Posts Tagged ‘NAFTA’

The TN Status and the New US-Mexico-Canada Agreement

Monday, October 1st, 2018 by W. Scott Railton

The United States, Canada, and Mexico have announced that they have reached an agreement to supplant the longstanding North American Free Trade Agreement (NAFTA).  The new agreement will be entitled the U.S.-Mexico-Canada Agreement (USMCA).  For now, the TN professional status will remain largely unchanged.

The immigration provisions of the new Agreement are housed in Chapter 16, as was the case with NAFTA.  For side by comparison, click on the links in the last sentence.

The USMCA’s Chapter 16 adopts much of the old NAFTA language for “Business Visitors,” “Traders and Investors,” “Intra-Company Transfers,” and “Professionals.” “Professionals” is what we commonly refer to as the TN category, and the issue I will highlight here.

Here’s one new thing:  Article 1602, Paragraph 3, of the USMCA includes language not in the NAFTA, leaving the door open for future restrictions via regulation by any Party:

3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.

Side by side, the lists of Professionals in Appendix 1602.D.1 of the USMCA and Appendix 160-3.D.1 of NAFTA are basically the same.  However, it is not a complete copy and paste:

  • The USMCA Appendix includes an additional Footonote 7 to the Medical Laboratory Technologist/Medical Technologist category, which states that “A businessperson in this cateogry must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic, or bacteriological tests and analyses for the prevention of disease.”
  • The USMCA Appendix also includes an additional Footnote 8 to the Biologist category, which states, “In accordance with the NAFTA 1994 Commission decision of October 7, 2003, the term “Biologist” included the profession Plant Pathologist.” This Footnote obviously reflects the 2003 adjustment to the list.
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The new Article 1606 covers a “Working Group,” which meets once per year to consider administration of the Chapter. The Working Group was already in existence with NAFTA, but the USMCA adds an additional review responsibility for the Group, concerning technologies:
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(e) Issues of common interest related to temporary entry of business persons, such as the use of technologies related to processing of applications, that can be further explored among the Parties in other fora.
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Many thought any agreement would include numeric restrictions for TNs.  Not present. In fact, the original restrictions on Mexico’s TNs are stricken from the Appendix 1603. The countries are expected to collect and share data on entries, as per the Article 1605 Provision of Information requirements.
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The Agreement also does not include a revision of the TN list. Experts seem to agree that the list of eligible occupations needs to be updated. Many new professions have come into existence over the last 25 years.  The Information Technology sector is full of new occupations, such as web developers, database administrators, architects, and software engineers.  Medical science and health care professions have similarly evolved–nurse practitioners are filling a vital role for hospitals, and sometimes are denied TNs for being more than a Registered Nurse. Nonetheless, any attempt at re-doing the occupation codes may have led to a more restrictive outcome, with less categories, numeric restrictions, and tighter qualifications. The U.S. has been limiting immigration in all other areas, and such would’ve reasonably be expected here.
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One question going forward is what do we call the TN now?  TN is short for Treaty NAFTA, but with the change of name to the trilateral treaty, perhaps the work authorization category may change in name too. The White House has been intent on doing away with NAFTA, and so perhaps the TN name might do the same way, in time.
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My impression is the negotiators had their reasons on each side to avoid a major rewrite on Chapter 16.  Other trade issues probably carried more weight, and fast advancing deadlines set by the White House may have ended up leaving this chapter for later. The U.S. Office of Trade Representative held hearings on the mobility issues, and so it is not like the issues were overlooked.
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My greatest concern for the next year is that the U.S. may continue to use regulation to alter the TN category further. The Administration has been very effective at limiting immigration through restrictive regulation and categorical interpretations. One possibility is that DHS may try to move TN adjudications away from the border and to USCIS Service Centers. They are already testing this idea with L adjudications, but the process only seems to slow things down for businesses.  I attended a meeting at the Blaine Peace Arch earlier this year concerning the L-1 Pilot Program where the USCIS Director speculated on the possibility of TN adjudications at the Service Centers. Also, as with all immigration applications, I expect the cost of TN applications to rise for employers, as the government paperwork becomes more demanding.
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This is very fresh news, and so other developments and interpretations may arise.  We will continue to follow this closely.
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USCIS Narrows Economist TN Category

Monday, December 18th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration and Services (USCIS) continues to finds to limit legal immigration to the U.S. Today’s announcement concerned NAFTA–specifically, the Economist category. The press release is posted below.

