NAFTA’s Labor Agreement

Last November President Obama was heckled by pro-migrant activists demanding that his administration take action to halt deportations. The President responded that he was unable to take further steps and that this was an issue Congress had to tackle.

One wonders if the President has considered using administrative changes to ease use of the North American Free Trade Agreement’s (NAFTA) labor agreement.

NAFTA dealt primarily with reducing barriers in goods and services, but it also provided for a minor reduction in barriers to labor as well. Canadian and Mexican professionals may acquire the non-immigrant TN status to work and live in the United States in renewable increments of three years. The relevant text can be found in Chapter 16 of the NAFTA treaty. Only a handful of professions are covered by the status and most of them require bachelor degrees, which means that expanding the TN status would not provide much aid to lower skilled migrant-hopefuls but it would nonetheless be a move towards more open borders.

At minimum the President’s administration could seek to ease the application process for the TN status. Currently most TN status holders leave the United States in order to renew their TN status in an US consulate or embassy in their home countries. This is costly to do and many would benefit from being able to apply from within the United States. A process to apply does exist within the United States, but it is rarely exercised due to the difficulty of doing so.

The President’s administration could also seek to allow those eligible for TN status to self-apply to renew the status without the need for cooperation from their employer. The TN status is quasi-portable; when first applying a TN holder must prove that they have a job offer in the United States but can change employers in the interluding time provided they file out some paperwork. Unfortunately the need to have their employers  help them renew their status limits the portability of the status. Allowing self-petition would remove this and make the status fully portable.

TN status is currently valid for increments of three years. The President’s administration could expand this to five or ten years. During the Bush administration the status was changed from one to three years, so Obama would merely be following in his predecessors’ action.

If the President was especially ambitious he could seek to expand the list of professions covered by the TN status. Unlike other proposals here the President would have to negotiate the terms of expansion with Mexico, Canada, and Congress. President Obama is down in Mexico discuss the future of NAFTA, could it be he is already toying with the idea of using NAFTA for a broader labor agreement?

Expansion of the TN status should be an attractive route and it is surprising that both successive Presidents and open border advocates have ignored it. The TN status  is already part of the US code (Title 8 Section 214.6) and no further enabling legislation from Congress would be necessary. The President’s administration would not be creating a new status using executive order, it would merely be easing the administration process of a well established aspect of US immigration law.

Regular opponents of increased immigration would be hard pressed to argue against expanding NAFTA’s labor provisions. The President could potentially increase the list of eligible professions, but the TN status would ultimately only benefit skilled workers. There is plenty of rhetoric against unskilled migrants, but it is rare to find the same passion against skilled migrants. The TN status does not provide a pathway to citizenship to its holder and therefore denies its holder the possibility of benefiting from most US welfare programs or voting. The types of migrants that come under the TN status are the most favorable ones; well educated middle income professionals who are here to do business.

Easing use of the NAFTA’s labor agreement could not easily be portrayed as misuse either. NAFTA was meant to reduce trade barriers between the US, Canada and Mexico. Both the letter and spirit of NAFTA would be carried out by easing the application process for the TN status. Is it fateful that the trade treaty celebrates its 20th anniversary this year.

The TN status has no numerical caps. Mexican applicants were numerically capped at its inception, but said cap was removed in 2004. Increasing the number of TN status holders would not reduce the number of visas available elsewhere and should not cause any significant backlogging of other visa applications.

In 2012 733,692 individuals were admitted into the US under TN status, mostly for short periods. Only a relative few reside in the United States for significant portions of time.

Source: DHS Yearbook of Immigration Statistics 2012

No labor certification process is required for those applying for the TN status.  The low number of TN status holders relative to the supply of potential applicants suggests that the administration is being stringent in who it grants the TN status to. It also implies that many more individuals could TN status if the President’s administration eased its application procedures.

If done properly an extension of NAFTA’s labor provisions could lead to the the three member nations agreeing to reform the treaty to include lower skilled labor as well or possibly extending NAFTA membership to the Caribbean and Central America countries. These would all be marginal moves, but they may wet  things enough for a slippery slope towards open borders in the long run.

Michelangelo Landgrave

Michelangelo Landgrave is an economics graduate student at California State University, Long Beach.