When President Trump initiated the NAFTA renegotiating process back in May 2017, I was hopeful at what it could mean for Canadians, Americans and Mexicans aiming to work across borders. As an immigration lawyer, my focus was not on the trade issues that dominated the media’s attention, such as supply management, the automotive sector, and dispute-settlement. Rather, my attention was on rules governing business visitors, traders and investors, intra-company transfers, and professional occupations found in Chapter 16 of the Agreement. In 2017 alone, the U.S. issued just over 16,000 TN work permits to Canadian and Mexican citizens. Specifically, I was hoping the Canadian government would push hard to modernize the outdated list of 63 designated professions that enable Canadians, Americans and Mexicans, with relative ease, to obtain renewable work permits.
The original list of NAFTA professionals has always been problematic, given its seemingly random nature. For example, accountants, architects, lawyers, and economists predictably make the cut, but they are paired alongside graphic designers, hotel managers and sylviculturists. When NAFTA was ratified in 1993, the IT industry was still in its infancy, as was the Internet, which may explain why only computer systems analysts made the list. That said, programmers and software developers were never included on the list, despite their existence in the nineties. Flash forward to 2018, and the crop of new professions born of our digital economy meant that NAFTA was ripe for renegotiation.
Besides updating the list of professionals, I hoped to see C-level talent given their own category for immigration under NAFTA. If the Agreement allows for the movement of doctors, lawyers, and teachers, why not include CEOs, CFOs, and CTOs, who stand to benefit Canada by transferring knowledge and creating jobs? The immigration bar has laboured for years, albeit without results, to secure advertising exemptions for executives under the Temporary Foreign Worker Program. Moving these individuals into NAFTA and the International Mobility Program would resolve the issue.
Beyond the list of designated professions, a close look at NAFTA’s business visitor clauses reveals a glaring lack of reciprocity. A few years ago, I attended a meditation retreat in Ottawa led by a celebrated American meditation teacher. The cost was USD$500 for a two-day weekend retreat. I counted 27 people attending the retreat, a significant draw for two days of work. Canadians, on the other hand, have a much more difficult time crossing the border to deliver a seminar or workshop where tuition is paid. Although the American meditation teacher gave his workshop under the authority of section186(J) of the Immigration and Refugee Protection Regulations, SOR/2002-228, i.e.,, as a commercial speaker, which is outside of NAFTA altogether, the language of R186(J) could be added to the business visitor sections of the new Agreement, thus leveling the playing field. Over the years, I have fielded calls from yoga instructors and other self-employed individuals expressing their frustration at not being able to easily cross into the U.S. for two days to a conduct a paid workshop. Although it is possible to angle such people as management consultants under NAFTA, it presents a risky and indirect path from what should be a cut and dry authorization.
Although the prospect of a freshly expanded and updated NAFTA held great promise, especially since Minister Freeland signaled her desire to expand Chapter 16 as far back as August 14, 2017 in her speech at the University of Ottawa, excitement quickly faded when President Trump mentioned that he did not care for the entry of professionals under NAFTA. In fact, he indicated his intention to eliminate the list entirely as part of his Buy American, Hire American policy. As the negotiations grew increasingly dire, placing the future of the entire Agreement into question, it became clear that the Canadian government was in the midst of a salvage operation, focusing on fighting big-ticket items like supply management and sunset clauses, while relegating our less critical immigration corner to the backburner.
Ultimately, when the newly minted USMCA text was released it was not surprising to see more of the same (or less of the same, given the survival concessions Canada made). While the mobility sections had not been decimated, the list of designated professions remained unchanged, as did the business visitor requirements, intra-company, and trader and investor clauses. Some of the language and organization has changed, but NAFTA’s Temporary Entry for Business Persons chapter has essentially been ported over into the new Agreement. Still, as a practitioner, I could not help feeling a tinge of disappointment that not even a few changes were made, such as the inclusion of R186(J) style language. On the upside, at least the U.S. and Canada managed to reach a new Agreement without having to watch the Americans battle it out in Congress. For at least another 16 years, barring any surprises at the six-year joint review, Canadians, Americans and Mexicans can continue to invest, open new businesses, or accept employment in one of those anointed 63 professions. As skilled immigration counsel, we can take pride in helping turn those dreams into realities.
About the author
Andres Pelenur is a founding partner of Borders Law Firm, a certified immigration specialist from the Law Society of Ontario, and an attorney-at-law for the State of Massachusetts.
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