NAFTA’s schedule of TN professions is out of date. It was created in the early 1990s, before so many changes brought on by new technologies. The new guidance specifically excludes Financial Analysts, Marketing Analysts, and Market Research Analysts. Undoubtedly, many person filling these roles with companies are trained in economics, and are providing valuable advice to their employers related to economics. Nevertheless, this is the current state of immigration reform at USCIS. So many of these reforms will simply drive valuable professionals to Canada and Mexico. The Administration’s premise that American companies are looking abroad for employees first is fundamentally flawed.

We’ve been asked what to expect with NAFTA. This announcement is one of the clearest yet that the Administration is looking at individual TN categories. Employers should not wait until the last minute consider renewals of TNs.

Here’s the announcement:

WASHINGTON —U.S. Citizenship and Immigration Services (USCIS) announced today that it is clarifying policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist.

The North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the U.S. to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, resulting in inconsistent decisions on whether certain analysts and financial professionals qualify for TN status as economists.

TN nonimmigrant status is intended to allow a limited number of professionals and specialists to work temporarily in certain specifically identified occupations in the United States. This updated guidance provides USCIS officers with a specific definition of one such category – economists – allowing them to adjudicate applications in a way that complies with the intent of the agreement.

This policy update clarifies that professional economists requesting TN status must engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.

This policy update is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations.

Interim and final policy memos are official USCIS policy documents and go into effect on the date the memos are issued.

USCIS is committed to carrying out the directives of the President’s Buy American and Hire American Executive Order to better protect the interests of U.S. workers. Ensuring the integrity of guest worker programs is consistent with our Buy American, Hire American initiatives.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and Instagram (@USCIS).

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Mission Canada Makes Administrative Changes to E Visa Process

Saturday, December 16th, 2017 by W. Scott Railton

Every so often, Consulates change their administrative procedures for handling E-1 Trader and E-2 Investor Visas. Mission Canada recently announced certain changes, effective December 5th, 2017. Most notably, initial applications will be reviewed during a ten business day period, after which an interview may be scheduled. It is possible that this change may slow down the actual processing timeline, but time will tell.

Here’s the message from Mission Canada:

We are pleased to inform you that our unit has implemented a new, streamlined E-visa application process for first time E visa applicants and applicants renewing their E visas. Our new online appointment system, processing change will allow us to receive and review E-visa applications before the applicant schedules an in-person interview (as opposed to the old system, which permitted applicants to schedule an appointment before submitting an application or supporting documentation). We anticipate that the new system will speed up processing time and help us provide better customer service to you and your clients.

Under the new system, E-visa applications will be sorted into two processing streams based on the time needed to review the required documentation.

• New Cases and Renewals – First-time applicants and those wishing to renew the registration status of their E-visa company will be offered a “deferred interview” appointment. While applicants will still need to first create an appointment profile and pay the required visa application fee online at https://ais.usvisa-info.com, the interview will be deferred until applicants have electronically submitted their application and supporting documents to the U.S. Consulate in Toronto via evisacanada@state.gov. Once their application has been reviewed, which requires at least 10 business days, we will send applicants instructions on how to make an appointment for an in-person interview. Applicants will be unable to schedule an appointment until then. Only applications in the queue for “New Cases and Renewals” will be considered for company registration or re-registration.

• Employees of Registered Companies and Dependents – Employees of currently registered E-visa companies, and qualifying family members of current E-visa holders, may schedule the next available appointment in Calgary, Montreal, Ottawa, Vancouver or Toronto.

For more information please visit our website listed below:

https://ca.usembassy.gov/visas/treaty-trader-and-investor-visas/

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Immigration In A Time of Restrictions

Saturday, July 15th, 2017 by W. Scott Railton

Immigration restrictions are one of the defining characteristics of the Trump Administration, which is now about 6 months in. Each week it’s something new, but the overall picture is the Administration intends to restrict all immigration, however it can.

I know from talking with clients that there is a great deal of fear and concern. Know that despite all the restrictive activity, the agencies are still granting petitions and visas, at least outside of those directly subject to travel bans. There may be longer delays, and the likelihood of increased red tape has to be anticipated. Sometimes, caution is needed, and frankly, competent legal advice is sometimes very valuable. Understanding things ahead of time is more likely to lead to predictable outcomes. This is how we try to help.

