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| Subject: NAFTA Educational Requirements |
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NAFTA leaves workers in the lurch with unclear education requirements
Getting a Canadian, American, or Mexican work permit can be relatively simple fare for professionals applying under NAFTA.
However, there can be some rather unpleasant surprises in store at the border for those who don?t look beyond NAFTA for clarification on the "Minimum Education Requirements and Alternative Credentials" for the sixty-three listed professional occupations listed in the agreement.
The treaty lists the professions for which a national of one country can apply to work in another party state. Applicants must meet the listed requirements associated with that profession. The problem is that the treaty does not always define those requirements clearly.
For example, lawyers meet the requirements if they have an LL.B., J.D., LL.L., B.C.L. or licenciatura degree of if they have membership in a state or provincial bar. This requirement is fairly clear. However, it is no so clear for other occupations i.e. general accountants, computer systems analysts, and graphic designers. Such individuals meet the requirements if they have a "baccalaureate degree". The treaty does not specify what field of study the degree must be in for that specific occupation. Can the degree be in a completely unrelated field? If not, how close does the degree have to be?
These questions are being asked with increasing frequency as more business is being transacted across our borders.
NAFTA requires the parties to "endeavour to develop and adopt common criteria, definitions and interpretations for the implementation" of the provisions dealing with temporary entry for business persons. The parties have not entered into anything in writing to provide clarification as to what degrees will suffice for a particular profession.
Citizenship and Immigration Canada?s (CIC) policy manuals state that "In instances where a baccalaureate degree is required, the degree must be in the specific field or in a closely related field." Although the US Department of State?s Foreign Affairs Manual (FAM) does not contain a similar clarification, its officers are applying a similar test. Unfortunately, many questions remain.
For example, would a math degree be sufficiently "related" to the field of accounting, computer systems analysis or graphic design? The answer may be of particular interest to those who have many years of IT experience but who earned degrees in mathematics before degrees in computer sciences were being offered in their universities.
Another example might include an applicant who has been offered a position as a management consultant in an IT company. Would s/he qualify with a degree in computer sciences or be better off with a degree in business administration?
In some occupations, there can even be problems when there is no question that the applicant meets the stated minimal educational requirements as set out in NAFTA. Since July 26, 2004, certain health care workers intending to work in the United States are required to have their credentials evaluated. They must also be in possession of a certificate granted by an approved credentialing organization prior to being granted a work permit. These requirements apply to certain health-care workers listed in NAFTA, although they are not expressly stated there.
An even more interesting example involves the NAFTA occupations of scientific technicians and technologists. NAFTA does not require them to have any degree or diploma of any kind. They simply need to be in "possession of a theoretical knowledge" of one of a dozen disciplines and the "ability to solve practical problems in any of those disciplines or the ability to apply principles of any of those disciplines to basic or applied research". This would lead the reader to conclude that no formal education is required to apply under this category.
However, a look at the Interpretive Notes published on the website of Foreign Affairs and International Trade Canada proves that this is not necessarily the case. It reads, "Generally, the [scientific technician?s and technologist?s] theoretical knowledge should have been acquired through at least two years of training in a relevant educational program. Such training may be documented by presentation of a diploma or a transcript accompanied by evidence of relevant work experience." This position is shared by the US as well.
To apply under certain occupations, i.e. as an economist, a person must be in possession of a bachelor or licenciatura degree. If the degree was earned outside of Canada, the United States, or Mexico, there is an additional requirement set out by the Americans at 9 FAM 41.59 N7.1 for "an evaluation by a reliable credentials evaluation service specializing in evaluating foreign documentation". The Canadian approach is as follows: "Baccalaureate degrees ... need not have been obtained in colleges or universities in the United States, Mexico or Canada, whereas post-secondary diplomas or certificates should have been earned in one of the three NAFTA countries."
In terms of licensing the issue seems to be clearer. If, say, an American engineer wished to work in Canada s/he would not need to be in possession of a Canadian license at the Canadian port-of-entry. The CIC manual clearly states that "It is not the role of immigration to determine whether or not the applicant has the necessary license or registration to practice a profession in Canada. The employer in Canada and the professional are responsible to ensure that such requirements are met before employment commences". South of the border, licensure to practice a given profession is not a prerequisite to a TN visa.
NAFTA acknowledges the "desirability of facilitating temporary entry on a reciprocal basis and of establishing transparent criteria and procedures for temporary entry". However, lawyers and their clients often have a lot at stake when they have to guess how an officer might interpret some of the more ambiguous requirements of the treaty. This uncertainty can only place all concerned at risk for no good commercial reasons.
THIS ARTICLE CAME OUT IN THE LAWYER´s WEEKLY REVIEW AND IT WRITTEN BY GUIDDY MAMANN.
Roy
www.cvimmigration.com
[20-10-2007,12:52]
[**.52.219.36]
Roy |
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(in reply to: NAFTA Educational Requirements)
This is an issue of free movement between TRADING PARTNERS, Canada, Mexico and the Unites States of America hence the term North American Free Trade Agreement (NAFTA)!
Roy
www.cvimmigration.com
[20-10-2007,12:56]
[**.52.219.36]
Roy |
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