USMCA Implemented: What North American Companies Need to Know on Immigration

On July 1, 2020, the United States-Mexico-Canada Agreement (USMCA) entered into force and replaced the North American Free Trade Agreement (NAFTA) that governed continental trade for more than two and a half decades.  While the new agreement includes key upgrades in areas such as digital trade and intellectual property to reflect the 21st Century economy, as noted in our January 2020 blog post, the USMCA fails to address the most pressing issue facing cross-border companies—namely, moving their talent – between cross-border operations.  See, USMCA: Immigration Chapter and TN Visas Unaffected by New Law. Adding to the challenges for North American human resource and talent managers is the interconnected, but frequently conflicting, network of immigration policies and politics issued during COVID-19 and in the lead up to the 2020 political campaign. This made-for-TV obstacle course requires foreign nationals  to leap over the USMCA’s high hurdles, stutter-step through travel restrictions and quarantine requirements, dribble past the recent proclamation banning immigrant visas and nonimmigrant visas (H-1B, L-1, J-1 and H-2B), and catch a Hail Mary pass in the end zone by securing a visa appointment despite the temporary, worldwide closure of the U.S. Embassies and Consulates worldwide, all to receive the gold medal of admission into the United States.

Visa Ban: First, the U.S. Presidential Proclamation 10014 banning nonimmigrant visas does not de facto apply to Canadians as they are visa exempt. With limited exception, Canadian citizens do not apply for most nonimmigrant visas at a U.S. Embassy or Consulate abroad. Rather, a work sponsorship petition is filed directly with the U.S. Citizenship and Immigration Services (USCIS) or the U.S. Customs and Border Protection (CBP) at the U.S. Port-of-Entry (POE), as applicable. This process includes H-1B professional workers, O-1 extraordinary workers, H-2A agricultural workers, H-2B non-agricultural workers, J-1 cultural exchange visitors, L-1 intracompany transferees, F-1 students, and other petition-based nonimmigrant categories. With petition or application based approval from USCIS, a Canadian citizen is admitted into the U.S. for work purposes consistent with the terms of the petition or application. For example, Canadians with L-1 and H-1B approvals issued by the USCIS may continue to enter the U.S. by presenting a valid I-797 approval notice for admission.

Cross-border workers and land border closure: Canadian and Mexican citizens with valid U.S. work authorization are exempt from the land border closure restrictions. They may continue to cross the border for work in the U.S. These admissions for visa holders authorized to work in the U.S., is not limited only to essential workers in the healthcare or agricultural/food industries. In addition, it appears that cross-border workers are exempt from the mandatory 14 day self-quarantine in Canada, facilitating cross-border travel for such workers. As a reminder, air travel into the U.S. is still allowed although travel to Canada is limited only for nondiscretionary travel as posted by the Government of Canada Coronavirus disease (COVID-19): Travel restrictions, exemptions and advice. Some examples of non-discretionary travel purposes are: work and study; critical infrastructure support; economic services and supply chains; and, health, immediate medical care, safety and security.

TN NAFTA/USMCA Applications: CBP continues to process TN applications at the POEs. Applicants should keep in mind that they must have work scheduled in the U.S. before submitting their application. No flag polling is allowed. In other words, an applicant cannot simply show up at a POE to process their TN application and then turn back home to Canada.  The TN applicant must be entering the U.S. to work.

L-1 Intracompany Transfers: Canadian citizens have an advantage under NAFTA (now the USMCA) in that CBP will process L-1 petitions at the POE rather than requiring an employer to file a petition with the USCIS first (which takes longer and costs more money for the process). More recently, there have been additional restrictions imposed where the POEs will only process new, initial L-1 petitions and intermittent L-1 worker extensions. Canadians who are inside the U.S. or have an upcoming L expiration and seek an L-1 extension, must file petitions with the USCIS to obtain an extension approval.  Canadians who are outside of the U.S. when their L-1 visas expire are able to apply for a new L-1 as a new petition at a POE. Again, the travel restrictions and L-1 visa ban do not apply to Canadian citizens as they are de facto exempt from the visa requirement.

E-1/2 Treaty Trader and Investors: The only nonimmigrant work visa classification that requires a formal visa application to the U.S. Embassy or Consulate for Canadian citizens is the E-1/E-2 Treaty Trader and Investor category. As such, E-1/E-2 visa applications will continue to be on hold until the U.S. Embassies and Consulates fully reopen. On a positive note, on July 14, 2020, the U.S. Department of State announced that the U.S. Embassies and Consulates are beginning a phased resumption of routine visa services which will occur on a post-by-post basis. Meanwhile, if an applicant can prove that their services will be in the national interest of the U.S. (services that provides a substantial economic benefit to the U.S. economy), the applicant could request an expedited appointment on the basis of national interest exception. However, the consular officer has full discretion to make such an exception.

Visa Revalidation: Per the Automatic Visa Revalidation (AVR) regulation, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be readmitted into the U.S., if they meet certain requirements, including travel to Canada, Mexico or a certain adjacent islands (F and J nonimmigrants only) for 30 days or less and they possess a valid unexpired admission stamp from CBP or an I-94 admission record. A nonimmigrant should consult with an immigration attorney before travel, but this provision primarily facilitates travel for Mexican citizens who have to travel to their home in Mexico. AVR may not be particularly helpful at the moment for travel to Canada since foreign nationals, including U.S. citizens, can travel to Canada only if they’re eligible and for non-discretionary/essential travel purposes. In addition, Canada has a quarantine order (self-isolate for 14 days), however, essential and cross-border workers are exempt from this requirement if they have no COVID-19 symptoms.

Despite the myriad of executive orders and proclamations slowing down immigration, it remains manageable, if well prepared to navigate, for cross-border workers in North America.

About the Author:

Suzanne Sukkar is a U.S. Business Immigration Attorney at the law firm of Dickinson Wright PLLC. Her practice focuses on global workforce mobility, employment-based sponsorship and visa matters, immigration audit and compliance for corporate and individual clients across a vast array of industries. Suzanne renders expert strategic and tactical counsel to a broad clientele base including visa matters for client’s employees at all levels of the corporate organizational structure, from the highest level executives, to the entry-level business professional, investors, extraordinary ability workers, outstanding researchers and professors, musicians, artists and athletes, and more. She has developed a niche expertise in the area of E treaty trade and investor visas, consular processing, and start-up ventures. Through strategic planning and by offering creative solutions, she has assisted with the seamless transfer of numerous workers world-wide. She may be reached in our Ann Arbor office at 734.623.1694. Visit Suzanne’s bio here.