TN Visa Category Left Unchanged in NAFTA Successor Agreement: The “United States-Mexico-Canada Agreement”

The governments of the United States, Mexico and Canada recently concluded the process of renegotiating the North American Free Trade Agreement (NAFTA), a trilateral trade bloc agreement that originally came into force on January 1, 1994. The successor agreement has been descriptively renamed as the United States-Mexico-Canada Agreement (USMCA) and it is anticipated that Presidents Trump, Enrique Peña Nieto and Prime Minister Justin Trudeau will sign the agreement on November 30, 2018, before it is submitted to U.S. Congress and its respective counterparts for a vote and any necessary enacting legislation.

While the USMCA contains new and updated terms and provisions concerning various substantive areas, including tariff arrangements in the automotive sector, improved labor and environmental rights, and engaging in trade with non-party countries, Chapter 16, which contains the provisions governing the TN non-immigrant visa category for temporary workers, survived intact and with no material changes. The TN Visa classification permits qualified Canadian and Mexican citizens, who generally must possess a minimum of a bachelor’s degree or its equivalent in a field directly related to the targeted employment specialty area, to come into the United States for a renewable temporary period of up to three years to serve in professional roles that span occupations such as accountancy, engineering, dentistry and social work. A full list of eligible professions can be found at Appendix 1603.D.1 of the Agreement.

While there was some initial speculation that limitations would be imposed on the TN Visa program in connection with President Trump’s ‘Buy American, Hire American’ initiative, in the end the program survived in its current form, including the list of eligible professions referenced above. There was, however, some textual reorganization and renaming of article and section headers, as described in detail here. Despite this maintenance of status quo with respect to eligibility criteria, questions remain as to what may happen from a procedural perspective. For example, it is unknown whether Canadian nationals will still be able to present themselves at a port of entry for application or whether they will be required to submit an application in advance to either a U.S. Embassy/Consulate abroad or directly to U.S. Citizenship and Immigration Services (USCIS) before attempting to enter the United States, as Mexican nationals are currently required to do.

Moreover, in today’s tougher adjudicatory environment for immigration benefits, it is now more critical than ever that employers engage experienced immigration counsel to help them navigate the complex rules, procedures and pitfalls of the TN visa process in order to avoid negative outcomes, which can impact not only the instant application but also subsequent applications for immigration benefits. Considerations such as where and when to apply, establishing the nexus between the applicant’s credentials and the proposed job category, how to best present the offered position, and addressing any potential grounds of inadmissibility – particularly in light of Canada’s recent move to legalize cannabis – will continue to require a holistic and savvy legal strategy.

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