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TN status or TN visa (Trade NAFTA) is a special non-immigrant classification in the United States that offers expedited work authorization to a citizen of Canada or a national of Mexico, created as a result of provisions of the North American Free Trade Agreement that mandate simplified entry and employment permission for certain professionals from each of the three NAFTA member states in the other member states.[1][2]

A Canadian citizen or Mexican national with a job offer in certain defined professions and who meets the minimal education requirements for each defined profession can work in the United States, for up to three years.[3] The permit potentially may be renewed indefinitely.

Canada's corresponding NAFTA work permit for US citizens and Mexican nationals is sometimes unofficially also referred to as a TN status or TN visa,[4] although this name is technically only a creation of US law.[2]

It bears a similarity, in some ways, to the US H-1B visa, but also has many unique features. Most notably, the H-1B visa allows for dual intent to obtain permanent residency in the United States, whereas TN status holders are not permitted to seek permanent residency in the US and can be denied entry or deported should they apply for or express interest in obtaining permanent residency.

History

NAFTA negotiation and ratification

Further information: North American Free Trade Agreement

The governments of Canada, Mexico, and the United States negotiated a regional free trade agreement, which came to be known as NAFTA, during the 1980s.[5] The leaders of the three nations signed the agreement in their respective capitals on December 17, 1992.[6]

NAFTA included an Appendix 1603.D.1 that required each of the member-states to institute laws and regulations for the free temporary movement of certain professionals among the three member-states with special simplified immigration procedures.[7]

United States federal law

NAFTA was implemented in US federal law in 1993 through the North American Free Trade Agreement Implementation Act, H.R. 3450, Pub. L. 103-182, 107 Stat. 2057.[8][9][10]

After approval of the measure by the US House and US Senate, President Bill Clinton signed the law on December 8, 1993, placing NAFTA into effect on January 1, 1994.[11]

The measure inserted a new sub-paragraph into section 214 of the Immigration and Nationality Act, codified at United States Code, title 8, section 1184, that states:[10]

An alien who is a citizen of Canada or Mexico, and the spouse and children of any such alien if accompanying or following to join such alien, who seeks to enter the United States under and pursuant to the provisions of Section D of Annex 1603 of the North American Free Trade Agreement (in this subsection referred to as 'NAFTA') to engage in business activities at a professional level as provided for in such Annex, may be admitted for such purpose under regulations of the Attorney General promulgated after consultation with the Secretaries of State and Labor, for purposes of this Act, including the issuance of entry documents and the application of subsection (b), such alien shall be treated as if seeking classification, or classifiable, as a nonimmigrant under section 101(a}(15).

United States federal regulations

The regulations described in the NAFTA Implementation Act were promulgated on December 30, 1993, in a regulation entitled "Temporary Entry of Business Persons Under the North American Free Trade Agreement (NAFTA)".[12]

It amended section 214.6 of the Code of Federal Regulations, title 8, to provide procedures for "Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level".[13]

The section states that "Pursuant to the NAFTA, an applicant seeking admission under this section shall demonstrate business activity at a professional level in one of the professions set forth in Appendix 1603.D.1 to Annex 1603" and then sets forth the professions agreed upon by the NAFTA member states.[14]

Description

The visa category "Professionals Under the North American Free Trade Agreement" (NAFTA), also known as a TN (Treaty NAFTA) visa, is available only to citizens of Canada and Mexico, under the terms of the NAFTA. Starting in 1989 and continuing through 1993, qualifying individuals practicing one of the professions identified in the Canada–United States Free Trade Agreement (CUSFTA) were able to obtain TC status for legal work in the United States and Canada, creating freedom of labor movement.[15] In 1994, TN status became effective through the North American Free Trade Agreement (NAFTA),[16] which superseded CUSFTA.[17]

Qualifications

A person may be eligible for TN status, if:[1]

  • The prospective employee is a citizen of Canada, or Mexico;
  • The profession is one cited under the NAFTA treaty;
  • The company seeking to pursue TN status with the prospective employee meets qualifications cited under the NAFTA treaty;
  • The prospective employee has been issued a formal, written full-time or part-time offer of employment in the United States, Canada or Mexico;
  • The prospective employee has the qualifications to practice in the profession in question.

