Erickson in the News: Mexicans have a special route to the US job market. Trade wars could close it off

Melia Russell | June 16, 2019


As a candidate, Donald Trump began his campaign by attacking Mexicans. Now, some here legally fear they’ll be collateral damage in his trade wars.

For a quarter century, skilled Mexican citizens have been able to get three-year work permits under a provision of the North American Free Trade Agreement. But President Trump recently threatened to rip up that pact in negotiations with Mexico over border security.

Even though he and Mexican officials reached a detente this month, some workers fear that they could lose their status in the next flare-up over trade. The cloudy outlook could also pose problems for Bay Area employers that hire skilled workers using the permit, known as the Trade National, or TN, visa.

“That’s a lot of uncertainty to live with when this is your life, this is your job,” said Benjamin Gonzalez O’Brien, a professor of political science at San Diego State University. “And it’s not clear that, for immigrants of any kind, (immigration policy) is going to be something more predictable.”

Engineers, accountants, scientists and other college-educated professionals in Mexico and Canada have long been able to apply for temporary work visas created by NAFTA, a pact between the U.S. and those two countries, which went into effect in 1994. A successor to that treaty, the United States-Mexico-Canada Agreement, was signed by the countries in November, but has not been ratified by Congress.

In addition to lowering trade barriers, NAFTA allowed people to move across the border with less friction. Initially, the number of work permits, known as NAFTA Professional visas, issued to Mexicans was limited to 5,500 a year. That cap was lifted in 2004. Last year, the State Department issued 27,374 TN visas, which are also called NAFTA Professional visas, to Mexicans — the most on record.

Immigration lawyers sometimes pitch the TN visa as an alternative to the better-known H-1B visa, commonly used for high-skilled workers, which are limited to 85,000 a year. And workers can renew TN visas again and again, provided their stay is temporary.

Justin Parsons, an attorney at Erickson Immigration Group in Arlington, Va., works with a lot of tech clients. He estimates about 10% of the visas the firm handles are TN visas, mostly for Canadians. “It’s used pretty heavily,” he said, “because it doesn’t have the same numerical restrictions that a H-1B does.”

These visa holders account for a small but growing percentage of arrivals from Mexico: Around 2% of nonimmigrant visas issued to Mexicans in 2018 were TN visas, up from 0.8% a decade ago, according to government data. The number of Mexicans entering the H-1B lottery has declined since 2013, with employers filing 2,239 petitions for workers from Mexico in 2017.

Mexican workers with a job offer in one of about 60 qualifying professions can apply and be interviewed at a U.S. consulate or embassy to get the visa. A customs officer at an airport or border station decides the length of the person’s stay, up to three years.

An interview can take just minutes, according to Parsons, though he noted that some of his Canadian clients, who have historically been able to apply for a TN visa at the border, have encountered more scrutiny since the Trump administration announced a campaign to favor American workers over immigrants.

“One of the most common questions that I’ve had clients get was, ‘Can an American do your job?’” he said. “We had so many reports of clients getting asked that question, we knew it wasn’t an outlier of one or two (customs) officers. This is something they’re training officers to ask.”

The State Department’s yearly visa report doesn’t say where these visa holders settle down, but it’s reasonable to think many end up in California. It has the largest immigrant population of any state, with 4.1 million Mexican nationals in 2017, according to census data. U.S. Customs and Border Protection spokesman Frank Falcon said the agency doesn’t collect statistics on where TN visa holders work.

In the Bay Area, some employers specify whether they accept applicants who require visas to work in the states. Online job postings for companies such as global consulting firm Accenture and game developer Niantic say TN visa holders are not eligible. The companies did not comment on their policies. Parsons said an employer can choose not to hire an individual if they need visa sponsorship.

One area of confusion, according to job applicants, is the requirement for employee sponsorship. With H-1B visas, sponsorship is a complicated process that can cost thousands in attorney fees. Those who qualify for the TN visa need only pay a $160 fee and provide a college transcript and an offer letter from the employer, though lawyers frequently send workers to the border with other supporting documents to bolster their case.

The new trade pact makes no changes to the visa, said Jeffrey Gorsky, senior counsel at Berry Appleman and Leiden, one of the world’s largest immigration firms, in Washington. Legislatures in all three countries still need to approve the accord.

The threat to visa holders is if Trump unilaterally withdraws from NAFTA or the new pact once it takes effect, said Gorsky, who advised foreign service officers on visa issues as an employee of the State Department for 36 years. That became a distinct possibility in May, when Trump threatened to impose a 5% tariff on goods from Mexico, unless it stemmed the flow of illegal migrants from Central America through Mexico. The president withdrew the threat after Mexico and the U.S. signed a deal on border policy.

Peter Leroe-Muñoz, a former attorney who leads policy efforts on technology issues at the Silicon Valley Leadership Group, said the tariffs had the potential to torpedo the trade deal. Many of the business-advocacy group’s 330 member companies rely on skilled workers from outside the country to meet an immediate need for tech labor, he said.

“It absolutely perplexes me that the president, that the administration, would go out of its way to alienate a major trading partner with the United States,” Leroe-Muñoz said.

If one country kills the treaty, “the issue becomes, what happens to the people who are here?” Gorsky said.

They could stay in Mexico, where demand for tech talent is on the rise, and wages and housing costs are lower. Big employers such as Oracle, Intel and IBM are hiring there, said Terminal founder Dylan Serota, whose San Francisco company helps startups build remote engineering teams. This year, Terminal is opening a co-working space for its customers who want to recruit in Guadalajara. Wizeline, a San Francisco software company, also has its main operational base in the city in western Mexico. Some workers are Mexican citizens, while others are immigrants to Mexico; the company says work visas for international employees are much easier to secure in Mexico than in the U.S.

NAFTA has no expiration date, so it stays in place if the new trade agreement falls through, which means workers on the TN visa shouldn’t worry, said Gonzalez O’Brien, the political science professor. Even if Trump were to withdraw from NAFTA, the U.S. would likely honor existing visas through their effective date, though workers would not be able to renew them.

Still, O’Brien said, “I wouldn’t want to be an immigrant in America in these times — legal or illegal.”

Humberto Batiz Guerrero, 26-year-old doctoral candidate at UC Berkeley, says he doesn’t think too much about what he will do after his expected graduation in 2022, when his international student visa expires.

For now, his biggest fear is that a customs officer will prevent him from getting back into the country after visiting friends and family in Guadalajara, a trip he makes about three times a year. On past trips, he felt that customs officers were looking for reasons to deny him entry, asking more pointed questions than is typical and disputing his answers.

“Because, I mean, (Trump is) not attacking illegal immigrants,” said Batiz Guerrero, calling from Guadalajara two weeks ago during a visit. “He’s attacking Mexicans.”