During the 2016 Presidential campaign, Candidate Trump regularly voiced his plan to cancel the North American Free Trade Agreement (NAFTA). (See the TN Visa Requirements by Clicking Here) While he did not focus on the immigration aspects of the Trade deal, he made it clear that he did not like the trade agreement and that it would at the very least be renegotiated. Negotiations are underway and as recently as this month, President Trump has indicated that he felt the deal will likely be cancelled.
Many of our clients have reached out and asked the question: How will the cancellation of NAFTA impact my TN Visa? While the fear is certainly understandable, it is unlikely that much will change for TN visa holders and this is especially the case for Canadians. Here is why.
First, in order to cancel or change NAFTA, the process is a complicated and the President has to go through a process that will take time and effort. The process requires very specific notification and withdrawal protocols and the Treaty cannot be torn up overnight.
Second, from a legal standpoint, TN status was established by NAFTA but then subsequently was separately established as legislation by Congress. As such, TN classification is self-standing in U.S. law even without NAFTA. If NAFTA was cancelled, the TN laws would still exist unless Congress decided to change them and there is little appetite for that. Unlike more recent trade deals, there is no separate provision under NAFTA that a withdrawal of treaty would invalidate legislation. To be clear, to eliminate the TN visa and TN status, two things would have to happen. 1. A withdrawal from NAFTA and 2. Congress would have to enact law to remove TN from the books. While 1 may occur, it is unlikely that Congress has any appetite for 2. Finally, if there was any change, it would likely be phased in over time.
While TN status is likely here for some time, nothing is guaranteed and the current administration can certainly make getting a TN Visa harder though tougher adjudication and changing the procedure of how TN visas are obtained. For example, Mexican nationals must go to the Consulate to get a TN visa and the State Department has significant latitude regarding the issuance of visas. While Canadians are visa exempt, the procedures could be changed so that additional processing is required. Moreover, any subjective aspect of the TN requirements could take on a strict or rigid adjudication standard.
What Should I do?
First, do not panic. Any change to TN law and your status will likely take time.
That being said, it is always a good idea though to “upgrade” your status if you can. For example, if you are eligible for a green card you should apply for one. (If you are eligible for citizenship you could consider applying for that too) Also, given the H-1B is subject to the lottery, you could try applying for that as it may take a few years to be selected. The visa lotter is also always an option.
You could also consider renewing your TN. For example, if you currently have 6 months remaining on your TN, you could consider renewing for another 3 years now rather than waiting.
You should also make sure that your TN application is perfect and you should seek out legal advice to develop a strategy (eg. Where to apply and how to best put forward your application). IT is not the time for errors and a proper strategy can make all the difference.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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