Initial period of stay

Once TN status is granted, it is valid for up to three years,[18] but only for the specific employer for which it was originally requested. Changing employers will require to start from scratch with a new application. If employment with a single employer is desired for more than three years, it may be renewed indefinitely.

Prior to October 16, 2008, the initial period of stay for a TN status holder was up to one year only.[19]

Renewal

Renewal is accomplished either by a mail-in renewal within the United States, or by returning to the border and, in effect, presenting a new application.

However, the TN status may be renewed indefinitely in three-year increments, but it is not a permanent visa and if U.S. immigration officials suspect it is being used as a de facto green card, then they may elect to deny further renewals. The set of occupations permitted to petition for TN status is also quite a bit more limited than for the H-1B visa.[20]

Renewal is possible, in theory, indefinitely, but the TN status is not a substitute for permanent residency (a green card), and the border official has the discretion to refuse further renewals if she feels the ability for indefinite renewal is being abused. How this happens in practice depends largely on the mood of the individual border official. Some Canadians have successfully renewed TN status for a decade or more; others have found that after 3–4 years a border official may deny renewal.[21]

Dependents

The spouse and dependent children under the age of 21[1] of a TN professional may apply for TD status (TD-1 for the family members of a Canadian citizen worker, or TD-2 for those of a Mexican worker). TD status can't be granted for longer than the period of time granted to the principal TN professional holder.[1]

TD status does not allow them to work, although they are permitted to attend school.[1] In most states, non-resident tuition rates will apply for post-secondary institutions. If the spouse requesting TD status is not a Canadian citizen, he or she will usually still qualify for TD status, but must first request a formal TD visa at a US consulate.

The US consulates report 3,000 to 4,000 TD visas issued in each US fiscal year from 2007 to 2009; this includes visas issued both to family members of Mexican TN-2 visa holders and to non-Canadian family members of Canadian TN-1 entrants.[22]

Canadian citizens

For Canadians, TN status does not involve a visa. Canadian professionals are admitted into the United States in TN-1 status at the border. Canadian citizens are not required to obtain a visa,[23] but instead receive TN status with U.S. Customs and Border Protection (CBP) at their port of entry (most commonly it is done upon entry to the United States from Canada, but entry in TN status is permitted at any port of entry, such as an airport with United States border preclearance). The TN status will only be granted if the period of stay is temporary.[23] There is no appeal recourse if one is refused TN status.

Canadian citizenship for TN status purposes may be by descent or naturalization. Those with qualifications from sources outside Canada or the U.S. must prove equivalency to the U.S. requirements.

Canadians have two alternative procedures to apply for TN status. One by going directly to their port of entry and the other one by mailing their application to the designated processing office prior to their intended trip into the United States [two- six months processing time, unless you use the Premium Processing service]; Canadians already in the US could do the same, without having to leave.

Directly to a port of entry

Applying for this status is a fairly streamlined procedure. The Canadian at the U.S. port of entry, must:[23]

  • Request TN status;
  • Present a proof of a job offer[note 1] from a U.S.-based employer, in the form of an employment letter detailing a temporary employment for not more than three years;
  • Bring the original documentation and provide a copy of the applicant's college degree and employment records which establish qualification for the prospective job;
  • Present a proof of Canadian citizenship (passport); and
  • Pay a fee of US$50 (plus an additional $6 at a land or sea crossing; this is included in airline tickets when arriving by air).

The U.S. immigration officer will then adjudicate the application on the spot and grant or deny TN status. If the decision is to grant TN status, the Canadian immediately enters the U.S. and begins TN employment. If the decision is to deny, the immigration officer will often detail the shortcomings in the application; if these are relatively straightforward to correct, the Canadian will often correct the problem in a day or so and then return to the border to reapply.

