A Study in Contrasts
Professional Visas Under NAFTA

by Bradly J. Condon
Professor of International Business
Instituto Tecnológico
Autónomo de México
Mexico City

Reprinted from Texas Business Review (www.utexas.edu/depts/bbr/tbr), October 2002, with the permission of the Bureau of Business Research, The University of Texas at Austin.

Noteworthy differences mark the U.S. requirements for NAFTA visas for Canadian professionals and those for professionals from Mexico. The agreement requires the three countries to grant temporary entry1 to citizens under four categories: business visitors, traders and investors, intracompany transferees, and professionals. To qualify in the last category, the profession must be included in a NAFTA list of more than sixty professions, and the professional must have the specified educational qualifications. 2 Currently, the United States imposes no limit on these visas, also known as TN visas, for Canadian professionals but restricts Mexican professionals to 5,500 visas per year. This limit is due to be phased out January 1, 2004. The extensive NAFTA list of professions means that a large number of Mexicans will soon qualify for temporary entry visas, which if the U.S. government respects the date for eliminating this quota, could noticeably affect competition between Mexican and U.S. professionals in the border region. 

The Requirement Gap
In addition to the numerical limit, Mexican professionals face more onerous visa requirements than Canadians. Both must have a letter offering employment in the United States, proof of citizenship, and proof of professional engagement in one of the listed occupations. Mexicans must also show a non-immigrant visa, a prior petition by the employer, and Department of Labor certification. Canadians can apply for the visa at the border, but Mexicans must apply in advance at a U.S. consulate or embassy. The Department of Labor certification is the most difficult  arrier. The certification requires proof that U.S. workers will not be adversely affected by the granting of the visa. It consists of attestations by U.S. employers as to the numbers of U.S. workers available to undertake the employment sought by an applicant and the effect of the applicant’s employment on the wages and working conditions of U.S. workers similarly employed. Determination of labor availability in the United States is made at the time of a visa application and at the location where the applicant wishes to work. Compared to other types of U.S. visas, NAFTA visa requirements for Canadian professionals are quite simple. Hence, Canadian professionals (and their U.S. employers) now use this visa more than any other U.S. non-immigrant visa. Of the more than 100,000 Canadians admitted under fifteen non-immigrant visa categories in fiscal year 1999, almost 62 percent used the TN visa. Moreover, it appears that significantly more Canadians are using temporary work visas, rather than permanent visas. In a Canadian survey of 1995 university graduates who moved to the United States, 90 percent entered with a temporary visa, and 72 percent of those used a TN visa. Canadian professionals can renew their TN visas annually and remain indefinitely in the United States (as long as they do not intend to stay permanently), effectively integrating this sector of the U.S.-Canadian labor market. In fiscal year 1999, the United States admitted 68,354 non-immigrant workers under the TN visa: 67,076 of these were from Canada and 1,278 were from Mexico. This disparity in the numbers indicates that the additional requirements imposed on Mexicans restrict access to TN visas more than the limit of 5,500 visas per year. As long as those requirements remain in place, the removal of the limit in 2004 is unlikely to result in a large increase in the numbers of TN visas granted to Mexican professionals.

The Qualifications Gap
Another possible explanation for the paucity of visas granted to Mexican professionals is that their qualifications differ significantly from those of their Canadian and U.S. peers. This results in a relative lack of mutual recognition or certification procedures for Mexican professionals in the United States. (For example, the United States has offered an equivalency exam for Canadian chartered public accountants for some time, but only recently began to implement a similar mechanism for Mexican accountants.) Furthermore, licensing and certification of professionals is often governed by independent professional organizations. In many cases, therefore, the government has delegated the power to determine, via temporary or permanent licenses, whether professionals from other countries are qualified to practice. For this reason, NAFTA only requires that governments “shall endeavor” to have selfgoverning professions follow certain principles in licensing and certification procedures, which is clearly non-obligatory. 

The numbers in the following table indicate that when skilled Mexicans and Canadians face the same visa requirements, similar numbers qualify for entry. The removal of the labor certification requirement for NAFTA visas for Mexicans would likely produce a much greater impact than the removal of the 5,500 quota. If Mexican professionals become subject to the same requirements as Canadians, it would be easier for U.S. employers to recruit in Mexico than overseas. In border states such as Texas and California, this could dramatically increase the cross-border provision of professional services. 

Other Options
The H1B visa program is comparable to the TN visa. Under this program, the United States issues six-year visas (renewable after three years) to foreign-born workers with college degrees and special skills. H1B classification applies to persons in specialty occupations that involve the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires certification by the Department of Labor. Although primarily aimed at hi-tech workers, the program includes other professionals such as architects, engineers, and university professors. At present, nearly 50 percent of these visas go to workers from India, with China in second place. As of November 2001, the Immigration and Naturalization Service had approved 163,200 H1B guest worker petitions against the fiscal year 2001 limit of 195,000. Approximately 29,000 petitions were still pending, bringing the total number of requested H1B visas to 192,000. An additional 30,000 H1B visas applications pending from fiscal year 2000 were processed in 2001 under a special exemption, and 135,000 additional H1B visas were granted under an open exemption provided to research and academic institutions, bringing the total to more than 300,000. The requirements for Mexicans are virtually the same for H2B and TN visas. However, Mexican professionals use ten times more H2B visas to work in the United States. It is not clear whether this is due to the limit on TN visas for Mexican professionals, the longer duration of the H2B visa, or lack of employer awareness regarding the TN visa option. 

Conclusion
Despite the apparent availability of temporary work visas for Mexican professionals under U.S. non-immigrant visa programs and NAFTA, and the geographic proximity of Mexico, relatively few Mexican professionals secure visas. Making U.S. requirements for Mexicans the same as Canadians under TN visas would increase the attractiveness of Mexican professionals to U.S. employers by making recruitment faster and easier. This would facilitate the cross-border provision of services, particularly in the U.S.-Mexico border region. It is likely that the harmonization of TN visa requirements would have a much greater impact than the removal of the quota in 2004. 

Notes
1. “Temporary entry” is defined as entry without intent to establish a permanent residence.  

2. General, medical, scientists, and post-secondary teachers are the four categories of professional. The general category includes professions such as accountant, architect, economist, engineer, and lawyer and technical professions such as computer systems analyst, graphic designer, and land surveyor.

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