Despite Mexico and Canada’s persistence, Chapter 16 of the USMCA contains very few changes to NAFTA Chapter 16. This is notable since technology has substantially changed the way companies and individuals do business since NAFTA was first negotiated and implemented, and there was an expectation that the new text of the USMCA would modernize treaty immigration rules for new and emerging professional occupations.
II. EXECUTIVE SUMMARY
Chapter 16 of the USMCA, which addresses the temporary entry for business persons, provides for the TN (Trade NAFTA) visa category, which has been kept intact with only a few minor changes. Under the USMCA, temporary entry means entry into the territory of a Party by a business individual from another Party without the intent to establish a permanent residence. The minor changes to Chapter 16 are mostly rewordings, updates to previously negotiated revisions and a rearrangement of sections, which should not affect the process for applying for and obtaining a TN visa. For reference, such changes consist of: i) probable changes to the visa requirements for Traders and Investors (USMCA Annex 16-A §B(3)); ii) a technology mandate for Working Groups (USMCA Art. 16.6 2(e)); iii) numerical limits on Professionals (USMCA Annex 16-A §D); iv) new categories for Business Visitors (USMCA App. 1); and v) an updated scope.
Chapter 16 covers four categories of business individuals: i) traders and investors; ii) business visitors; iii) intra-company transferees; and iv) professionals. The list of NAFTA Professional Occupations, which features 63 occupations and their minimum educational requirements, was not modernized even given the emergence of new tech-related occupations. Professionals in these new fields will have to obtain work authorization through other applicable exceptions, even when their professions are commonly found in today’s business world.
III. LEGAL DISCUSSION.
The most important modifications to Chapter 16 are the following:
Treaty Traders Temporary Entry. NAFTA Annex 1603, Section B states that a Party may require a business person to obtain a visa or its equivalent prior to entry, even when such person is seeking temporary entry. Now, the USMCA includes additional language: “Before imposing a visa requirement, the Party shall consult with a Party whose business persons would be affected with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with a Party whose business persons are subject to the requirement with a view to its removal.” Such text is identical to that provided in the other three categories covered under Chapter 16 (i.e. business visitors, intra-company transferees and professionals). In essence, this new language requires the Parties to consult with each other before imposing visa requirements for this category of business persons.
Numerical Limits on Professionals. USMCA Annex 16-A, Section D(2)(b) removes the numerical limits of annual visas for Mexican business persons seeking entry into the United States. NAFTA Annex 1603, Section D (4) – D (7) allowed the NAFTA parties to impose numerical limits on professionals who may qualify for unrestricted access. NAFTA previously allowed an annual numerical cap of 5,500 visas for Mexican business persons seeking entry into the United States.
New Categories for Business Visitors. The USMCA has now independently categorized several professions previously categorized under the “General Service” category. Such professions include public relations and advertisement, commercial transactions, tourism, tour operations and translation.
Working Group Considerations. Chapter 16 requires the Parties to establish a Working Group to meet annually to consider the implementation of Chapter 16, among other items. Specifically, it states that the Working Group shall consider “issues of common interest related to temporary entry of business persons, such as the use of technologies related to processing of applications, that can be further explored among the Parties in other fora.”
Chapter 16 of the USMCA does not make any major changes to the prior immigration provisions of Chapter 16 of the NAFTA and the NAFTA’s TN visa category. However, without an agreement to update the Professional Occupations list for TN visa requirements, practitioners of the emerging professions in USMCA countries will likely face the challenge of how to fit their professions within the USMCA’s occupational definitions.
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