Chang & Boos, Attorneys-at-Law Creating - Transparent Borders  



Immigration Law Monthly

March 2000

Written by Henry J. Chang

I am an F-1 student in my first semester in a community college. During my third month of stay, I met an American girl and we decided to get married.  Should I change my status to conditional permanent resident (after being married) or should I adjust my status to a K-1 fiancé visa?  Will the fact of changing my statut affect my admission at the community college? 

The time you would proceed with a fiancé visa application is if you are outside the United States and not yet married.  The sole purpose of fiancé status is to permit an alien to enter the United States to marry a U.S. citizen and then adjust status to permanent residence (conditional in this case.)  Since you were already in the United States, you did not have to take this additional step.  Now that you are married and in the United States, you can immediately seek adjustment of status to permanent residence. 

I am Canadian citizen.  I hold Master’s degrees in both Education and Arts (Political Science), but for the last 15 years I have been working in restaurant business (most recently as an market operations manager).  I know that I can obtain a job offer from an American restaurant chain.  Would I qualify as a professional under TN status?  I know that teachers qualify under TN status (and I hold a Manitoba Teaching Certificate), but the job offer would be as an area/market manager for a restaurant business. 

Restaurant managers are not included in Appendix 1603.D.1 to Annex 1603 of the North American Free Trade Agreement .  Although the manager of a restaurant in a hotel might qualify as a "hotel manager", it would not apply in your case (at least based on the facts you have provided.)  Even if it did, your university degrees would not be relevant to the proposed position and work experience equivalency cannot be used in TN applications. 

The closest match under Appendix 1603.D.1 would be "management consultant".  In order to qualify, you must normally be a "hired gun" coming to solve a specific problem or to work on a project of a finite duration.  Your position must not have existed prior to you being retained and no one must take your place when you leave; this is known as a "supernumerary" position.  Obviously, your proposed position could not be easily characterized as supernumerary. 

Since you are not actually being hired as a teacher, you cannot qualify for TN status on this basis even if you have the credentials for this profession.  Of course, there is nothing stopping you from seeking a TN as a teacher if you accept a position as a teacher at a university, college or seminary. 

You should probably seek H-1B status as a marketing manager, which would require evidence that you have a relevant degree or equivalent (presumably marketing in this case.)  As your actual degrees are unrelated, you will need a work experience evaluation.  With 15 years of restaurant management experience, you have a good chance of obtaining work experience equivalency to a relevant degree.  However, since the H-1B cap for this year has been reached, the earliest you could obtain H-1B status would be October 1, 2000, unless of course Congress increases the current H-1B cap before that date.  

I am a Canadian citizen who is interested in obtaining TN status as a hotel manager.  I have a bachelor degree in Business Administration.  Do you think I will have any trouble qualifying?   

Until recently, your bachelor degree in Business Administration would have easily established the minimum credentials to qualify as a hotel manager.  However, this has changed as a result of the INS Inspector's Field Manual, which supercedes the old INS Operations Instructions.  The Inspector's Field Manual now states that hotel managers must possess a bachelor degree in hotel/restaurant management or a post-secondary diploma in hotel/restaurant management plus 3 years of experience in the field.  In my opinion, this is an unduly restrictive requirement since a degree in Business Administration would clearly be relevant to a management position at a hotel.  Nevertheless, the INS is very likely to apply this rule. 

Although some ports of entry may be willing to accept a more liberal interpretation of the credential requirement, there would be a very real risk of refusal in your case.  You may wish to consider an H-1B, since your degree would clearly be relevant to the proposed position.  However, as stated above, the earliest you could obtain H-1B status would be October 1, 2000. 



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