Labor Mobility Under New US-Mexico-Canada Agreement Mostly Unchanged

Canadian Prime Minister Justin Trudeau signed the new trade agreement with the U.S. and Mexico on the sidelines of the recent G20 summit in Buenos Aires, Argentina.

The signing comes after two years of fears over what the renegotiated deal might mean for the status of U.S. and Mexican skilled workers in Canada, as well as Canadian skilled workers in the U.S. and Mexico.

But, at least in terms of skilled labour work permit provisions, the new deal changes very little from the previous North American Free Trade Agreement (NAFTA).

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Despite Trudeau and his counterparts – Donald Trump and Enrique Peña – signing the deal, it still needs to be ratified by all three parliaments, meaning it is a long way off actually taking effect.

While the signing is no-doubt an important milestone, there are still many hurdles to overcome before the United States-Mexico-Canada Agreement is in place.

Trump’s public attitude towards his neighbours is going to make it difficult for lawmakers in both Canada and Mexico to sign a deal the U.S. president has been pushing for since coming to power.

Even at the signing with the three leaders together, Trudeau said Canada needed to see steel and aluminium tariffs between the two countries removed.

This is significant given such media set-piece signings are normally always met with nothing but positive soundbites from the participating parties.

Trudeau was signing a trade deal, while at the same time highlighting his dissatisfaction with U.S.-Canada trade. This shows there remains a big gap between finding common ground on trade between the two countries.

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Labour Market Impact Assessment Exemptions

Labour mobility provisions under USMCA will continue to exempt Canadian employers from otherwise stringent immigration formalities for skilled professionals entering Canada who would normally require a positive Labour Market Impact Assessment (LMIA).  This process confirms that no Canadians are available to fill a position in the labour market.

In Canada, the visas under the previous NAFTA deal and the new USMCA are administered through the International Mobility Program.

The USMCA applies to citizens of the United States and Mexico who seek entry to Canada under the following categories: business visitors, professionals, intra-company transferees, and traders and investors.

American and Mexican citizens seeking entry to Canada under USMCA categories may apply for admission at Canadian ports of entry.

Agreement Largely Unchanged

Despite fears U.S. negotiators were demanding restrictions on Treaty NAFTA Visas (TN Visas), Chapter 16 of the new agreement leaves the area largely unchanged.

During negotiations, there were indications of possible numerical quotas on the annual numbers of professionals working in member countries, on TN Visas.

It was also expected that the list of professions covered by the agreement would be updated.  The current list is largely outdated. NAFTA was signed in an era before the technology industry boom and therefore does not include some important technology positions such as software engineers and web developers.

The new agreement keeps the same list, which includes around 60 occupations in general, medical, scientific and teaching professions.

However, one important paragraph was added to Chapter 16 of the USMCA which does not appear in Chapter 16 of NAFTA.

It appears to leave the opportunity for restrictions in the future:

Article 1602, Paragraph 3 reads: “Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.”

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What Did NAFTA Say on Labour Mobility?

The original NAFTA, which came into force January 1, 1994, allowed certain skilled workers from Canada, the U.S. and Mexico expedited processing for visas in either of the other two participating countries.

It covered four main categories, namely professionals, intra-company transferees, traders and investors.

In a Canadian context, Work Permits issued through NAFTA fall under the International Mobility Program, meaning they are exempt from the Labour Market Impact Assessment (LMIA).

The LMIA is the tool used to ensure foreign workers are not coming to Canada and fill jobs for which Canadians are available.

How Many TN Visas Have Been Issued?

Canada issued 17,602 visas to Americans and 691 to Mexicans under NAFTA in 2016, while the U.S. awarded 14,768 TN visas to Canadians and Mexicans combined.

This suggests ten of thousands of workers from the three countries would have been watching the negotiations with their status under threat.

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