Applying with the USCIS

Alternatively, a prospective TN employer can apply for a change of visa status to TN on the person's behalf.[1] The procedure for doing this is by submitting Form I-129 petition with a US$460[24] fee to the appropriate (California or Vermont)[25] USCIS service center.

If USCIS approves Form I-129, the prospective worker may then apply to CBP for admission to the United States as a TN nonimmigrant by providing the following documentation to a CBP Officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station:

  • Proof of Canadian citizenship; and
  • Approval notice from USCIS for Form I-129.

In addition, when applying for admission, the applicant should have in their possession a copy of the Form I-129, and all supporting documentation that was submitted to USCIS, in order to respond to any questions about eligibility. The applicant should also be prepared to pay any applicable inspection fees at the time that he or she seeks admission. If a CBP officer finds the applicant to be eligible for admission, the person will be admitted as a TN non-immigrant.[1]

Domestic partner/cohabitating partners

A TN visa holder may bring their domestic partner to live with them. The domestic partner will get a B2 visa up to one year, but most likely only 6 months. They will not be able to work for a US company in the U.S. or study in the U.S.[26]

Mexican citizens in the United States

A Mexican citizen must first obtain a U.S. TN-2 visa at an American consulate (generally in Mexico). Once the TN visa stamp is in the Mexican citizen's passport, they may enter the U.S. with TN status in a similar manner to a Canadian citizen. In fiscal years 2007 through 2009, between 4,000 and 5,000 TN visas (including TN-2 visas for Mexicans) were issued by U.S. consulates each year.[22]

Prior to 2004, Mexicans were subject to an annual quota and to procedures similar to an H-1B visa.[27]

Extension options

Renewal/extension of TN status can be done either by mail (which requires filing of form I-129 "Petition for a Nonimmigrant Worker" by the employer, along with proof of the TN holder's citizenship and education, and an extension letter similar to the original offer letter) or by duplication of the original process (for Mexican citizens, a trip to a US consulate; for Canadians leaving and re-entering U.S., document requirements are similar to those for obtaining the original TN).

TN holders (and any dependents) are not required to leave the U.S. as soon as the TN status expires or the job is terminated; there is a formal grace period of 10 days at end of authorization to "depart the United States or take other actions to extend, change, or otherwise maintain lawful status" and a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status. The individual is legally allowed to remain in the USA to look for another job for 60 days.https://www.uscis.gov/archive/archive-news/uscis-publishes-final-rule-certain-employment-based-immigrant-and-nonimmigrant-visa-programs

Income tax requirements

Canadian TN status workers are responsible for US Medicare, State, Federal and Social Security taxes in the US. US TN status workers in Canada are also subject to corresponding income tax liabilities and end-of-year filing of tax returns in Canada. In general, there will be income tax liabilities in accordance to where the employee works regardless of where legal or physical residence is maintained during employment. This is much like US citizens who live in one state but work in another who are then subject to state income and other taxes in the state in which they work. If their legal residence is still in their home country, workers may also be required to file a return in their home country. Based on income tax treaties, credit is normally available in the home country for income and other payroll taxes paid in the foreign country. Bilateral treaties exist to allow workers to regain benefits. For example, after a minimum of 1.5 years of work in the US, workers become eligible for a pro-rata Social Security benefit under what is known in the US as a Totalization agreement. After more than 10 years of work in the US, the regular Social Security benefit calculation minus the Windfall Elimination Provision will be applied. Therefore, the worker may receive 3 cheques, one each from the Canada Pension Plan, Old Age Security and US Social Security.[28]

Comparison to H-1B visa

TN status has some similarities with the H-1B visa. TN status may be easier for some Canadians or Mexicans to obtain, as they are not subject to the annual cap for H-1B visas issued.

