Navigating the Recent Increase in TN Visa Refusals

As we talk about what’s happening with the TN visa program, specifically this recent increase in TN visa refusals or denials, I think the best place to start this discussion is to talk about what we’re seeing in trends.

This problem really started late fall last year. It is important to note that the Department of State follows a fiscal year, which means that they calculate their numbers and hold their reports from October until September.

So, the Department of State’s fiscal year began in October of 2023, and it will end in September 2024 when they’ll close out their fiscal year and run their reports and provide their data about how the year went. It is kind of interesting when we start thinking about when we started seeing these trends for refusals really pick up. It happened right around this time last year when the new fiscal year for the Department of State began. We just need a little bit of background to help you understand where we’ve gathered this data and how we’ve gathered it.

A little bit of background about us—we do all immigration work at Sapon Immigration. We don’t practice any other kind of law. At least 80 percent of the work that we do at our firm is employment-focused. So, we’re doing a lot of these types, not just TNs, but we do have a high-volume TN practice. For about a decade now, we’ve been handling high-volume TN cases, meaning doing high numbers of TN applications for employers and for multiple employers across multiple different industries.

That positions us uniquely to be able to look at our own data because we have high numbers and a wide variety of TN applications. It positions us nicely to look at our own data and see what’s trending. Our own collection of data, which is a good amount, gives us a lot of perspective, but also from other business owners that we don’t represent and other immigration attorneys.

So, what are we seeing from October to now? The area that seems to have been experiencing, and continue to be experiencing, the highest refusal rates by professional category—by far—is the animal breeder professional category. Animal science takes a really close second to that. These top three are really closely aligned, and the third is the scientific technician/technologist role.

For those of you who aren’t familiar with a scientific technician/technologist, it is considered a professional-level position. However, it does accept technician-level roles and enumerates the disciplines that are acceptable for this professional category.

One of the areas with the highest refusal rate right now is the engineering and ag science disciplines, which is where we put food science. Now that we know that and where we gather that information, we’re going to go forward and talk about the unofficial causes of these refusals.

I say unofficial because the Department of State is a unique entity. It is protected heavily by national security and the consular non-reviewability doctrine, which makes it very difficult to appeal or contest their decisions. They’re unlike other branches of the government dealing with immigration in that way. Because they have this kind of protection and power, they tend to stay really quiet and they don’t share a lot of information or policy changes openly because they feel like they don’t have to, and they can’t be held accountable.

In backroom conversations, the Department of State is asking why they’re suddenly refusing so many visas in these categories. The first thing, I guess we could couch it all in this one bucket, says the candidates aren’t prepared properly for the interview. I absolutely have, in the last five years, seen come across my desk—too many to count—candidates who share with me the petition letter that they used when they got denied several years back. And it was absolutely missing a lot of important information.

When asked, “Hey, where’d you get this letter? Who gave it to you? Was it an attorney? Was it just your employer? Where did you get this?” Many times, they would say, “Well, my employer didn’t work with an attorney; they just had this agency, and the agency gave it to me.”

Over the years, I have noted that there seem to be individuals in the industry who aren’t attorneys or who don’t have the expertise they need. They’re copying and pasting and fabricating their own petition letters to get these cases through. And those letters have changed and have been missing some very important parts.

While that is probably true for some, I can say that is absolutely not true for our specific cases. And yet we are still experiencing refusals. So, I take this part with a grain of salt, the documents not being in order.

The other two points under this part, that candidates aren’t properly prepared for an interview, are that the applicants aren’t prepared to provide details regarding the position that they’re going to fill or the employer that they’re going to work for. I think, obviously, there are a few nerves that go into play here.

People show up at the consulate. They have such a short period of time at the consular window where they’ve got to regurgitate all this information. They can get really nervous and sort of clam up. They can forget things. And so I think this happens a little bit, but it definitely doesn’t satisfy the discrepancies that we’re seeing now, which we’ll talk about at the very end of the presentation, what we’re seeing in the numbers.

While I do think this happens a little bit, I don’t think it’s the primary factor at play here. We also, at Sapon Immigration, spend an extraordinary amount of time preparing our applicants for their interviews. They receive written packets and instructions. Then, they receive a prerecorded video that they can watch as many times as they want about the most important parts of the information from their letter.

They receive a translated portion of the most important parts of their letters so that they can read them in their own language. We also get on the phone with them and prepare them for any last-minute questions and tips. So again, I take this second point with a grain of salt, and it doesn’t ring true for us.

And yet, we’re still seeing refusals. But keep that in mind if you’re not working with us if you’re working with somebody else, your applicants need to be prepared for the interview. They’re given a petition letter that has a bunch of information, and it’s hard for them to know exactly what part of that letter they need to share. They need some prep and to be coached. You’re going to have about a minute and a half at the window. These are the most important things to discuss in that minute and a half. If you have more time, then move on to these things. We definitely provide that prioritization and that coaching.

If you’re not working with us, you absolutely need to make sure that your applicants, your candidates, are getting that prep. The third reason candidates are not being prepared properly is that they don’t know basic industry information, such as gestation cycles.

