January 13, 2017

A Practitioner’s Call for Employment Immigration Reform



Before the election, immigration reform proposals centered around innovating ways to increase H1-B visas, recapture unused immigrant visas, remove country caps, and to push for a startup visa. 

On November 9th, those plans took a turn.

While it is still important to advocate for smart improvements, it is equally necessary to defend against adverse changes to immigration law and policy—particularly in areas of employment immigration.                                                                                                                                         

It is likely that President-elect Trump’s promise to renegotiate the North American Free Trade Agreement (NAFTA) will curtail one of the most popular professional visas in the United States—the NAFTA Professional (TN) visa.  

Renegotiating NAFTA almost certainly includes ending or dramatically limiting the number of TN visas available—between 600,000 and 700,000 TN visa entries were made per year since 2012—that allow citizens of Canada and Mexico to work in the United States as NAFTA professionals for prearranged business activities.

The benefits of protecting TN visas are widespread. TN visa holders help fill fields with deficient numbers of American workers, like healthcare professions. In Seattle, we see a lot of technology workers immigrating, but also need a broad spectrum of other industry professionals, such as doctors, vets, and dentists. Given the drastic shortage of H-1Bs available each year—well below the demand—often, the only way to fill these additional needs is to use TN visas.  

Changing the provisions of NAFTA may also impact two additional popular economic development visas—the E-1 Treaty Trader and E-2 Investor visas.

Both nonimmigrant visas allow foreign nationals of a treaty nation to enter the United States and carry out substantial trade or investment. A treaty nation is one that maintains a treaty of commerce and navigation, or a bilateral agreement with the United States. Examples include Australia, Canada, Denmark, Germany, and Ireland.

Canadian and Mexican citizens contribute a great deal to the United States’ economy using these visa categories. E-2 visa holders must invest a substantial sum to qualify for the visa (on average, about $100,000). A renewal requirement of the visa requires proof of annual revenue growth and job creation, confirmation that significant economics contributions are made by the E-2 visa holders that have been in the United States for decades.

Employment enforcement will also take center stage in the new administration—namely, a permanent E-verify system. E-verify is an online system that allows businesses to determine the eligibility of their employees to work in the United States by comparing records between the Department of Homeland Security and the Social Security Administration. It is not mandatory that all employers use E-verify right now, although it is mandatory for federal contractors and vendors. About 20 states also passed legislation making E-verify mandatory for additional businesses.

In its current state, E-verify is far from perfect. If made mandatory without reforming other areas of immigration law, many industries will feel immediate impacts. The system does not always produce accurate responses, is relatively costly, and has negatively affected U.S. citizens in some instances of error.

In general, immigration reform is long overdue in the United States, but reforming enforcement mechanisms in isolation will not solve the myriad immigration problems we currently face.

In my new role as adjunct fellow with my colleagues at the Niskanen Center, we will continue to push for immigration policies that are good for America and its future, and defend against those that limit opportunity, stifle growth, and ignore those in need. Never has our role been more important than now.