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Employers cite processing delays, outdated occupations list as problem areas
As North American Free Trade Agreement (NAFTA) renegotiation talks begin, employers are calling for better rules governing how professionals and business travelers cross the Canada-U.S. border.
"The NAFTA renegotiation presents an opportunity to improve the flow of skilled employees between the U.S. and Canada," said Lynn Shotwell, executive director of the Council for Global Immigration (CFGI), a Washington, D.C.-area advocacy organization supporting workforce mobility and employment-based immigration and a Society for Human Resource Management affiliate. "Timely, predictable and flexible labor mobility is critical to employers' ability to meet their business objectives."
She listed several areas in need of improvement:
NAFTA's implementation of permissive temporary entry policies for workers and business travelers has already boosted economic growth and expanded the talent pool available to employers in the two countries, according to Stephen Cryne, president and CEO of the Canadian Employee Relocation Council (CERC), a Toronto-based organization representing the workforce mobility interests of Canada's largest employers.
"The overall impact of the rules of temporary entry have delivered tremendous benefits to the businesses and economies in both countries," he said. "While much emphasis is placed on the movement of physical goods, which account for the majority of trade, there is significant growth in the trade in services between Canada and the U.S., which relies on the free movement of business executives and professionals. Virtually all sectors of the economy have benefited, particularly those with operations on both sides of the border."
However, the trade agreement's cross-border labor mobility provisions are far from ideal. "The movement of employees between Canada and the United States is fraught with delay, confusion [and] inconsistent decision‐making and is confined by an outdated NAFTA professionals list that does not reflect the modern skills needed by employers in both countries," Cryne said.
CFGI and CERC recently polled 87 organizations from several industry sectors with employees who frequently travel or are transferred between the U.S. and Canada.
When asked what aspects of cross-border travel were most challenging, 68 percent responded compliance with immigration regulations; followed by understanding when a business entry visa, as opposed to a work permit, is required (60 percent); and differing rules between the two countries (58 percent).
More than half of the employers surveyed (53 percent) reported that their employees have experienced delays unrelated to travel volumes when crossing into Canada, and 61 percent reported delays when crossing into the U.S.
Inconsistent decision-making by border officials was identified as the most common reason for delays when crossing the border, with 76 percent of employers citing this for employees entering the U.S. and 67 percent reporting this for employees entering Canada.
Employers also felt that border officials lacked sufficient training and resources to effectively and speedily adjudicate applications for entry. Fifty-eight percent of employers said this about U.S. border officials, and 46 percent cited this about dealing with Canadian border officials.
Calls to Update Occupations List
Over half of the employers surveyed (56 percent) felt that the current NAFTA professional occupations list, intended to facilitate the movement of skilled workers, is outdated.
"It is now approaching 25 years since NAFTA came into effect and since those occupational classifications [on the list] were finalized," said Andrew Wilson, a partner in the immigration law firm Serotte Reich Wilson, based in Buffalo, N.Y. "Obviously, professions, industries and needs have evolved over that time. This is particularly true within technical fields such as IT and engineering."
Wilson clarified that it's not necessarily the occupational classifications themselves that need to be updated but that there should be periodic guidance issued on changes within those professions.
"The list is fine," he said. "But right now, CBP [Customs and Border Protection] uses the Occupational Outlook Handbook [OOH] to determine whether a position qualifies under a certain occupational classification. The OOH can be slow to keep pace with changes in industries, and it can be frustrating to convince CBP of new roles and duties within certain occupational classifications."
Examples include user experience and interface design roles under the Graphic Designer, Computer Systems Analyst or Software Engineer occupational classifications, or technical sales roles under the Engineer, Chemist, or Biologist occupational classifications.
"We have companies confirming that this is what software engineers do now, and CBP or USCIS [U.S. Citizenship and Immigration Services] is questioning it because it is not in the OOH," Wilson said. "The OOH is still seen as 'gospel' and even trumps expert opinion letters in some cases."
Concern NAFTA Talks Could Make Things Worse
Many in the business community fear that not only could expanding the list of eligible professions be out of reach, but also that preserving the existing labor mobility provisions could be endangered under President Donald Trump's protectionist administration. Perhaps tellingly, there was no mention of labor mobility when the U.S. released its objectives for NAFTA negotiations in July. Nor was it identified as an area that the U.S. wants to maintain. "While we know it's a high priority for Canada and Mexico, the U.S. position [on labor mobility] is opaque at this point in time," Cryne said.
Wilson said he doesn't foresee any major changes to the labor mobility provisions of the trade agreement but that changes in interpretation of the rules to meet a more-restrictive mandate could become a reality. "We've already seen this with H-1B filings and a specious new USCIS position that any job that falls under a Level 1 prevailing wage cannot qualify as a specialty occupation. We have also seen this now with TN applications for Mexican nationals through U.S. Consulates in Mexico. Although there is no prevailing wage requirement for TNs under NAFTA, we have had to overcome initial denials where the consular officer had an issue with compensation when the individual was paid out of a Mexican division of the company."
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