Brendan Wypich is a Canadian from Toronto who has been employed in California's tech sector for a decade. His passage across the border has always been facilitated by the NAFTA-created TN program, which allows tens of thousands of professionals from Canada, and Mexico, to temporarily enter and work in the United States every year.
TN status for Canadians – which requires a prearranged job with a U.S. employer but can be obtained at any border crossing and is valid for three years with an option to renew – has worked well for Mr. Wypich, whose job is to make sure apps have a human-friendly flow.
But he says many of the tech jobs in Silicon Valley or Los Angeles didn't even exist when he first moved to the United States, and they certainly aren't on the list of professions allowed TN program entry under the 23-year-old NAFTA.
"That's the main reason you go down there, for something new and innovative," Mr. Wypich, 40, says. "But the professions [on the list] are ancient."
An update to the list could emerge as a material issue in the continuing NAFTA renegotiations. It has been a long-standing irritant for companies on both sides of the border who want to move or hire employees and for the many Canadians who want to be a part of the world's largest economy. Those who want an update argue the outdated list causes unnecessary delays and confusion in the daily movement of professionals – especially for those who work in the tech sector – and hurts North American competitiveness.
"You have a static list of occupations that was decided on in the early 1990s – when the Internet didn't exist yet. And nobody had heard of Web designers as a career," says Edward Alden, a senior fellow at the Washington office of the Council on Foreign Relations. "It's a pretty obvious one that you need to update the list of eligible professions."
But any hopes for modernization of the TN program, even if backed by business, could be swept aside by American political sentiment that the U.S. immigration system is already too permissive.
If an expansion of the TN program is brought up during NAFTA renegotiations, Mr. Alden says it's likely to bump up against long-standing U.S. opposition to expanding any labour-mobility provisions. "The Canadian government is walking headlong into this toxic stew of immigration skepticism in the U.S. Congress."
The TN program has stayed beneath the radar and hasn't engendered wrath like the larger H-1B visa program, which was created to bring skilled foreign workers to the United States from around the world. The Trump Administration has famously seized on U.S. anger over illegal immigration. But the White House and Congress have also targeted legal immigration avenues and have taken up the cause of angry American workers who have been fired from their tech jobs to make way for Indian outsourcing firm employees who have come to the country on H-1B visas.
There is some indication the Canadian government is pushing for an overhaul. Last month, Foreign Affairs Minister Chrystia Freeland said she wants to make the NAFTA-led movement of professionals, "increasingly critical to companies' ability to innovate across blended supply chains," easier.
"NAFTA's Chapter 16, which addresses temporary entry for businesspeople, should be reviewed and expanded to reflect the needs of our businesses," Ms. Freeland said.
The TN program, for any of its faults, has been widely embraced by Canadians who want to work south of the border. U.S. Customs and Border Protection officials say 150,000 Canadians entered the country with TN status last year, up from approximately 105,000 in 2014.
Likewise, NAFTA also allows U.S. and Mexican professionals temporary work access to Canada, but the numbers are much smaller. In 2016, 17,602 Americans and 691 Mexicans were issued NAFTA-backed temporary work permits by Canadian authorities.
The occupations list for all three countries contains more than 60 job descriptions in health, finance and other professions, including architects, management consultants, occupational therapists, teachers and poultry scientists. Although NAFTA allows for the list to be updated by a working group representing the three signatories, only two occupations – plant pathologists and actuaries – have ever been added, in 2004.
"For those Canadians who have got TN visas in the last 23 years, it's been a wonderful thing. For the rest of the professional world, it doesn't do much," says U.S. immigration lawyer Greg Boos, who splits his time between Vancouver and his office in Bellingham, Wash.
"I see a lot of people who are turned down, who don't fit," Mr. Boos says, adding that happens especially in professions related to the tech sector.
Mr. Boos says the other complaint about the TN program is the sometimes erratic nature of processing by U.S. authorities. U.S. Customs and Border Protection officials say they rarely turn away a Canadian seeking TN status. But in Mr. Boos's experience, a Canadian travelling to the United States through Vancouver international airport is less likely to be grilled by U.S. officials than someone passing through Toronto Pearson, or a land crossing.
When NAFTA came into force in 1994, it was a "breakthrough" in global labour mobility, says Carlo Dade, director of the trade and investment centre at the Canada West Foundation. It gave Canadians who fit the professional categories list almost unparalleled access to jobs in the United States. And, unlike Mexicans, Canadians don't usually need a visa to enter the United States under the TN category.
But as the decades have passed, other labour-mobility agreements – such as the Asia-Pacific Economic Cooperation (APEC) business travel card – have progressed beyond NAFTA when it comes to ease of business movement, Mr. Dade says.
In Washington, Mr. Alden says the only way to get U.S. buy-in on modernizing the TN occupations list is if it can somehow be sold as a modest tweak to benefit American competitiveness. But even that strategy is a long shot.
"I just don't understand how you package this politically, in a way that stands a snowball's chance in hell in the Congress."