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The immigration impact of NAFTA withdrawal on mobility between Canada, the US and Mexico

31 Mar

By Robert Loughran

The US President Donald Trump appears to be making good, to one degree or another, on his list of campaign promises. It is likely that he will turn again to reviewing the North American Free Trade Agree ment (NAFTA) sooner rather than later. President Trump has promised to renegotiate or completely withdraw from NAFTA within the first 100 days of his administration and based on the terms of the agreement, he may do so with six months’ notice to Canada and Mexico.

The Canadian Prime Minister Justin Trudeau has consistently indicated a willingness to renegotiate NAFTA and the Mexican Secretary of Foreign Relations, Luis Videgaray, stated that Mexico would like to renegotiate “as soon as possible” to “dispel this uncertainty” which is adversely impacting their economy at this time. There has been an increase in nationalist rhetoric and growing tension publically between the presidents of Mexico and the US, which is adding a degree of difficulty to what originally appeared could be an amicable revision and update to an agreement that is now more than twenty years old.

NAFTA Professionals, treaty traders and treaty investors under Canadian and US immigration laws

NAFTA created specific immigration options under Canadian and US laws for nationals of member countries. Canadian and US immigration laws each provide for a NAFTA Professionals category for a set list of over 60 occupations, including accountants, lawyers, engineers, management consultants, etc.

The loss of the NAFTA Professionals category would substantially and adversely impact mobility to the US and Canada. Canadian law permits NAFTA professionals to apply at the port of entry without advanced filing with Immigration Canada and the US has a reciprocal agreement with Canada, but not Mexico, for similar application at the port of entry. Without the NAFTA Professionals category, Canadian, Mexican and US professionals and companies seeking to send such employees on assignment would in the majority of cases be limited to intracompany transferee options or options that require a test of the labour market, advertising and evidence that there are no available, qualified local workers. Intracompany transferee options in the US and Canada are often not practical for companies that do not have a foreign affiliate and who wish to send employees with less than a year’s experience who are not in a position that is either managerial, executive, or involves specialised (propriety) knowledge to a similar position abroad, as required for eligibility purposes.

NAFTA is also the enabling legislation for US and Mexican traders and investors in Canada, and Mexican traders and investors in the US, to request authorisation to engage in such activities in these countries. Withdrawal or renegotiation may impact the ability of Mexican or US nationals to trade or invest in Canada and the ability of Mexican nationals to trade and invest in the US.

No anticipated impact on immigration options to Mexico

As a result of a recent overhaul in 2011 of Mexican immigration laws to simplify and decrease requirements in order to encourage international investment and work, the options available to Canadian and US nationals may actually remain unchanged without some sort of specific retaliation by Mexico. In contrast to the criticisms of Mexico by the Trump ad ministration, the Canadian government has actually opened up their visa-waiver programme to include Mexican nationals at this time, so it is likely that such retaliation, if any, may be directed towards US nationals should NAFTA withdrawal occur.

Depending on developments in NAFTA withdrawal or renegotiation, professionals, traders and investors of the member countries may lose significant mobility to Canada and the US, but based on the 2011 overhaul, the Mexican immigration system will likely remain as it currently exists.