But the most important difference is that TN status does not include the doctrine of dual intent. Therefore, Canadians or Mexicans on TN status must be careful if they desire to ultimately pursue the green card. Either they should first switch to the H-1B visa before applying for the green card, or they must carefully time things to ensure they do not attempt to renew TN status after the green card application is formally pending (generally meaning that Form I-485 package has been filed for TN holder; those pursuing consular process can renew until just before the interview appointment at an immigrant-visa–issuing U.S. consulate).

Employer requirements

Employers do not need to maintain extensive documents and records on TN workers, unlike with H-1B employees. In the case of an investigation or audit by the Immigration Service or Labor Department, the employer must show that the worker is in valid status. An employer must complete the Form I-9 for employees in TN visa status, as with all other employees.

Recognized TN professionals

The following professions qualify for the TN visa.[29][30] They are covered by Appendix 1603.D.1 of the North American Free Trade Agreement.[31]

A

Accountant Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A. or C.M.A.
Agriculturist
including Agronomist
 Baccalaureate or Licenciatura Degree
Animal Breeder Baccalaureate or Licenciatura Degree
Animal Scientist Baccalaureate or Licenciatura Degree
Apiculturist Baccalaureate or Licenciatura Degree
Architect Baccalaureate or Licenciatura Degree; or state/provincial license[note 2]
Astronomer Baccalaureate or Licenciatura Degree

B

Biochemist Baccalaureate or Licenciatura Degree
Biologist Baccalaureate or Licenciatura Degree

C

Chemist Baccalaureate or Licenciatura Degree
Computer Systems Analyst Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma[note 3] or Post-Secondary certificate,[note 4] and three years' experience

D

Dairy Scientist Baccalaureate or Licenciatura Degree
Dentist D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental; or state/provincial license
Dietitian Baccalaureate or Licenciatura Degree; or state/provincial license
Disaster Relief Insurance Claims Adjuster
claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster
 Baccalaureate or Licenciatura Degree, and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years' experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

E

Economist Baccalaureate or Licenciatura Degree
Engineer Baccalaureate or Licenciatura Degree; or state/provincial license
Entomologist Baccalaureate or Licenciatura Degree
Epidemiologist Baccalaureate or Licenciatura Degree

F

Forester Baccalaureate or Licenciatura Degree; or state/provincial license

G

Geneticist Baccalaureate or Licenciatura Degree
Geologist Baccalaureate or Licenciatura Degree
Geochemist Baccalaureate or Licenciatura Degree
Geophysicist
including Oceanographer in Mexico and the United States
 Baccalaureate or Licenciatura Degree
Graphic Designer Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years' experience

H

Horticulturist Baccalaureate or Licenciatura Degree
Hotel Manager Baccalaureate or Licenciatura Degree in hotel/restaurant management; or Post-Secondary Diploma or Post-Secondary Certificate in hotel/restaurant management, and three years' experience in hotel/restaurant management

I

Industrial Designer Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years' experience
Interior Designer Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years' experience

J

K

L

Land Surveyor Baccalaureate or Licenciatura Degree; or state/provincial/federal license
Landscape Architect Baccalaureate or Licenciatura Degree
Lawyer
including Notary in the Province of Quebec
 LL.B., J.D., LL.L., B.C.L. or Licenciatura Degree (five years); or membership in a state/provincial bar
Librarian M.L.S. or B.L.S. (for which another Baccalaureate or Licenciatura Degree was a prerequisite)

M

Management Consultant Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years' experience as a management consultant, or five years' experience in a field of specialty related to the consulting agreement
Mathematician
including Statistician and Actuary[32]
 Baccalaureate or Licenciatura Degree
Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States)[note 5] Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years' experience
Meteorologist Baccalaureate or Licenciatura Degree

N

Nutritionist Baccalaureate or Licenciatura Degree

O

Occupational Therapist Baccalaureate or Licenciatura Degree; or state/provincial license

