Cross-Border Visas Survive NAFTA Negotiations

Agreement misses opportunity to modernize TN visa program, some say

Roy Maurer By Roy Maurer October 5, 2018
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​Visas for professionals from Canada and Mexico to work in the United States will be kept in the treaty taking the place of the North American Free Trade Agreement (NAFTA).

The visa provisions in the U.S.-Mexico-Canada Agreement mirror those in NAFTA, which allow Canadian and Mexican nationals to work in the U.S. under TN visas, renewable every three years, indefinitely. It's estimated that almost 100,000 TN visa holders are currently working in the United States in professions ranging from doctors and lawyers to teachers and engineers. The program is seen as an alternative to other high-skilled visa programs such as the overburdened H-1B visa category.

"In terms of immigration provisions … there's nothing really to speak of," said Benjamin Kranc, an immigration attorney in Toronto and senior principal of Kranc Associates. "A comparison of the immigration provisions reveals that, except for some tweaking in the verbiage, the basic elements of the relevant programs remain the same."

President Donald Trump had called for limits on TN visa renewals, and Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, had asked trade negotiators to consider scaling back the program when renegotiating NAFTA.

"I don't think there was serious concern that TNs would be eliminated or greatly changed, but no one could say for sure," said Andrew Wilson, an immigration attorney and partner at Lippes Mathias Wexler Friedman, based in Buffalo, N.Y. "I'm relieved that TNs will survive, and I hope individuals in TN status will no longer have to hear that their work status will soon be eliminated."

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The TN program allows skilled workers in North America to move freely between Canada, Mexico and the U.S. and to fill skills shortages in each country, explained Leon Fresco, an immigration attorney in Holland & Knight's Washington, D.C., office and the primary drafter of the U.S. Senate's comprehensive immigration reform bill in 2013. "It also more easily allows a company that operates in one North American country to expand its operations and invest in additional new operations in the other two countries. 

Wilson said he’s seen it used effectively when North American companies want to quickly send workers from Canada to U.S. operations. “We see this a lot for engineering projects in the U.S. where the U.S. branch needs some support and expertise from the Canadian side. Without the TN, some businesses in the U.S. would have issues meeting certain project needs. I know some may view TNs as a zero-sum game for U.S. workers, but that hasn’t been my experience—to the contrary, I see many TNs used to supplement the U.S. workforce and create exponential growth for work and projects," he said.   

Professions List Remains the Same

The U.S. did reject requests from Canada and Mexico to expand the number of job categories for the visa, according to administration officials.

That's seen as a missed opportunity by some, as the current list of professions and education requirements is outdated, according to business immigration experts who would like to see the list updated to reflect new technology careers.

"The challenges associated with outdated occupational classifications will therefore continue to be addressed on the front line with Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) navigating the ever-changing dynamics of various professions," Wilson said.

Potential Process Changes

Procedural changes could still result from the regulatory process implementing the new agreement, experts cautioned. These changes could come in the form of updated applications for the visas and new rules for approval.

Currently, Canadians can just show up at the border, apply for TN status and be fast-tracked across. Mexicans must apply through the U.S. Consulate for approval before entering the United States, but both methods are still faster than petitioning through USCIS.

L-1 visa processing at the border for Canadian intracompany transfers is already undergoing a change. Under a pilot program that ran from April to October, Canadian executives wishing to enter the U.S. with an L-1 visa had to send their documentation to USCIS ahead of time.

"I would not be surprised if a similar proposal is eventually put forward where TNs will only go through USCIS service centers as well," Wilson said, adding that he didn't see this coming out of the new trade agreement but through agency policy.

Any regulations would take time to complete and "may not be finalized until at least 2020, which means if the administration changes, they may not be finalized at all," Fresco said.

Next Steps

The leaders of the three countries are expected to sign the agreement before their respective legislatures ratify the deal in 2019.

"This could take a number of months, and actual implementation could take a further number of months thereafter," Kranc said. "For now, NAFTA remains in force, and all aspects of NAFTA, including the immigration aspects, continue to operate as they have until now."

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