Preliminary deal on NAFTA to leave mobility provisions in place

The Trump administration has reached a preliminary agreement in renegotiating the North American Free Trade Agreement (NAFTA), which will be renamed the United States-Mexico-Canada Agreement. A draft of the preliminary agreement has been posted on the Office of the U.S. Trade Representative website.

The mobility provisions that provide for temporary entry of business people in this draft remain largely the same as under NAFTA.

Key mobility provisions:

• As under NAFTA, each country will provide for the temporary entry of business persons engaged in trade, provision of services or investment activities without requiring labor certification and without numerical caps. The categories include business visitors, traders and investors, intracompany transferees, and a list of designated professions.
• The list of eligible business visitors and designated professions, contained in the annex of Chapter 16 of the preliminary draft, is identical to the current NAFTA list.

Background: President Trump originally promised to tear up NAFTA, but agreed to renegotiate its terms last year. Last month, the U.S. and Mexico announced that they had reached a tentative deal, but talks between the U.S. and Canada stalled in recent weeks over trade issues, particularly involving U.S. auto and dairy exports to Canada. The preliminary agreement does not address the administration’s steel and aluminum tariffs on Canada and Mexico or their retaliatory tariffs.

BAL Analysis: If ratified, the preliminary U.S.-Mexico-Canada Agreement indicates that designated professionals listed under the agreement will likely continue to be eligible for expedited mobility across North American borders on the same terms as NAFTA, including TN visas to the U.S. However, it is unclear how much support the administration has in Congress for the trade provisions, and ratification of the deal could face obstacles. Congress will not vote on the trade pact until 2019, and the mid-term elections next month could change the composition of Congress, potentially making passage more difficult. BAL is following these negotiations and will continue to update clients on any significant immigration developments. Because the NAFTA immigration provisions have been made part of immigration law and regulations, they would likely remain in place until the law and/or regulations are changed, even if the trade accord is terminated.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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