Here are some of the latest developments:

  • The Supreme Court will take up the travel ban case this fall.  In the meantime, the Court permitted a revised, limited ban to go forward. Lawsuits immediately commenced, on just how to deal with the Court’s limitations, including whether grandparents could be exempt. As this drags on in Court, I can’t help but wonder if the emergency aspect of these orders is moot. So did SCOTUS, by the way, when they granted certorari. Meanwhile, consulates in certain countries aren’t issuing visas like they ordinarily have in the past. Consular officers have many ways to deny and/or delay visa applications, with or without an official travel ban. There is no judicial review of visa denials. Some consulates have always been tougher than others, but this is different. Recently, I’ve heard of some 35 Pakistani doctors who were unable to get visas for unexplained reasons. Long-time practitioners say they’ve never seen anything like it.
  • The U.S. Trade Representative notified Canada and Mexico that it wishes to renegotiate the terms of North American Free Trade Agreement (NAFTA). Public comments were accepted, and three days of hearings were held in Washington D.C. to gauge priorities. The focus of the discussion seems to be on trade (think Detroit/Toronto auto industry; softwood lumber), but trade in service and immigration was discussed. Some calls were made to update the list of NAFTA TN professions to include Software Designers, Financial Analysts, IT Consultants, Physician Assistants, and Nurse Practitioners. There is a need for an update, as the list is nearly 25 years old, but there is great fear that the list will be excessively limited. We will be monitoring NAFTA TN developments closely.
  • The Deferred Action for Childhood Arrivals (DACA) program continues for now. This program allows certain undocumented “Dreamers” to get temporary work authorization and avoid deportation. President Trump seems in favor of the program. However, several states have joined to challenge the program, and DHS Secretary Kelly says the program may need to end. Attorney General Sessions, historically an opponent when he was in the Senate, is equivocal on whether he will defend the program. Other Obama measures, such as relief for parents of U.S. citizens, have already been officially rescinded.
  • Temporary Protected Status (TPS) is a form of humanitarian relief provided to persons from certain designated countries, where great harms have occurred, or continuing dangers exist. For example, in recent years, citizens of Haiti and Nepal have been able to obtain TPS, due to earthquake and rebuilding. The Administration indicates it may soon cancel TPS statuses in a number of cases.
  • Sanctuary cities is another well-reported flashpoint. President Trump has issued an order to review defund designated as sanctuary cities, and AG Sessions has actively been speaking out on the subject.
  • The Pentagon is looking at canceling its Military Accessions Vital to the National Interest program, which provided a path to naturalization for persons who enlist and who are vital to the national interest. Examples include Iraqi interpreters and specialized medical workers for the military. Our colleague Margaret Stock has been a driving force in the success of this wonderful program. It would be a shame for the program to be pulled, since the troops get much needed support from certain persons with vital skill sets. It’s not hard to fathom that we should take care of interpreters who are helping us fight terrorism.
  • The President’s budget includes substantial funding for planning the wall, and for more boots on the ground for immigration enforcement. It includes $1.5 billion for added interior enforcement and $2.6 billion for Customs and Border Protection.  Expect a full-on debate on these figures soon in Congress.
  • Access to legal counsel is under attack, as the Department of Justice sent a cease and desist letter to NW Immigrant Rights Project, requiring that they file a Notice of Appearance if they are going provide counsel to persons in removal proceedings. NWIRP historically provides limited representation at the Detention Center. For example, they provide education sessions and initial case assessments. DOJ is trying to halt all that. NWIRP has filed suit in federal court.
  • The USCIS Field Offices and CBP Ports of Entry are asking many more questions about use and possession of legalized marijuana. Officers from each agency now have scripts, prepared by counsel, designed to extract disqualifying admissions (e.g. “Yes, I smoked pot, in Washington, where it’s legal.”). These admissions become the basis for denying admission, based on a violation of federal law. Persons with no criminal record denied visas, entry, green cards or naturalization–based only their admission to having used legalized pot at some point. Recently, a group of Congress representatives wrote the agencies for more information on these practices.
  • The Administration also recently suspended implementation of the International Entrepreneur Rule, which was designed to provide noncitizen entrepreneurs of Silicon Valley and elsewhere a pathway to stay in the U.S. and continue to develop their ideas and businesses. Basically, this was another bridge-gap administrative rule by the Obama Administration, to temporarily address a need, since Congress can’t get the job done. While I found the rule awkward, it’s not a bad idea, and would guarantee more American jobs. Its no secret that many, many of the tech companies in the United States have noncitizen founders. The American dream often starts in a garage somewhere. I fear that garage may end up in another country.
  • There has been a spike in persons entering Canada illegally, to claim asylum. This is well-reported, and happening right here in Whatcom County with some frequency. The Third Safe Country Agreement between the US and Canada prevents persons from claiming asylum at the ports of entry in most circumstances, as this would be deemed as forum shopping. However, if persons enter illegally, and arrive on Canadian soil via the U.S., they may claim asylum. There is a growing perception that Canada is more welcoming to refugees.

