Goodbye, NAFTA. Hello, USMCA.

Nilan Johnson Lewis PA
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On July 1, 2020, the United States-Mexico-Canada Agreement (“USMCA”) will enter into full force, when it will replace the North American Free Trade Agreement (“NAFTA”) as the primary agreement governing trade relations between the United States, Mexico, and Canada.

President Trump’s April 2017 Buy American, Hire, American executive order threatened to end or severely limit the free trade agreement between the three countries, so its preservation is a victory for businesses and for professionals who qualify for entry under the agreement.

During the negotiations of the USMCA, experts raised questions about whether the immigration provisions of NAFTA would carry over into the new agreement and whether the scope of the provisions would change. Despite these questions, the language in Chapter 16 of the USMCA – the main chapter addressing the temporary entry of professional and other workers – is nearly identical to the parallel immigration provisions of NAFTA. Thus, the implementation of the USCMA is expected to have no material effect for Canadian and Mexican professionals seeking to enter the United States based on previous NAFTA factors. It is further anticipated that the analysis for determining qualifications for entry in this category will remain the same. As noted below, however, there is still room for clarity.

Under Chapter 16 the USMCA, the United States will continue to allow temporary entry to Canadian and Mexican nationals seeking to engage in a limited set of business activities. As defined in the agreement, such activities must be related to a defined group of business goals, and business professionals seeking entry into the United States under the agreement are limited to a pre-determined set of professions. As with NAFTA, individuals admitted under the USMCA will be allowed to enter the United States for a period of up to three years.

Because there are no changes to the immigration provisions in the USMCA, certain advantages to entering the United States for Canadian and Mexican citizens under the agreement will remain the same as they did under NAFTA. Below are just a few examples.

  • Entry under USMCA will not require the foreign national or sponsoring company to first file a petition with the United States Citizenship and Immigration Services (“USCIS”), which makes the process faster, less expensive, and efficient.
  • Unlike those entering the United States in the L-1 and H-1B categories, individuals working in the United States under the USMCA will not be subject to durational or numerical limits and can extend their status under this category indefinitely as long as they maintain a nonimmigrant (temporary) intent.
  • The compromise means that American businesses can continue to hire skilled Canadian and Mexican workers without having to first go through the arduous labor certification process, which requires employers to show they cannot fill the position with a qualified, willing, able, and available U.S. worker.

It is also worth noting that the recent Presidential Proclamation that bars entry into the United States to those in L-1 and H-1B categories does not apply to those entering under the USMCA.

The biggest disadvantage to admission under the USMCA is that the categories which serve as the basis for entry are more limited than those that qualify for status within other, broader nonimmigrant categories. Given the heightened scrutiny of anyone applying for entry into the United States, it is possible that the processing of visas under the USMCA could be made difficult. For this reason, those seeking to use this category for admission should consult with an immigration attorney prior to making such application. The immigration team at Nilan Johnson Lewis will continue to monitor admission of nonimmigrants under the USMCA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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