's regulations to add the 
professions of actuaries and plant pathologists to the list of viable 
NAFTA professional occupations. Indirectly, this final rule will 
benefit Canadian and Mexican actuaries and plant pathologists destined 
for employment in the United States, and, reciprocally, United States 
actuaries and plant pathologists destined for employment in either 
Canada or Mexico. The final rule imposes no new costs to the pre-
existing filing fees for NAFTA professionals. Since this final rule 
provides a benefit to the public without producing any additional 
costs, the Department feels it is justified in issuing this final rule.

Executive Order 13132

    This final rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this final rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This final rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting or recordkeeping 
requirements inherent in a rule. This final rule does not impose any 
new reporting or recordkeeping requirements under the Paperwork 
Reduction Act.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

0
Accordingly, part 214 of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 
Stat. 3009-708; section 141 of the Compacts of Free Association with 
the Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 
1931 note, respectively; 8 CFR part 2.


0
2. Section 214.6 is amended by:
0
a. Revising the section heading;
0
b. Redesignating footnotes 5 and 6 as footnotes 6 and 7, respectively;
0
c. Adding a new footnote 5 at the end of the occupation 
``Mathematician'' in paragraph (c), Appendix 1603.D.1;
0
d. Adding footnote 8 at the end of the occupation ``Biologist'' in 
paragraph (c), Appendix 1603.D.1; and
0
e. Adding the text of new footnotes 5 and 8.
    The revision and additions read as follows:


Sec.  214.6  Canadian and Mexican citizens seeking temporary entry to 
engage in business activities at a professional level.

* * * * *

[[Page 60942]]

    (c)* * *

    \5\ The term ``Mathematician'' includes the profession of 
Actuary. An Actuary must satisfy the necessary requirements to be 
recognized as an actuary by a professional actuarial association or 
society. A professional actuarial association or society means a 
professional actuarial association or society operating in the 
territory of at least one of the Parties.
* * * * *
    \8\ The term ``Biologist'' includes the profession of Plant 
Pathologist.

    Dated: October 6, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-23011 Filed 10-12-04; 8:45 am]
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