 

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NAFTA Renegotiations and the TN Professional

Thursday, May 25th, 2017 by W. Scott Railton

On May 18, 2017, the U.S. Trade Representative informed Congress that President Trump intends to commence negotiations with Canada and Mexico with respect to the North American Free Trade Agreement. On May 23rd, the Office of the United States Trade Representative published notice in the Federal Register, requesting comments on negotiating objectives regarding modernization of NAFTA.

The summary of the notice states that “NAFTA was negotiated more than 25 years ago, and while our economy and U.S. businesses have changed considerably over that period, NAFTA has not. The United States seeks to support higher-paying jobs in the United States and to grow the U.S. economy by improving U.S. opportunities under NAFTA.”

The Notice seeks written comments by June 12, 2017. A hearing will be held on Tuesday, June 27, 2017 in Washington D.C. Any intent to testify must be submitted by June 12th, 2017.

What do we know?

Trump originally said that he would pull the United States out of NAFTA, wholesale, but it appears advisors have prevailed upon him to renegotiate. America is quite ingrained in trade of all sorts with Canada and Mexico, and an abrupt cessation would be harmful.

Trump is serious about curtailing immigration, legal and illegal, by all indications. He’s also serious about trying to protect the U.S. worker. These facts do not bode well for the TN category as a whole.
The occupation schedule for TNs is roughly 25 years old, and way out of date. There is need for modernizing the schedule, provided such efforts are made in good faith.

Many sectors are impacted by the TN visa. Hospitals rely on the TN to employ nurses, physicians (research/teaching), recreational therapists, physical therapists, pharmacists, medical laboratory technologists, and others. Institutions of higher education use the TN to employ professors. Municipalities use the category to employ urban planners. Several professions in agriculture are represented, including soil scientists, sylviculturists, animal breeders, animal scientists, and horticulturists.

This Administration takes pride in disruption.

Ultimately, I expect many employers will push back on limitations, but there could be much debate. Unions and workers may have much to say. NAFTA involves all sorts of trade issues, and immigration may be pushed to the side, or not given sufficient discussion. There has been a tendency in recent years to limit immigration in trade agreements.

This is an important time for businesses and business organizations to be vocal on this point. Employees in TN status need to pay attention, as the prospective unavailability of a TN needs to at least be considered. Persons with paths to immigrate will need to consider the TNs nonimmigrant requirement, before making any application or traveling abroad.

We’ll keep monitoring developments with NAFTA and the TN professions, and are available to discuss.

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Trump’s Immigration Reforms, Speculatively

Friday, November 11th, 2016 by W. Scott Railton

President-Elect Trump says, “We’re going to look very strongly at immigration.” Immigration and border security were cornerstone issues of his campaign. The Republicans have majorities in the Senate and the House, and he has the ability to appoint at least one Supreme Court judge immediately. The path seems pretty clear for major immigration reforms.

We’ve been receiving client queries, understandably concerned. I think we have to anticipate some pretty big changes, most of which will restrict immigration. Some of these changes may come very early in the administration, while others will take some time.

Here are a few thoughts:

• The Deferred Action for Childhood Arrivals (DACA) program is in jeopardy. This is a program created by the Obama administration without Congressional approval. Trump has threatened to undo many executive orders, and this program will receive scrutiny. Each case has to be evaluated on its own, but non-profit organizations which we respect are advising, generally, to not file new cases for DACA benefits, not travel on advance parole, and consider renewal applications on a case-by-case basis.

• NAFTA TN categories may receive new scrutiny. Trump was very, very critical of NAFTA during his campaign. NAFTA includes provisions for the TN work authorization for certain professions. There is some discussion among experts that even if NAFTA is scrapped, a Canadian Trade Agreement would be possible. Canada has already expressed interest in re-negotiations and improving the terms of the trade deal. From my perspective, there is much room to improve upon the TN schedule of professions, but HR departments and employers would be harmed by doing away with the category. For example, lots of hospitals take advantage of the RN category.

