Will Immigration Concerns Be Addressed in NAFTA or Will Swamp Forces Prevail?

President Trump signaled yesterday that he is open to dropping his newly announced tariffs on steel and aluminum imports if the U.S. successfully renegotiates the North American Free Trade Agreement (NAFTA) with Mexico and Canada. “We have large trade deficits with Mexico and Canada. NAFTA, which is under renegotiation right now, has been a bad deal for U.S.A. Massive relocation of companies & jobs. Tariffs on Steel and Aluminum will only come off if new & fair NAFTA agreement is signed,” Trump tweeted.

NAFTA – which went into effect in 1994 and is currently being renegotiated by U.S. Trade Representative (USTR) Robert Lighthizer – eliminated most tariffs on trade between the U.S., Canada, and Mexico. The trade agreement also created a little-known visa program that allows foreign workers to take high-paying professional jobs in America.

Under NAFTA, the TN visa program permits Canadian and Mexican nationals to reside in the U.S. for three years and renew that status an unlimited number of times. Unlike other high-skilled visa programs, the TN visa program contains no protections for American workers. It is estimated that almost 100,000 TN visa holders are currently working in the U.S. in 63 highly competitive professions, including doctors, lawyers, dentists, and engineers.

Even though the TN visa program does not comport with President Trump’s policy of “Buy American, Hire American,” reports have surfaced that Lighthizer is not addressing it in negotiations, and administration officials who urged him to have been sidelined.

Earlier this month, Breitbart News obtained a draft letter from DHS staffers to Lighthizer highlighting the detriment to American workers caused by TN visas included in the current version of NAFTA. However, a holdover career official told the staffers to “stand down” and the letter was subsequently scrapped.

“DHS opposes the inclusion of immigration provisions in NAFTA, because such inclusion is contrary to the aims of Executive Order 13788 ‘Buy American and Hire American,’ would constrain DHS authority to regulate immigration, contravenes Congressional pronouncements, and arguably conflicts with negotiation objectives asserted in current trade promotion authority (TPA),” the letter reads.

It continues:

“All of these positions [filled by TN visa holders]are in high demand by qualified U.S. workers. The TN program is uncapped and includes almost none of the U.S. worker protections Congress has included for certain other temporary worker programs (such as the requirement that employers advertise the position, pay the worker the prevailing wage, and ensure that importing foreign workers will not adversely impact the working conditions of U.S. workers).

…

[R]etaining TN provisions in NAFTA is in tension with the President’s objectives underlying Executive Order 13788, in which he stated that, “to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”

If the steel and aluminum tariffs are indeed being used as leverage to squeeze Mexico and Canada on NAFTA, Lighthizer has the opportunity to come to an agreement that is in line with the president’s views on immigration, and thus favorable to American workers. Will he be able to hear the advice of well-intentioned agency staff this time around? Hopefully. If not, chalk up another victory for the swamp.