At its core, NAFTA was less a trade pact than a political, immigration, and investment agreement.Pat Choate, Dangerous Business, 2008
A Dallas, Texas TV station (WFAA) did an excellent news report recently. In it, they tell how NAFTA TN visas were used to replace 100 American airline mechanics with cheaper ones from Mexico. It all happened at a company called San Antonio Aerospace (SAA).[Loophole allows for easy immigration for aircraft mechanics,
WFAA.com, June 17, 2009]
This newsletter has discussed the TN (Trade NAFTA) visa many times. It is used to import the same types of foreign professionals as H-1B, except that the TN visa has far less protections for Americans, and the number of visas is unlimited from Canada and Mexico. It`s a recipe for disaster!
I wrote a paper in 2003 about TN visas. Nothing has changed since then so you can read about it here:
Embedded Visas by Rob Sanchez, Social Contract Press, 2003
The WFAA research and investigative journalism is first class, and the video report on their website is stunning and very scary. My only problem with the article is that they blamed what happened on loopholes in NAFTA. After close examination I just don`t think the loopholes they allege exist. Let me explain:
For starters, NAFTA doesn`t have a loophole to allow mechanics, and even AILA agrees
"In order for an occupation to qualify as a "Scientific Technician/Technologist" under NAFTA Appendix 1603.D.1, the position must involve the use of principles of science, research and development, and/or scientific observations and calculations. (This is from the DOL job description.) The position must be in direct support of a professional in one of the sciences. The position must primarily include activity consistent with the support of a science professional. (This is from NAFTA Appendix 1603.D.1, footnote 5.) The technician who assists the engineer in the lab to design and develop a new technology may qualify as a scientific technician, but the mechanic who repairs and maintains that same technology after its built and used in everyday life, is not a scientific technician. From AILA InfoNet Doc. No. 08022774 (posted Feb. 27, 2008)."
At first glance even the text of the NAFTA agreement would seem to prohibit mechanics from using TN visas. NAFTA has a list of professionals that can get a TN visa in "Chapter Sixteen: Temporary Entry for Business Persons."
The professional titles are extensive and each one is defined. Scientific Technician/Technologist is defined as follows:
"Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and (b) 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."
: "A business person in this category must be seeking temporary entry to work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics."
It`s difficult to see how NAFTA would allow aircraft mechanics to get the designation of "Scientific Technician",
but that`s exactly what SAA did. So, how did they get away with it? As usimmigrationblog describes the situation:
the Scientific Technician / Technologist and Management Consultant categories are prone to abuse by ineligible applicants and are therefore scrutinized more heavily by the CBP officers.
Of course that leads to the next question: what is a CBP officer? In short, they are border patrol agents who get promoted to officers. Most importantly — THEY ARE NOT LABOR EXPERTS! Look at it this way — CBP officers have spent most of their careers risking their lives
to enforce border laws, and to catch illegal aliens, so it`s just not realistic to expect them to be able to be able to split hairs over highly technical job descriptions — even if they have received several hours of training on how to do so. If you have any doubt about the difficulty go to Chapter Sixteen
and see if you could do it.
So, the loophole isn`t in the NAFTA agreement as much as the implementation, which in turn a result of intentional lack of enforcement and review by the United States government. Keep in mind that the pressure is on the CBP officer to approve the visa, and if he/she denies it the refusal could be construed as a violation of NAFTA, and at the very least they may be subject to review by their bosses. Under the circumstances a CBP officer would be masochistic to deny the TN visa.
To show just how difficult it could be for CBP officers, just consider that flight engineers and mechanics are often mentioned together. Take this job description from a career website:
Before a flight, the flight engineer inspects the outside of the plane to make sure there are no fluid leaks and that tires are inflated properly. If any problems are found, the engineer calls in mechanics to repair the plane.
Based on that description, the CBP officer should approve visas for airline mechanics. Your eyes are probably glazed over by now with NAFTA legalese, but go back to "Footnote 5"
of the NAFTA text and you will understand why a CBP officer might choose to approve the visa. In this case a TN visa could be justified for airplane mechanics. In order to deny this type of visa would require a very in-depth knowledge of the airline industry. It`s quite unlikely that many CBP officers have this expertise.
There is no way the Mexican mechanics are as good as the Americans they replaced, but they probably are a lot cheaper. We need only three words to describe what the result of this type of corporate globalism means: CRASH, BURN, and DIE!
Please excuse me for evil thoughts, but if an airplane crashes because of those substandard Mexican mechanics, my wish is that all of the architects of NAFTA chartered the plane so that they could go to a WTO meeting or a DOHA negotiation.