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October 2, 2018 – Canada and the United States signed a new trade agreement, paving the way for a comprehensive three-way agreement, with Mexico, while permitting continued labour mobility between the countries. Under the new U.S.-Mexico-Canada Agreement (USMCA), signed on September 30, 2018, labour mobility rules will effectively remain the same as they were under the North American Free Trade Agreement (NAFTA).
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.
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.
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 The current list is largely outdated.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.
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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.”
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.
The new USMCA means those fears have been allayed, for now. The details of the new agreement will add further context in the coming weeks.
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