We do a lot of work for swine producers. Toward the end of last year and the beginning of this year, we heard candidates saying, “They asked me how long the gestation cycle was and they asked me these specific technical questions about swine production.”

Some people answered slightly differently than maybe what the canned response would be for the agent working the window. And let’s be clear, the agents working the window don’t know anything about swine production. They’ve probably just been given a couple of stats on a piece of paper, and if the person doesn’t answer exactly that way, then they were justifying that as a reason for refusal. The same thing for engineering concepts.

We did hear a little bit this year that people were being asked specifics about their field of knowledge to see if they actually possess the knowledge that they needed to go in and fill these jobs. So we also, at our firm, go over some basic things. You just need to refresh some of this stuff in your mind. Go back to your school days and look at this basic industry information and just get it fresh in your mind so that if you’re asked these things, you’re prepared to answer. So, I would say that makes up the first bucket, which is candidates not being properly prepared for interviews, which is kind of the back door response for why the refusals were increasing.

The second area, which is much more problematic, is the Department of State’s position that many of the positions they’re seeing are not professional in nature. I’m going to break that down without trying to take up too much of today’s time.

But, of course, our strategy when we’re working with an employer is to get really good at developing that TN position. So, when an employer first comes to us and says, “Hey, we want to hire some TN workers, these are the roles we think we might need to fill,” we take a look at those job descriptions and say, “Yeah, this looks good” or, “Hey, this looks a little bit entry level. Could you maybe remove some of these duties and add some additional duties?” and we spend some time getting the roles developed. And, of course, whatever is placed on those petition letters is what the person needs to be doing. So we can’t say, “Hey, let’s remove some of this stuff,” but they’re still secretly going to do it.

No, we spend time developing and saying this is the kind of role that can qualify for a TN, and this is what they need to be doing to comply, and getting companies to understand how they can use the TN programs. If you’re not working with an attorney, or you’re not working with someone who’s really experienced and has been guiding you that way, you absolutely should be.

The consulate first says that the job duties listed in the petition letter do not match or align with the professional category. The tricky part is that the resources that actually control the TN program don’t enumerate exactly what those duties should be. So, the primary resource we look at for a TN visa is the appendix, which used to be the 1603 D1 appendix under the NAFTA.

Now, it’s appendix two under USMCA. But there is an appendix there, and it lists out the professional categories. Primarily, what we get there is the professional category and then the education requirement. But it doesn’t really enumerate what the duties are, what the person should actually be doing as part of that professional category job.

So, for animal breeders, for example, we would see the animal breeder professional category. If we follow that over on the appendix, we would see that it required a four-year degree from Mexico, which is called the licenciatura, or the baccalaureate, which is a four-year degree in Canada, but then we don’t get any additional information there.

The other resource used to determine this is the Foreign Affairs Manual and the NINFAM. It also doesn’t enumerate exactly what the duties are. It does signal that consular agents can look at another government resource heavily used by the Department of Labor, the Occupational Outlook Handbook, the OOH for short.

And so, when we’re developing these roles, we’re looking at all of these resources. We’re looking at what’s listed in the OOH. We’re making sure that we’re calling in Animal Breeder Alliance. Again, if you’re not working with a professional, you should be. And if you’ve been experiencing denials and you’re not working with a professional, you should absolutely contact somebody. A professional who could help you look at your program and make sure that you don’t have issues that are causing you problems.

More recently, we’ve been hearing people say that the language in the letter doesn’t match the professional category. So they’re getting more technical with the words they use when they tell a candidate that their visa is being refused.

But, again, this first point doesn’t really ring true because, as I said, our practice for our clients is to absolutely look at all of those government resources and make sure that there’s alignment there. So, absolutely, I’m going to debunk that and say for sure that for the clients we’re working with, this isn’t accurate.

First, before I talk about wages, I just want to explain that neither the appendix nor the foreign affairs manual indicates a wage requirement. In fact, the foreign affairs manual specifically says that the TN program does not follow prevailing wage, so that lets us know that there’s a significant amount of latitude when it comes to wage.

The foreign affairs manual, however, does say that the wage should align with something that would be considered a professional position. And so, when Sapon Immigration works with an employer and develops a role, the wage is something we always look at. And while we feel like there is latitude, we don’t often say, “Look, you’ve got to be at least 16 an hour,” or something. We might say something like, “Look, the OES or the BL, the Bureau of Labor Statistics, these resources reflect that this might be the wage for this geographical region. Your wage is a couple of dollars an hour short. We might suggest that you bring that up just a little bit to get closer in range to have a better chance of approval.” And over the years of the last decade, we have absolutely recommended to our clients, “Hey, your wage is a little bit low for this particular job for this particular region based on the government resources, so we might recommend that you bring that up a little bit to align with our claim that this is a professional position.”

So the wages part is getting a little bit of traction. And I think it’s kind of important to note here that we have had some applicants tell us that the consular agents specifically have said, “This wage is too low,” or, “Hey, you can get paid more by a different company. Go look for another job that’s going to pay you more.”

