Kia is attempting to get a class action lawsuit tossed that alleges visa fraud and exploitation of workers in the little-known TN visa category. The accusations tell a common story in a rarely discussed visa category that was first created in the North American Free Trade Agreement (NAFTA). When President Trump renegotiated that agreement, his Administration chose not to alter the terms of the TN visa in his United States-Mexico-Canada Agreement (USMCA). The lawsuit tells the story of Mexican high-skilled engineers being roped in with promises of high paying white-collar jobs that turned into low pay blue-collar assembly line work. The labor exploitation keeps on rolling on the river.
For a little background, the TN Visa applies to nationals from treaty signatories Mexico and Canada. The visa does require employer sponsorship, but the regulations are extremely limited. Basically, the employer must simply provide a letter to Customs and Border Protection (if Canadian) or to the Department of State (if Mexican) attesting that they want to hire the alien for a job provided under the list of approved professions for the visa. These professions include everything from lawyers, to teachers, to dentists. Other than the profession restrictions and the requirement that the employer attest to hiring the alien for one of those professions, there are no labor requirements that attach like with other temporary work visas. There are no requirements for labor certification or for recruiting American workers before seeking foreign workers. Similarly, employers are not required to pay a prevailing wage in the profession, nor is there any numerical cap on the number of TNs allowed into the United States annually.
Given what we know about the extensive abuse in more highly regulated visa categories, it is not at all surprising that the largely unregulated TN visa is rife with abuse as well. The allegations in the lawsuit are that Mexican engineers were lured to the United States with a promise of office jobs, and then put on the assembly line for manual labor. This means employers are finding ways to violate visa categories even when the rules are minimal to begin with. While these are allegations that have not been proven in court, they seem plausible when you look at reports of abuse within the category.
Centro de los Derechos del Migrante, Inc. (CDM) released a report in 2017 that alleged similar bait-and-switch employment arrangements where alien professionals were promised one job and then forced into manual labor. That report also lists other abuse that we see across the temporary worker categories, including wage theft and illegal recruitment fee collection. There have been other lawsuits alleging similar recruitment of TN professionals for manual labor.
So, while we are simply at the pleading stage of the Kia lawsuit, this is not the first time we are hearing of abuse within the category. Many aliens have suffered similar fates. When you mix limited regulations and unlimited numbers and throw in a dash of unscrupulous employers, this type of abuse ensues. It is also another example of how odd it is to hear our business community and Congress bemoan a lack of legal pathways to enter the United States. How many more legal pathways do we need? At the very least, we need to secure the existing pathways before creating more exciting ways to exploit foreign labor.
President Trump missed a grand opportunity to introduce reforms or outright eliminate the TN visa during his renegotiation of NAFTA. It is a failure that has vast repercussions for both American and foreign workers. The opportunities to reform TN are limited, given its existence is tied to a treaty, rather than to statute. This is the primary reason that immigration policy should never be created within trade agreements or treaties. Not only does the government largely neglect labor interests in trade agreements, but the ability to amend the requirements of the visa are minimal. We should not barter away labor protections for the benefit of corporate profits.
However, the Departments of Labor, State, and Homeland Security should all at least attempt to enforce the meager requirements of the visa to protect foreign professionals and the blue collar workforce they are being defrauded into replacing. One obstacle, as we have noted before, is that the sheer number of foreign nationals being admitted to work in the United States far exceeds the government’s capacity to oversee. This is why even in highly regulated visa categories we see extensive exploitation of the most egregious kind. Congress needs to overhaul temporary work visas with an aim of reducing the numbers to a level that can be protected by the existing bureaucracy. In the meantime, the Executive Branch should pay attention to the obvious recurring fraud themes within visa categories and focus on enforcement instead of rubber stamping approvals. When the same common abuse themes keep repeating and the government keeps missing them, it appears that the abuse is a feature, not a bug.
JARED CULVER is a Legal Analyst for NumbersUSA
