It has been reported that the Trump administration is working toward limiting the number of TN visas. Based on the precepts of the Buy American, Hire American executive order, U.S. Trade Representative Robert Lighthizer has made reducing the TN program part of the renegotiation of NAFTA. The Administration reportedly wants to limit the number of professions eligible for the TN classification and possibly cap the number of visa renewals available. On the other hand, Canada and Mexico, whose citizens are eligible for TN visa status if they qualify under the NAFTA professions list, would like to expand the number of eligible professions to bring it more in line with current technology demands.

In 2016, Congress passed legislation that bars an administration from changing visa numbers during trade negotiations. It may be possible to avoid that bar, however, by simply modifying the operable treaty, rather than negotiating a new treaty. Of course, any new version of NAFTA would have to be ratified by Congress. There are those in Congress in favor of a reduction in NAFTA visas. Senator Charles Grassley (R-IA), in an October 2017 letter to Lighthizer , wrote “[t]his uncapped and under-recognized pool of high skill employees exacerbates the risk to American workers already present in certain industries that rely too heavily on foreign workers. It also constrains the U. S. Government’s total discretion over our immigration laws. . .” Although statistics regarding the number of Canadians in the U.S. in TN status are not readily available, Grassley believes that the overall number of TN visa status holders in the U.S. is approaching 100,000. Differing from Grassley’s view, legislators such as Representative Zoe Lofgren (D-CA), who represents Silicon Valley, emphasize the need for the “best and brightest,” and do not want to reduce the number of visas available.

Speaker Paul Ryan hoped to ratify a revised NAFTA during this legislative session but because negotiations are still in progress, it will likely have to wait until next year.

Even without treaty changes, we have already seen that TN applications are more highly scrutinized. Certain categories, such as economists, are subject to new guidelines, individuals’ credentials are being questioned, and even individuals who already hold approved TN visas and TN classification may be denied renewals.

Given the current uncertainty, employers may want to consider whether there are any alternative visa options for employees currently in TN status. If you have any questions about possible options, please reach out to your Jackson Lewis attorney. We will continue to follow the NAFTA negotiations and provide updates as they become available.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.