P

Pharmacist Baccalaureate or Licenciatura Degree; or state/provincial license
Pharmacologist Baccalaureate or Licenciatura Degree
Physician
teaching or research only
 M.D. or Doctor en Medicina; or state/provincial license
Physicist
including Oceanographer in Canada
 Baccalaureate or Licenciatura Degree
Physiotherapist/Physical Therapist Baccalaureate or Licenciatura Degree; or state/provincial license
Plant Breeder Baccalaureate or Licenciatura Degree
Poultry Scientist Baccalaureate or Licenciatura Degree
Psychologist State/provincial license; or Licenciatura Degree

Q

R

Range Manager/Range Conservationist Baccalaureate or Licenciatura Degree
Recreational Therapist Baccalaureate or Licenciatura Degree
Registered Nurse State/provincial license; or Licenciatura Degree
Research Assistant
working in a post-secondary educational institution
 Baccalaureate or Licenciatura Degree

S

Scientific Technician/Technologist[note 6] Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research
Social Worker Baccalaureate or Licenciatura Degree
Soil Scientist Baccalaureate or Licenciatura Degree
Silviculturist
including Forestry Specialist
 Baccalaureate or Licenciatura Degree

T

Teacher
College, Seminary or University teaching only
 Baccalaureate or Licenciatura Degree
Technical Publications Writer Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years' experience

U

Urban Planner
including Geographer
 Baccalaureate or Licenciatura Degree

V

Veterinarian D.V.M., D.M.V. or Doctor en Veterinaria; or state/provincial license
Vocational Counselor Baccalaureate or Licenciatura Degree

W

X

Y

Z

Zoologist Baccalaureate or Licenciatura Degree

See also

Notes

  1. ^ The job must be included in Appendix 1603.D.1 of NAFTA, which provides a list of provisions covered by the Agreement
  2. ^ "State/provincial license" and "state/provincial/federal license" mean any document issued by a state, provincial or federal government, as the case may be, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession.
  3. ^ "Post-Secondary Diploma" means a credential issued, on completion of two or more years of postsecondary education, by an accredited academic institution in Canada or the United States.
  4. ^ "Post-Secondary Certificate" means a certificate issued, on completion of two or more years of postsecondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.
  5. ^ A business person in this category must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic or bacteriological tests and analyses for diagnosis, treatment or prevention of disease.
  6. ^ A business person in this category must be seeking temporary entry to work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.

