U.S.-Canada Mobility More Difficult in Trump Era

Reworked NAFTA could alleviate bottlenecks, immigration experts say

Roy Maurer By Roy Maurer June 15, 2017
U.S.-Canada Mobility More Difficult in Trump Era

Cross-border immigration between Canada and the United States—never ideal—has gotten more difficult during the Donald Trump presidential administration, a panel of industry experts said, but there's also a great opportunity ahead with the upcoming renegotiation of the North American Free Trade Agreement (NAFTA).

The panel outlined the challenges between the two neighbors and provided an inkling into the possibilities of a reworked NAFTA for attendees of the Council for Global Immigration (CFGI) 2017 Symposium.

Jonathan Grode, an attorney and U.S. practice director for law firm Green and Spiegel, based in Toronto, said that the biggest impact Trump has had on cross-border immigration and mobility has been a change in tone, which has led to "potentially harsher adjudications and stricter inspections at the border," as opposed to any actual statutory or regulatory changes.

"President Trump made a number of promises regarding immigration during the 2016 election campaign, and true to his word, he has tried to implement the promises that he made," he said. "But the effect of the changes that have successfully been put in place is minimal, compared with the effect on adjudication trends."

Evan Green, a senior partner at Green and Spiegel, described the border situation like this: "The officers who were difficult before the change in administration are way more difficult now because their executive chief has told them to be more difficult."

Regarding TN visas for Canadian workers under NAFTA, "each case requires more attention and dedication in terms of strategy than before," Grode added. "Gone are the days of easy facilitation. We do extensive prep sessions with applicants, including mock interviews over Skype."

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

One change Grode has seen at the border in the last several months has to do with NEXUS, the program that allows prescreened travelers expedited processing when entering the United States and Canada. "If you have an immediate family member with a criminal issue, the NEXUS applicant will likely be denied," he said. "Other than that, the processing times have slowed down tremendously, but the adjudications have been fairly consistent."

Green added that Trump's January announcement of a temporary ban on travel from seven Muslim-majority countries "created hysteria for companies across Canada," where many foreign nationals from those countries currently reside and work.

Grode said there will be a greater push for compliance investigations on the U.S. side of the border, whether they come from Immigration and Customs Enforcement or the Labor Department's Wage and Hour Division. "Start doing your internal risk management now," he said.

NAFTA May Get Better

Trump has argued that NAFTA, finalized in 1993, is "the worst trade deal ever."

The administration gave Congress official notice in May that it plans to renegotiate the agreement, and talks are set to open in August. Industry stakeholders such as the Society for Human Resource Management (SHRM) and CFGI have already submitted comments to the U.S. Trade Representative's office on potential changes.

Stephen Cryne, president and CEO of the Canadian Employee Relocation Council (CERC), based in Toronto and the leading workforce mobility education organization in Canada, worked in tandem with SHRM and CFGI to submit a wish list for changes.

"Canada and the U.S. are among each other's largest trading partners, and yet we have one of the most outdated frameworks for the movement of people [compared with] other trade agreements in use today," he said.

Some of the submitted changes include service delivery improvements at ports of entry that include:

  • Improved training and communication skills of border officers.
  • Alignment of policies, processes and terminology between agencies.
  • Clarity and transparency in adjudications of applications.
  • Improved technology and online portals.

"Then there are major points in renegotiation we feel are necessary," Cryne said, including:

  • Updating the list of TN-qualifying occupations to permit mobility of highly skilled professionals, business people and employees with technical skills. "One of the challenges with NAFTA is that it's over 20 years out of date," he said. "Companies are struggling to fit a square peg into a round hole when trying to fit people into the eligible occupations." He recommended a much broader list of occupations, or no list at all. At a minimum, the TN occupations list should be updated to reflect contemporary occupations, and a provision for an annual review of the list should be added.
  • Implementing credential recognition between countries.
  • Implementing Known Employer programs that expedite processing. "CFGI has been pushing for this, to ensure better processing and more predictability at the ports of entry," he said.

Cryne used survey results from research conducted by CERC and CFGI in the filed comments.

"We found in the survey that majorities of respondents say there is inconsistent decision-making at the border. In addition, despite the Beyond the Border initiative, no service improvement has been seen. One-fourth of respondents said projects are delayed, [and] there are cost overruns and lost business due to border delays."

The survey will be released within the next few weeks.

Cryne cited another 2017 CERC survey of 10,000 people from 20 countries that found that the United States and Canada were the top two choices for a relocation destination. The U.S. had dropped 5 percentage points from 2012, however, and Canada had moved up two spots from No. 4 to No. 2 during that time, according to the survey.

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