So, again, a whole iteration of that point, they’re taking issue with the wage. And I think there’s a little bit of validity here. And this is easier for me to say today than it is for employers to implement because some of our clients that we work with have hundreds of employees, and changing wages for the TN roles that they normally fill when they come in means an entire revamp of wages within the organization.

I don’t suggest, “Hey, just go change your wages. It’s an easy fix.” But definitely look at this piece. We’ll talk about this point in the next slide, about tips about how to tinker with wages a little bit that can work for your organization.

So that’s one part. The other interesting thing that we’ve heard in these unofficial communications is that the Department of State is now checking local job boards. What they’re doing is they’re going to local job boards, they’re looking for the role that the company is advertising, and they’re checking whether or not the company says that they need somebody with education or experience to fill the role. Their claim is that for the same roles a lot of companies are using TNs to fill, they’re advertising it locally with no education and no experience required therefore contradicting their claim that this is a professional-level position.

It is also really important to think about this from the perspective of looking at your local advertisements and seeing what kind of tweaks can be made to the language so that if the department states that it will do a check, it will not be contradictory.

The last thing they have listed here is fraud and abuse in the program. That’s really what attracted their attention. I think numbers played a big role, and we’ll talk about that again toward the end. We start talking about the number of applications that have been received over the years and how those have grown.

But I think, obviously, there’s been a lot more attention on the TN program and a lot more employers using it. Recently, several lawsuits filed by TN visa holders have stated that they are not filling the jobs that they were promised. That positions were advertised a certain way—you’re going to be doing this.

I’ll give you a tangible example of one of the lawsuits. The automotive industry is really under heavy scrutiny right now because of this. Individuals are saying that they were told they were going to come in and be engineers, and they were literally placed on an assembly line where they weren’t doing anything engineering involved at all. They didn’t have to have any engineering knowledge whatsoever. And so there are lawsuits of this kind, with multiple TN holders saying, “Hey, I was told this is going to be a professional position, and it’s not. It’s not a professional position.” So, the Department of State has been put on high alert, and they’re looking at everything critically.

Those are the most common things that we’ve been hearing from the Department of State. An unofficial table here reflects the total number of applications received each year for TN visas, the total number of visas issued, the total number of refusals, and the percentages for approvals.

Our firm has traditionally had much higher numbers than the average percentages. So, as you can see, we’re starting the most recent and working back. For 2024, when we have those numbers, we expect them to come out sometime in probably mid to late October to November. But for 2023, we had about an 82% issuance rate, meaning it was about an 82% approval rate.

Our firm in 2023 was still experiencing much higher approval rates than that. We can see that they received almost 40,000 applications. If we go all the way back to 2016, we can see that the total number of applications is about 17,000. So, the TN program has grown a lot. It’s doubled. I think that has also contributed to some of the scrutiny that the Department of State is putting on this.

I think they’re trying to drive numbers down too, and it’s worked. It will be interesting to see how many applications were received in fiscal year 2024 and if we got a dip because of all of the refusals. I think part of their strategy is just to drive numbers down. The thing that’s really noticeable and really striking is that from year to year, the percentage is great, even though we’ve had great fluctuations in the total number of apps received. Really, from year to year, the issue is percentage rates have only fluctuated by just a couple of percentage points. The biggest fluctuation we saw was between 2022 and 2023, from 88% to 82%. So, we’re only talking about 6 percentage points.

Now, what are we expecting for 2024? Well, I’ve been tracking that data from month to month, from post to post. I’m sure the Department of State is going to try to do something sort of manipulate these numbers a little bit. We have had some months that have been fairly good and then months that have just been terrible, but my estimate is the percentage of issuance for 2024 is going to drop to somewhere between 40% and 60%. So even if we’re at the high end of that spectrum and we’re saying it’s 60%, we will have witnessed a more than 20% drop, which I think, going back to the previous slide, all signs point to there was a policy change without proper notice.

The Department of State made some kind of change, and they did not notify employers or attorneys about that change, which absolutely resulted in a big harm. They would have been required to do that. And so that’s kind of the crux. If we’re going to simplify the litigation strategy here, that’s kind of the crux.

We’re saying, “Look, you didn’t follow the rules. You made changes. You didn’t tell people. You didn’t follow the rules.” And that’s unacceptable.

And I think the timing for litigation is actually really right because these new numbers are going to come out in the next couple of months. And I think they’re going to be really damning for the Department of State from a litigation strategy perspective because it’s going to be very difficult to justify how those percentage numbers could have dropped so significantly without a significant policy change.

So, my plea today is, for those of you who are at least intrigued by the conversation, to schedule an appointment to talk with us about litigation. Because we’re in that stage right now where we’re looking at gathering plaintiffs. I’m going to be a plaintiff. Any of my clients who are interested may be a plaintiff if we can get people together to fight this. Because I think the TN program absolutely needs to be fought for. We can’t just abandon it. It’s highly flexible. It’s highly workable. It’s effective. It’s affordable and it’s there for a reason. And we can’t allow the Department of State just to come in and completely eradicate entire professional categories the way they have been doing recently.