• Expect changes to the H-1B Specialty Occupation program. Trump’s team of advisors have been critical of this program for a long time. I imagine they’ll raise filing fees and/or cut quota numbers; heighten compliance measures; and perhaps introduce a soft labor market test. It might take some time to do this, but legislation of this sort is already drafted.

• Executive Orders issued concerning immigration may be stricken on “Day 1,” according to Trump. Countervailing order may be issued in some cases.

• There will likely be proposals to revise the immigrant visa quota system, with a greater emphasis on merit and employment based immigration, as opposed to family-based immigration.

• Some sort of wall on the southern border will be proposed. A hallmark of Trump’s campaign was that he would build a wall, and Mexico would pay for it. Cost of the border security measures will be the issue, and it will likely be cash-grab for defense contractors.

• A repeal of the Affordable Care Act may impact some immigrants. Any extension of government aid to immigrants will likely be curtailed.

• Electronic work authorization verification (E.g. E-Verify) will be first encouraged, perhaps through incentives, and required after legislation passes.

• Various temporary work authorization programs may be limited or cut (e.g. Temporary Protected Status, H-4 work authorization, temporary work authorization while applications are pending). Regulations related to these programs may be changed relatively quickly via emergency processes.

• Immigration Court proceedings may be streamlined, as far as the administration can get away with, similar to how things were after 9/11.

• Many immigrant advocacy groups are publishing advisories. We like the Northwest Immigrant Rights Project and their work. The National Immigration Law Center is another good organization.

• Senator Mitch McConnell said this week that immigration discussions will be conducted behind closed doors, and then presumably pushed through Congress. The Center for Immigration Studies is a well-known think-tank in favor of reducing immigration, and has published various ideas on how to do so. They have been waiting a long time to help re-write U.S. immigration law, and this seems to be their time.

U.S. immigration is what we do. We will of course be following developments closely, periodically posting here, and writing and speaking elsewhere on the subject. Now is a time when employers really want to pay close attention to potential changes in the law, and make themselves heard when necessary. Changes will have both intended and unintended consequences, and may come fast. Now is also a time to consider whether employer compliance with immigration law is in good shape. We can help.

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Optimizing TN and L Petitions Submitted to CBP

Wednesday, September 17th, 2014 by W. Scott Railton

U.S. Customs and Border Protection is attempting to steer TN and L applicants to certain ports of entry and pre-flight inspection facilities in Canada for “optimal” processing. TN and L petitions can still be submitted at any Class A port of entry. However, CBP has designated certain ports of entry “that will ensure a more efficient approach to processing the high volume of TN and L applicants.”

The list includes major airports in Toronto, Vancouver, Calgary, and Quebec, as well as ten major land port of entries, including Highgate, Derby Line, Alexandria Bay, Peace Bridge, Rainbow Bridge, Champion, Detroit Canada Tunnel, Detroit Ambassador Bridge, Blaine Peace Arch, and Sweetgrass, MT. The CBP website also lists preferred time for the presentation of petitions, with most ports favoring times in the middle of the week. They really need to accommodate applicants on the weekend as well, since many working in the U.S. will drive to the border to renew over the weekend.

Time will tell how this plays out, but I am skeptical. In the old days, the ports used to have Free Trade Officers who were expert in NAFTA matters.  They would usually take a reasoned approach to adjudications, and were amenable to hearing from attorneys on more technical points. Since 9/11, that has fallen by the wayside, and there have only been limited attempts by the agency to cultivate and put forth such expertise. Meanwhile, adjudications at the border have become increasingly erratic. These tendencies of border adjudicators have led some attorneys to opt for the less convenient processing that is possible with USCIS.

If the agency is going to do this, I would suggest that it is needed at more than 10 land ports. There are many, many more ports of entry on the Canadian border, and they all should have expertise in NAFTA matters.

Further, it is a little concerning that CBP highlights as the impetus for this program “the need for a more efficient approach to processing high volume of TN and L applicants.” Efficiency can mean many things, sometimes good, sometimes bad, but it’s not usually the first word that comes to mind when someone seeks an adjudication of a matter. Fairness is what most people seek first.

All this said, building a bank of NAFTA expertise within the agency is much needed, and this is possibly a start.

 

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