TN Visas in Jeopardy with an Obama / Clinton Win?

Question: Do you think working visas under NAFTA are in jeopardy after the election this year?

Answer: If McCain wins the election, I do not think there will be any tinkering with NAFTA. Clinton and Obama have both said they may opt-out of NAFTA if Canada and Mexico refuse to strengthen labor and environmental provisions and modify an investment chapter. I haven’t heard anything about their specific intentions with respect to NAFTA’s immigration provisions. Obviously, the biggest risk to the TN visa category is if the U.S. completely opts out of NAFTA. I don’t see that as a likely scenario. It's feasible that they'll look at revising the labor, environmental and investment provisions.

The only labor protection provision in the NAFTA TN regulation deals with protecting U.S. workers during a strike. 8 CFR § 214.6 (k). This provision limits the issuance of a TN where the applicant’s employment may adversely affect the settlement of any labor dispute. I have never seen a TN denied on account of this provision and think it offers minimal protection to U.S. workers. It’s possible that this provision could be expanded. Another avenue they could consider is the implementation of a Labor Condition Application (LCA) requirement similar to the H-1B visa category. The primary purpose of the LCA requires that an employer pay the foreign employee at least the ''actual'' wage or salary for the particular job, or the ''prevailing'' wage in the geographical area of employment, whichever is higher. At least with respect to Mexican citizens, this would actually be a reinstitution of the LCA requirement. When NAFTA was originally implemented, Mexican citizens were required to file an LCA. This requirement was eliminated in 2004. The Chile and Singapore Free Trade Agreement, which provides for the H-1B1 visa category, also has an LCA requirement.

If the candidates are serious about strengthening the labor protection provisions of the TN regulations, an LCA requirement is a possibility, but I don’t think it’s going to happen. More likely, Daniel Gross at Newsweek is right: “Democratic candidates for national office will 1) make negative comments about free-trade deals while campaigning in a state where hundreds of thousands of blue-collar manufacturing jobs have been lost, and yet 2) be committed to free trade should they happen to win.”