BAHA, USMCA and TN Visas
January 14, 2019videoBy Hugo Rojas
In the area of employment-based immigration, the laws have not changed, but there have been actions at the executive level that make it more difficult for United States businesses who have international workers. The new U.S. Mexico Canada Agreement (USMCA), the proposed update to the North American Free Trade Agreement (NAFTA), could be impacted by the current climate.
For example, in 2017 President Trump signed the “Buy American Hire American” Executive Order, also known as “BAHA”. It is a call to reform, and add restrictions to, the H-1B visa program and other employment-based immigration programs. The Executive Order did not eliminate H-1B or other employment-based visas or change any of the regulations, but it has influenced USCIS decision-making in adjudicating those cases. BAHA has led to increased examination and unlawful denials of cases in all work visa categories. This environment has made it tougher on US businesses who have an international workforce. That is why the USMCA is worthy of attention.
USMCA was announced earlier this month. Fortunately, the work visa provisions of NAFTA seem to have avoided any changes. Among NAFTA’s features is a provision which opens opportunities for a set list of professional workers to be eligible for a special work visa called a TN visa. Those visas allow Canadian and Mexican nationals to work in the U.S. for American or foreign employers for a renewable term of three years.
However, as we have seen with H-1Bs, procedural and administrative changes can have a big impact. Under the TN program, Canadians, for example, can just present themselves at a port of entry, and show their qualifications to gain admission. That is one of the primary advantages of the program. In an environment where restrictions are increasing, we don't know whether that will continue – especially given where the current administration has headed with other work visa programs. The new agreement potentially opens up the TN program to renewed scrutiny and increased restrictions.
For now there are no changes, but as the agreement moves through Congress for approval, and as the Department of Homeland Security has the opportunity to determine how to implement its provisions, it will be important to stay informed on any future developments.
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