References

  1. ^ a b c d e f g "TN NAFTA Professionals". United States Citizenship and Immigration Services. United States Citizenship and Immigration Services. Retrieved February 24, 2016.
  2. ^ a b Romo, Harriett D.; Mogollon-Lopez, Olivia (2016). Mexican Migration to the United States: Perspectives From Both Sides of the Border. University of Texas Press. p. PT30. ISBN 9781477309674. The United States has a temporary foreign worker program specifically for Canada and Mexico called the Trade NAFTA (TN) program
  3. ^ "24 CFR Sec. 214.6, Citizens of Canada or Mexico seeking temporary entry under NAFTA to engage in business activities at a professional level". Department of Homeland Security. United States Government. Retrieved September 14, 2017.
  4. ^ Gera, Surendra; Songsakul, Thitima. "How is Canada Faring in the Competition for Internationally Mobile High-Skilled Workers?" (PDF). Industry Canada. p. 23. Employers of NAFTA-TN workers and software developers are exempted from this process.
  5. ^ Foreign Affairs and International trade Canada: Canada and the World: A History – 1984–1993: "Leap of Faith Archived October 27, 2007, at the Wayback Machine
  6. ^ NAFTA: Final Text, Summary, Legislative History & Implementation Directory. New York: Oceana Publications. 1994. pp. 1–3. ISBN 978-0-379-00835-7.
  7. ^ Appleton, Barry (1994). Navigating NAFTA: a concise user's guide to the North American Free Trade Agreement. Carswell. pp. 117–119. ISBN 9780459558260.
  8. ^ Congressional Quarterly Almanac, 103rd Congress, 1st Session. Vol. XLIX. Congressional Quarterly. 1994. pp. 171-174. ISBN 9781568020204.
  9. ^ United States State Department (June 14, 2018). "9 FAM 402.17 NAFTA PROFESSIONALS – TN AND TD VISAS".
  10. ^ a b Pub. L. 103–182, H.R. 3450, 102 Stat. 2057, enacted December 8, 1993)
  11. ^ "Clinton Signs NAFTA – December 8, 1993". Miller Center. University of Virginia. Archived from the original on October 10, 2010. Retrieved January 27, 2011.
  12. ^ 58 FR 69205 [1]
  13. ^ 58 FR 69212 [2]
  14. ^ 8 CFR 214.6
  15. ^ Iqbal, Mahmood. "The migration of high-skilled workers from Canada to the United States: Empirical evidence and economic reasons". eScholarship. Center for Comparative Immigration Studies. Retrieved September 14, 2017.
  16. ^ Larson, Aaron (November 7, 2014). "The Trade NAFTA (TN) Visa". ExpertLaw. Retrieved September 14, 2017.
  17. ^ "North American Free Trade Agreement (NAFTA)". Government of Canada. Retrieved September 14, 2017.
  18. ^ "TN NAFTA Professionals". U.S. Citizenship and Immigration Services. United States Government. Retrieved September 14, 2017.
  19. ^ "Rules and Regulations" (PDF). Federal Register. 73 (201): 61332–61336. October 16, 2008. Retrieved September 14, 2017.
  20. ^ Prencipe, Loretta W. (March 19, 2001). "Check prospects' eligibility for TN visa". IT World. IDG Communications, Inc. Retrieved September 14, 2017.
  21. ^ Helms, Matt (March 19, 2017). "Canadian specialized nurses will be allowed to work on U.S. visas". Detroit Free Press. Retrieved September 14, 2017.
  22. ^ a b "Table XVI(B) Nonimmigrant Visas Issued by Classification (Including Crewlist Visas and Border Crossing Cards), Fiscal Years 2005–2009" (PDF). U.S. State Department. Archived from the original (PDF) on January 9, 2010. Retrieved September 14, 2017.
  23. ^ a b c "TN Visas: Professionals under NAFTA". US Embassy Canada – Ottawa. US Embassy. Retrieved February 24, 2016.[permanent dead link]
  24. ^ "I-129, Petition for a Nonimmigrant Worker". United States Citizenship and Immigration Services. United States Citizenship and Immigration Services. Retrieved February 24, 2016.
  25. ^ "Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker". United States Citizenship and Immigration Services. United States Citizenship and Immigration Services. Retrieved February 24, 2016.
  26. ^ "Policy Memorandum: Changes to B-2 Status and Extensions of B-2 Status for Cohabitating Partners and Other Nonimmigrant Household Members" (PDF). U.S. Customs & Immigration Service. August 17, 2011. Retrieved September 14, 2017.
  27. ^ "Rules and Regulations" (PDF). Federal Register. 69 (47). March 10, 2004. Retrieved February 24, 2016.
  28. ^ http://www.ssa.gov/international/Agreement_Pamphlets/canada.html Totalization Agreement with Canada
  29. ^ "Professions Covered by NAFTA". The Embassy of the United States of America. Archived from the original on October 25, 2015. Retrieved February 24, 2016.
  30. ^ "Appendix 1603.D.1 Professionals". North American Free Trade Agreement. Office of the United States Trade Representative. Retrieved February 24, 2016.
  31. ^ "NAFTA Chapter Sixteen Appendix 1603.D.1" (PDF). Retrieved January 27, 2009.
  32. ^ "8 CFR § 214.6". www.nafsa.org. Retrieved September 7, 2018.
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