The visas which allow professionals in 63 occupations work permits with relatively little fuss could be a tough sell in Trump’s anti-immigration environment

Amanda Smith landed her dream job at a major women’s wear brand in New York City after finishing an associate degree at a prestigious U.S. university. To make the big career move, the Canadian planned to obtain a professional visa under the North American Free Trade Agreement.

But problems surrounding these visas, including dated job descriptions and political uncertainty — and perhaps a bit of bad luck — stopped Smith from crossing the border on her first day of work and, ultimately, forced her to abandon the offer.

Distroscale

Her nightmare could become reality for thousands more if the Donald Trump administration cracks down on labour mobility as the countries renegotiate NAFTA. Businesses and individuals worry the entire professional visa category might disappear, uprooting tens of thousands of people who use these temporary entry visas and making big problems for businesses looking to quickly hire qualified professionals.

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Freer movement of professionals was one of the key demands Canada listed before NAFTA negotiations launched in August. Foreign Affairs Minister Chrystia Freeland said free movement is “increasingly critical to companies’ ability to innovate across blended supply chains.”

She called for a review and expansion of the labour mobility rules enshrined in the 25-year-old agreement that grant educated Canadians, Americans and Mexicans in 63 occupations three-year work permits with relatively limited fuss and without a limit on the number of extensions.

The 63-job list, created just after the internet’s creation, is outdated in a digital era where technology-related jobs are in high demand, but that’s not the big issue. That’s because labour mobility in the U.S. is frequently tied to immigration, making it a tough sell given the anti-immigration political environment.

In 2016, Canada granted work permits to 17,602 Americans and 691 Mexicans under NAFTA professional provisions, according to Immigration, Refugees and Citizenship Canada.

The U.S. issued 14,768 NAFTA professional visas (TN visas) to Canadians and Mexicans in 2016. Over the past five years, the U.S. has issued 56,254 TN visas. It’s not clear how many Canadians live in the U.S. under TN visas, but estimates are in the tens of thousands.

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The U.S., which could kill NAFTA altogether, has not addressed labour mobility in the first rounds of talks and negotiators have not publicly divulged whether Canada has made any progress on its desire to expand the occupations list.

Freeland was not available for an interview, but foreign affairs press secretary Adam Austen said in a statement that updating labour mobility commitments is a key priority.

“Currently, some key sectors, like IT, are not covered whatsoever by commitments on temporary entry,” he said. “It is our hope that negotiations will further the ability of highly-skilled workers to capitalize on opportunities in the North American market.”

Businesses on both sides of the border love these visas because they make it easier and faster to hire workers, since they don’t require an assessment to prove the necessity of a foreign worker, said Stephen Cryne, chief executive of the Canadian Employee Relocation Council (CERC).

A lot of companies rely on this in order to move their people back and forth between the two countries

CERC represents businesses including the top five banks, major oil and gas companies and financial services firms.

“A lot of companies rely on this in order to move their people back and forth between the two countries,” Cryne said, adding this is particularly so in high-tech hot spots such as Toronto and Vancouver.

Businesses on both sides of the border want to update the list instead of trying to squeeze new professions such as data analysts or computer engineers into old categories. U.S. trade negotiators understand that need, but it’s difficult, if not impossible, to detach the visas from the immigration issue.

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“There are many politicians in the U.S. that see these kinds of agreements as circumventing the immigration programs, as foreigners coming in to take good U.S. jobs away from U.S. citizens,” Cryne said.

U.S. politicians also often tout a “Buy American, Hire American” policy.

Senator Charles Grassley in October wrote a letter asking senior trade representatives to reconsider the NAFTA visas and expressed concerns that the “uncapped and under-recognized pool of high skill employees exacerbates the risk to American workers.”

There’s no real legal clarity about what would happen to professionals if the U.S. withdraws from NAFTA, said CERC’s Cryne. If Canada and the U.S. fall back to their prior free trade agreement, about 20 occupations would be erased from the list.

