NAFTA Implementation of Strikebreaker Provisions

I. Strikebreaker Provisions-General

Chapter 16 of the North American Free Trade Agreement (NAFTA) includes an important safeguard for the Domestic Labor Force of each NAFTA country which the United States-Canada Free-Trade Agreement did not contain. This provision under article 1603 allows each NAFTA country to refuse to issue an immigration document authorizing employment where the temporary entry of the NAFTA business person might affect adversely the outcome of a labor dispute or the employment of any worker involved in such a labor dispute.

Enabling legislation (the North American Free Trade Agreement Implementation Act) authorizes the United States to invoke this NAFTA provision at section 214(j) of the Immigration and Nationality Act.

Specifically, this provision applies to Canadian and Mexican citizens seeking entry to the United States as Traders and Investors (E-1 and E-2), intracompany transferees (L-1), and Professionals (TN). The United States shall carry out this "Strikebreaker" at the time of:

1. Adjudication of the petition, where required, or:

2. Application for nonimmigrant visa, where required, or;

3. Application for admission at a POE.

The current regulations controlling the E, and TN categories provide that the Secretary of Labor shall certify to or otherwise inform the INS that a strike or other labor dispute involving a work stoppage is in progress, and that the temporary entry of the Canadian or Mexican citizen in such nonimmigrant classification may affect adversely the settlement of any labor dispute or the employment of any person who is involved in such dispute. Such notification from the Department of Labor may include the locations and occupations affected by the strike.

Based upon such notification or certification of the Secretary of Labor and as provided at 8 CFR 214.2(e)(3), or 8 CFR 214.2(l)(18), or 8 CFR 214.6(k), the Service shall determine if the temporary entry of the applicant may affect adversely the settlement of any labor dispute or the employment of any person who is involved in such dispute.

Written notification of refusal must be provided to (1) the NAFTA business person and (2) the NAFTA country of which the business person is a citizen.

II. Procedures to be followed.

This wire provides guidance to be followed in all cases where NAFTA business persons are refused classification or admission as E-1, E-2, L-1, or TN based on Article 1603 of NAFTA.

Dependent family members of NAFTA business persons (E, L, and TN) are not directly subject to the provision inasmuch as they are not authorized to work in the United States incident to their dependent status. However, they are affected indirectly as they are classifiable as E-1, or E-2, L-2, and TD solely on the basis of the classification of the principal alien. Where a principal alien is refused classification under NAFTA, the dependent family members are not classifiable as dependents.

For purposes of this provision, the Employment Authorization Document refers to either Form I-129, classifying the alien as L- 1, E, or TN or the Form I-94 arrival-departure record.

Steps to be taken by the POE or Service Center:

1. Notify in writing the applicant of the reasons for refusal (this can be the routine INS notice of denial at a Service Center, Form I-797, or the routine notice of refusal at the POE.)

2. Notify Headquarters Adjudications, Chief, Nonimmigrant Branch, in writing (Fax 202/514-5014) of the refusal. The following information must be provided:

(a) Name and any known address of the business person

(b) Citizenship of business person

(c) Date and place of refusal of document authorizing employment (I-94)

(d) Name and address of prospective employer

(e) Position to be occupied

(f) Requested duration of stay

(g) Reasons for refusal

(h) Reference to appropriate statutory or regulatory authority for refusal (if applicable)

(

i) Statement indicating that the business person was informed in writing of the refusal and the reasons for the refusal.

HQADN shall notify in writing the appropriate government officials whose citizen was refused an employment authorization document pursuant to this NAFTA provision.

III. Intent of Provision

Article 1603 established this safeguard to be consistent with the overall objectives of Chapter 16: Recognition of the preferential trading relationship between the parties through facilitated entry procedures of business persons while ensuring border security and protection of the Domestic Labor Force. The application of this "Strikebreaker" shall be made on a case-by- case basis in order to determine whether the NAFTA business persons entry would affect adversely a strike or other labor dispute. Keep in mind that executives, managers, and other specialized employees of a business may be admissible to engage in activities which do not affect adversely a labor dispute.

Questions concerning this NAFTA provision may be directly through appropriate channels to HQADN, Nonimmigrant Branch, at 202/514- 5014.

James A. Puleo