President Trump announced that he is “terminating” NAFTA. The U.S. and Mexico have apparently agreed to a new bi-lateral trade deal but we don’t yet know if this will include some equivalent to the TN and E-1/E-2 for Mexicans, especially in light of President Trump’s determination to reduce legal immigration and cut the number of work visas issued annually to non-U.S. workers. There does not appear to be an imminent trade deal between the U.S. and Canada, but President Trump’s announcement may spur negotiations.
What does this mean for Mexicans and Canadians currently working in the U.S. on TN or E-1/E-2 status? Will their status be cancelled, and if so, when? Will they be permitted to work until the expiration dates of their visas, or will they be cancelled sooner? Are there alternative U.S. visas Mexicans and Canadians can transition to so they don’t lose employment authorization in the U.S.?
There are still a lot of unknowns about what will happen to NAFTA TN professionals and E-1/E-2 workers when the U.S. effectively withdraws from NAFTA. We don’t have all the answers to the above questions but we do have some.
This is what we do know:
- Once President Trump gives written notice that the U.S. intends to withdraw from NAFTA, it will take 6 months for the withdrawal to become effective (NAFTA – Article 2205). Thus, individuals working pursuant to NAFTA will have at least six months from the date of the announcement, if written notice has already been given, to continue working under otherwise valid TN status or an E-1/E-2 visa.
- Once the 6 months has passed and the U.S. is no longer a signatory to NAFTA, unless new trade treaties containing employment provisions for citizens of Mexico and Canada have been negotiated by the president and ratified by the senate, nationals of these countries will find themselves with no employment authorization in the United States. In other words, without an underlying treaty or agreement, TN’s and E-1/E-2 visas will lose their foundation and disappear.
- Alternative Visas: There may be alternative visa categories that Canadians and Mexicans can utilize to avoid disruption in their U.S. employment authorization which include:
- H-1B– This visa is available for professional workers of all nationalities but for most employer sponsors other than universities or non-profits affiliated with universities, there is a quota of 65,000 H-1B’s issued each year under the regular cap and an additional 20,000 issued under the advanced degree exemption, far below the number of H-1B petitions filed each year.For the 2019 fiscal year, 190,098 petitions were received by the Department of Homeland Security, fewer than the number received in the previous season (199,000). Thus, for individuals with a bachelor’s degree or the equivalent, there is slightly less than a 1 in 3 chance of having an H-1B petition selected in the annual lottery. The next time employers may file new H-1B petitions for prospective or current employees is April 2019, and individuals whose petitions are selected in the lottery could not legally begin working under H-1B status until October 1, 2019.
- L-1– This nonimmigrant visa is a great choice for Mexican or Canadian executives, managers (L-1A), or specialized knowledge personnel (L-1B) who, within the three-year period before they began working in the U.S., were employed by a related (commonly controlled) Mexican or Canadian company. NAFTA currently permits Canadians applying for an L-1 visa to apply directly at a port of entry, rather than applying through a U.S. service center, as all other nationalities are required to do. No cap on the number of L-1’s issued annually.
- B-1 in lieu of H-1B– This status is appropriate for individuals of any country who are full-time professional-level employees of a foreign company coming to the U.S. to work for a client of the foreign company on a temporary basis.
- J-1– An exchange visitor visa appropriate for nationals of any country going to the U.S. to gain experience working in the United States. This program allows foreign nationals to come to the U.S. teach, study, conduct research, demonstrate special skills or receive on the job training for periods ranging from a few weeks to several years. The J-1 is limited in purview, but effective in the right type of case. No cap on the number of J-1’s issued annually.
- O-1 – This visa type is appropriate for individuals with extraordinary ability in his/her field. The O-1 applies to people in the arts, television and film, science, education, business, and athletics. No cap on the number of O-1’s issued annually.
- Immigrant Petition– If no non-immigrant visa category applies, a prospective employer may sponsor a foreign national for an immigrant visa. Timing and availability of an immigrant visa vary depending on the specific classification sought.
If you are currently on TN status or an E-1/E-2 visa, be proactive and have an experienced immigration lawyer evaluate your eligibility for another type of work visa before you are required to return to your home country. Good luck!