NAFTA under fire

Treaty to be re-written?

Hilary Clinton and Barack Obama are each aiming to become the next president of the United States, in part, by threatening to re-write NAFTA.

Both Clinton and Obama are unhappy with the way things have turned out for American workers since the treaty’s implementation in January 1994. Obama has frequently claimed that “trade deals like NAFTA ship jobs overseas and force parents to compete with their teenagers to work for minimum wage at Wal-Mart”.

Although NAFTA became law early on in her husband’s administration, Clinton maintains that, “I have been critical of NAFTA for years” and that “we have to change it”.

From the outset, the treaty faced strong opposition in Canada, Mexico and the United States when it promised to “eliminate barriers to trade” and “facilitate the cross-border movement of goods and services” between those countries.

NAFTA’s reduction or elimination of tariffs on imported goods is viewed as an indirect threat to domestic jobs by making foreign goods more competitive with locally made ones.

With respect to services, NAFTA’s immigration provisions arguably constitute a direct threat to local jobs by eliminating the traditional immigration barriers to certain foreign professionals and business visitors. This approach runs counter to the immigration laws of most states which usually deny admission to foreign workers when there are locals ready and willing to take those jobs.

Therefore, Canadian professionals and businesspersons can work in the US in occupations listed in NAFTA even where there are plenty of Americans available to fill those positions. The trade-off is that Mexican and American citizens can do the same here.

Because these provisions are counter-intuitive to our immigration laws and those who enforce them, it is no surprise that border officials of all three countries sometimes enforce them strictly, literally, and occasionally even resentfully.

Canadian citizens applying for TN visas in the U.S. should remember the following:

• The job offer should include the identical job title listed in NAFTA. For example, admission as a “computer systems analyst” as listed in NAFTA should not be supported with a job offer describing the position as a “network administrator”, or “director of I.T.”, etc. since those jobs are not listed.
• The job duties listed in the offer of employment must be consistent with the ordinary and usual duties associated with that job title. A job offer as a “management consultant” will be rejected if it contains duties that are more consistent with that of a “manager”.
• The minimum educational requirements listed must be met regardless of the applicants’ suitability for the position.

I doubt that NAFTA will actually be unraveled anytime soon. Nonetheless, it’s good to remember that an unhappy party to an agreement should not be expected to be more generous than legally required.

Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at