JOB SECURITY IN LIMBO
Windsor immigration lawyer Maria Fernandes says there is widespread uncertainty over the impact the ongoing NAFTA negotiations might have on current provisions that allow many Canadians to work in the United States on temporary visas.
When nurse practitioners from Windsor were stopped at the border and not allowed to go to work at Detroit hospitals this past summer, the panic and problems of renegotiating the North American Free Trade Agreement suddenly became clear.
Nurse practitioners ran into trouble over an interpretation of the 25-year-old agreement that allows professionals in 63 jobs — including registered nurses — to obtain temporary work permits to be employed in the United States. The nurses were deemed overqualified and were turned back.
The stressful summer issue for about 30 Canadian nurses 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 category might disappear, uprooting tens of thousands of people who use these temporary entry work permits and creating problems for businesses looking to quickly hire qualified professionals.
“Everbody’s just kind of sitting on the edge right now and waiting to see what’s going to happen,” Windsor immigration lawyer Maria Fernandes said this week.
Fernandes likened any sudden change in the agreement to a power outage. “The lights are going to go off unless there’s a smooth transition, unless there’s a transition that’s contemplated.”
Fernandes said the U.S. has taken a protectionist stance but she’s hoping the administration carefully considers the ramifications of suddenly changing the rules since it would affect the economies in both countries. She said if it isn’t broken, don’t fix it and if there are changes, allow professionals a transition so businesses and hospitals are not suddenly without experienced workers.
Drew Porter, a Windsor immigration lawyer who is licensed in Ontario and Michigan, sees the renegotiations as positive for Windsor-Detroit, which is North America’s busiest border crossing. NAFTA’s 63-job list was created just after the internet and is extremely outdated, he said.
“Changes are overdue and I think ultimately this will be a good thing,” Porter said.
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.”
Freeland 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 without a limit on the number of extensions.
The 63-job list is outdated in a digital era where technology-related jobs are in high demand, but that’s not the big issue. 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 these visas, but estimates are in the tens of thousands.
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 bid 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).
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.
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.
“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.
U.S. 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.”
Porter said last April’s Buy American, Hire American executive order may have prompted Detroit border officials to interpret the work permits under NAFTA in a more restrictive fashion. Some nurse practitioners were denied for being overqualified. The Detroit hospitals that were caught short of nurses exerted some pressure and the issue was resolved within a week.
“In my 28 years of practice, I think we’re at the height of restriction and limitation and protectionism,” Porter said.
The U.S. is posturing, is more concerned about Mexico and won’t pull out of NAFTA, Porter said. He’s hoping the renegotiations clear up the grey areas.
Meanwhile he’s getting a lot of calls from workers and employers who are looking into other permits in case the U.S. changes its stance or there is a change in the interpretation or list of jobs. Fernandes said Windsor workers shouldn’t wait until the last minute to consider their options.
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. “It’s important that our officials keep their shoulder to the wheel on this.”
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.”