Articles

U.S.-Mexico-Canada Agreement: Minimal Changes Expected from an Immigration Perspective

The U.S.-Mexico-Canada Agreement (USMCA) was signed on November 30, 2018 and now must be ratified by Congress before the agreement can take effect. Until the USMCA is ratified, NAFTA will remain in effect unless the current U.S. administration decides to withdraw from NAFTA.

While the USMCA’s impact on trade among the member countries might be significant, the new agreement’s provisions regarding immigration remain essentially unchanged from its predecessor, NAFTA, which has been in effect since January 1, 1994. NAFTA provides several useful immigration benefits to Canadian citizens in particular (as well as U.S. companies seeking to employ Canadian workers or do business with Canadian enterprises). Under NAFTA, there are beneficial provisions for Canadian business visitors, professionals, intracompany transferees, and traders and investors seeking temporary entry to the U.S. Under the USMCA, these benefits should continue to be available. These benefits include the following:

Streamlined processing for L-1A and L-1B petitions. The L-1 visa allows a U.S. company with a foreign parent, subsidiary, or affiliate to transfer foreign workers employed abroad for at least one year to the U.S. company as “intracompany transferees.” The L-1 visa is broken down into two sub-categories: the L-1A visa for managerial employees, and the L-1B visa for so-called specialized knowledge employees. Typically, obtaining L-1 status for a foreign intracompany transferee involves submitting a petition and supporting documentation to U.S. Citizenship & Immigration Services (USCIS). It can take several months for USCIS to approve the petition, and while expedited “premium” processing can be requested, there is a substantial fee to request premium processing (currently $1,410), and it only guarantees a decision on the petition within 15 calendar days. Under NAFTA, however, Canadian citizens who are the beneficiaries of L-1 petitions can submit L-1 petitions to U.S. Customs and Border Protection at a U.S. port-of-entry or airport preclearance station in connection with a planned visit to the U.S. This effectively allows same-day processing of L-1 petitions for Canadian citizens at no extra fee.

TN Professionals. NAFTA also created the TN nonimmigrant classification, which enables Canadian nationals in certain professional occupations to accept employment in the U.S. Eligible professions include accountants, engineers, lawyers, teachers, and professionals in many scientific disciplines. The required supporting documentation is generally less extensive than an L-1 petition, and like the L-1, TN applicants can apply for admission at the border at a U.S. port-of-entry or airport preclearance station. Only certain professions qualify, and minimum educational requirements apply (in most cases, the applicant must have at least a bachelor’s degree in a discipline related to his or her proposed U.S. employment), but for eligible employees, the TN classification provides another way for Canadians to accept employment in the U.S.

Expanded options for business visitors. Certain business activities in the U.S. do not require formal U.S. work authorization. These activities include attending conferences and trade shows, negotiating contracts, settling an estate, participating in short-term training, and consulting with business associates, to name a few. NAFTA expands what business activities are permissible for Canadian citizens to engage in while in the U.S. These options include sales representatives and agents taking orders or negotiating contracts for goods or services for a Canadian business; buyers making purchases on behalf of a Canadian enterprise; certain installers, repair and maintenance personnel, and supervisors, performing after-sales service on commercial or industrial equipment purchased from a Canadian company; and management and supervisory personnel engaging in commercial transactions on behalf of their Canadian employer. NAFTA also allows certain TN professionals receiving no salary or other remuneration from a United States source to enter the U.S. as business visitors.

Treaty Traders and Investors. NAFTA also serves as the treaty that allows Canadian companies and citizens to apply for E-1 treaty trader visas (allowing entry to the U.S. to carry on substantial trade that is international in scope on behalf of a Canadian enterprise) and E-2 treaty investor visas (allowing Canadians who have invested or are actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States to stay in the U.S. for up to 3 years).

Perkins Thompson has extensive experience advising U.S. and Canadian companies on cross-border travel issues.  Send an email to Joe Siviski or call him at (207) 774-2635.