“It would cause a significant amount of chaos and confusion and it would certainly disrupt business,” he said.

Disruptions

As an example of the looming disruptions, Cryne said nurses who live in Canada but work in the U.S. under NAFTA visas had problems crossing the border earlier this year.

Border agents appeared to suddenly change the way they interpreted the nursing job category, preventing about 30 nurses who were “over-qualified” from going to their jobs at a hospital in Detroit. It’s not clear what prompted the change, but lawyers blamed stricter rules around immigration.

“It’s important that our officials keep their shoulder to the wheel on this,” Cryne said, praising the government officials for trying in the first place.

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But Cryne said the status quo might be the best possible outcome. There is only so much political capital for the visas given that U.S. businesses are also lobbying for non-NAFTA visas, such as those for high skilled (H1B) and migrant workers.

“There is possibly a silver lining here… if (companies) can’t get people into the U.S., maybe we’ll set up the offices in Montreal, Ottawa, Toronto,” he said. “We’ll maybe create more jobs here.”

Parisa Mahboubi, a senior policy analyst at C.D. Howe, said if the professional visas are lost and highly skilled Canadian workers are forced to move back, it would make the labour market more competitive and reduce worries of “brain drain.”

But, in general, labour mobility improves efficiency, so Mahboubi said it’s important for employers to think about how to attract and keep science, tech, engineering and math talent in Canada.

“We need to be careful to smooth the way of attracting more Americans rather than smoothing the ways for Canadians to move south of the border,” she said. “We need individuals with those skills to remain competitive.”

If NAFTA professional visas disappear, some companies may do well to look to Europe to fill the void, said Bruce Harwood, a Vancouver- based lawyer at Boughton Law Corp.

EU option

Harwood, who has practised immigration law for more than a decade, noted the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) mimics NAFTA when it comes to labour mobility for professionals.

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CETA went into effect in September, and Harwood has already helped a British national use it to secure entry to Canada.

“I haven’t seen a rush on EU applications, but I expect to see more and more,” he said. “It’s fair to say if the NAFTA agreement does get sidelined, employers who are looking to circumvent the labour market impact assessment could look to Britain, France, Western Europe.”

Still, Harwood said losing NAFTA visas would hurt Canadian employers, particularly those on the West Coast that need to fill IT jobs quickly.

“That would be a real shame,” he said. “With a strong economy, there’s a compelling need for workers; we may not be able to generate them all internally.”

In the meantime, professionals such as Amanda Smith are in limbo. (The Financial Post changed her name given the tenuous nature of her employment.)

Her case illustrates both the Canadian desire to update the occupation list and the turmoil caused as the Trump administration zeroes in on immigration.

Like many millennials who work in fields that didn’t exist when NAFTA was inked, Smith’s job offer in public relations wasn’t an exact match for one of the 63 occupations. She applied as a technical publications writer, the definition of which includes disseminating information through communications channels.

Her role required social media so it was expected to fit the bill, Smith said, especially since two of her friends with the same job descriptions obtained such visas under the Barack Obama administration. Plus, she hired a highly recommended lawyer that helped prepare her application.

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Yet when Smith went through customs at one of Canada’s largest airports on an early fall morning — she was supposed to start work that day — the border guard denied her the visa for vague reasons.

She said the guard acknowledged she had the proper education and that her application was complete, but told her she just wasn’t the right fit.

Her employer extended the job offer for two weeks, but she was denied again. This time, she said the guard narrowly interpreted the occupation description.

Smith is frustrated, both with the old job list and with the uncertainty NAFTA renegotiations appear to be causing among border guards.

“You can say I was playing Russian roulette with the border agents and I got the wrong day, the wrong girl, the wrong situation,” Smith said. “You could also say they’re being more strict with what the rules are… or you can blame Trump and say they’re cracking down.”