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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