Friday, May 25, 2018

It has been reported that the Trump administration is working toward limiting the number of TN visas. Based on the precepts of the Buy American, Hire American executive order, U.S. Trade Representative Robert Lighthizer has made reducing the TN program part of the renegotiation of NAFTA. The Administration reportedly wants to limit the number of professions eligible for the TN classification and possibly cap the number of visa renewals available. On the other hand, Canada and Mexico, whose citizens are eligible for TN visa status if they qualify under the NAFTA professions list, would like to expand the number of eligible professions to bring it more in line with current technology demands.

In 2016, Congress passed legislation that bars an administration from changing visa numbers during trade negotiations. It may be possible to avoid that bar, however, by simply modifying the operable treaty, rather than negotiating a new treaty. Of course, any new version of NAFTA would have to be ratified by Congress. There are those in Congress in favor of a reduction in NAFTA visas. Senator Charles Grassley (R-IA), in an October 2017 letter to Lighthizer , wrote “[t]his uncapped and under-recognized pool of high skill employees exacerbates the risk to American workers already present in certain industries that rely too heavily on foreign workers. It also constrains the U. S. Government’s total discretion over our immigration laws. . .” Although statistics regarding the number of Canadians in the U.S. in TN status are not readily available, Grassley believes that the overall number of TN visa status holders in the U.S. is approaching 100,000. Differing from Grassley’s view, legislators such as Representative Zoe Lofgren (D-CA), who represents Silicon Valley, emphasize the need for the “best and brightest,” and do not want to reduce the number of visas available.

Speaker Paul Ryan hoped to ratify a revised NAFTA during this legislative session but because negotiations are still in progress, it will likely have to wait until next year.

Even without treaty changes, we have already seen that TN applications are more highly scrutinized. Certain categories, such as economists, are subject to new guidelines, individuals’ credentials are being questioned, and even individuals who already hold approved TN visas and TN classification may be denied renewals.

Given the current uncertainty, employers may want to consider whether there are any alternative visa options for employees currently in TN status.