Since the H-1B visa cap was reached on June 11, 2012, U.S. employers wishing to hire a foreign worker who is a Canadian or Mexican citizen should consider the TN visa category.  The TN visa category is part of the North American Free Trade Agreement (NAFTA) and permits Canadian and Mexican citizens to enter the United States to participate in professional business activities on a temporary basis.

Under the TN visa category, Canadian and Mexican citizens are permitted to work in the U.S. in certain defined professional occupations, including, but not limited to, Accountant, Architect, Computer Systems Analyst, Engineer, Hotel Manager, Management Consultant, Mathematician, Scientific Technician/Technologist, and Scientist.  There are specific educational requirements and alternative credentials for each category and TN status is only available to individuals employed in the listed occupations who possess the required credentials. 

The TN visa category is available to an unlimited number of Mexican and Canadian citizens.  Unlike the H-1B visa category, the TN visa category does not have a numerical limit on how many visas are available each year.  Under the TN visa category, a Canadian or Mexican citizen can obtain employment authorization in three-year increments and renew indefinitely. 

In order to apply for a TN, Canadian citizens can simply apply for TN status at a U.S. port of entry.  Canadian citizens are not required to obtain a visa at a U.S. Consulate.   However, Mexican citizens are required to apply at a U.S. Consulate and obtain a TN visa stamp in their passport prior to entering the U.S.

Whether applying at a U.S. port of entry or at a U.S. Consulate, applicants for a TN must provide the following documentation:

• Valid Canadian or Mexican passport as proof of citizenship;
• Offer letter of employment from U.S. employer, detailing the professional position and applicant’s credentials;
• Proof of applicant’s qualifications, including degree, diploma, and/or experience letters; and
• Application fee.

Due to the availability of the TN visa for qualified applicants, the TN visa is an option for employers seeking to immediately hire a Canadian or Mexican citizen into a professional position.  Once employers have identified a potential candidate for TN status, they should contact an immigration attorney to evaluate whether the offered position and the candidate’s credentials fit within one of the defined TN occupations and will support a TN application.   

On Friday, November 4, 2011, Vermont Governor Peter Shumlin and the Department of Public Safety issued a new policy for the Vermont State Police which impacts when the State Police are allowed to question a person’s immigration status.

The policy makes clear that State Police cannot inquire into a person’s immigration status during a civil investigation, such as a routine traffic stop.  The new policy explains it is not the law enforcement priority for the Vermont State Police to detect or apprehend individuals whose only violation is that they are in the U.S. without authorization.  Further, the policy provides that in a criminal investigation, State Police can only inquire into a person’ s immigration status if it is relevant to the criminal investigation or the person is under arrest. 

The new policy, designed to reaffirm the Vermont State Police’s commitment to unbiased policing, stemmed from an incident in September of this year where a State Police officer questioned a  passenger in a car about his immigration status during a routine traffic stop.  The passenger in the car was a Mexican farm worker who has since been detained as a suspected illegal immigrant.  The detainment of this migrant farm worker prompted protest from the migrant worker community, who believed that the state trooper should not have questioned the passenger about his immigration status during a routine traffic stop. 

In a television interview following the incident, Vermont Gov. Shumlin said, “Vermont farmers can’t survive without workers from outside America. That’s just the way it is.  We’ve got to keep our dairy farms strong, we’ve always had a policy in Vermont where we kind of ‘look the other way’ as much as we can.”

Although it was determined that the state trooper’s action was proper, Gov. Shumlin stated that “we owe it to our troopers to provide them clear guidance about state law enforcement priorities and parameters.”  The new policy for State Police clarify the circumstances under which an individual’s immigration status may be considered by the State Police. 

Vermont’s new policy to the State Police is yet another example of how states are continuing to enact immigration-related legislation and policy.  Despite state policy, it is still the Federal Government’s job to enforce our nation’s immigration laws, and the U.S. Immigration and Customs Enforcement (ICE) continues to audit the I-9 forms of employers across the nation. 
Will Vermont’s new policy act as an invitation for ICE to investigate employers in the state, especially dairy farmers, regarding the immigration status of their workers?

On paper, the restrictive covenant law in Mexico looks a bit like California, but on closer examination it may be easier for a company to achieve certain goals in Mexico.  For U.S. practitioners, Mexico offers an interesting example of just how different employment laws in general – and restrictive covenant law in particular – can be in a different legal system.  In Mexico, the first principles from which all restrictive covenant law derives are found in the Mexican Constitution.  The Constitution of the United Mexican States contains prohibitions and guarantees intended to protect all Mexican citizens and the Mexican economy. 

Article 5 of the Mexican Constitution expressly prohibits enforcement of any contract by which a person renounces his or her right to exercise a given profession or industrial or commercial pursuit:

 . . . The State cannot permit the execution of any contract, covenant, or agreement having for its object the restriction, loss or irrevocable sacrifice of the liberty of man, whether for work, education, or religious vows. . . .  Likewise no person can legally agree to his own proscription or exile, or to the temporary or permanent renunciation of the exercise of a given profession or industrial or commercial pursuit.  A labor contract shall be binding only to render the services agreed on for the time set by law and may never exceed one year to the detriment of the worker, and in no case may it embrace the waiver, loss, or restriction of any civil or political right.  Non-compliance with such contract by the worker shall only render him civilly liable for damages, but in no case shall it imply coercion against his person.

Article 123(aa) of the Constitution guarantees employment rights:

The following conditions shall be considered null and void and not binding on the contracting parties, even if expressed in the contract: . . . .

h. stipulations that imply waiver of any right designed to favor the worker in the laws of protection and assistance for workmen. . . .

In a more general way, Article 28 preserves business competition in Mexico.  See Constitution of Mexico (Text translated from Constitución Política de los Estados Unidos Mexicanos, Trigésima Quinta Edición, 1967, Editorial Porrua, S. A., México, D. F. Originally published by the Pan American Union, General Secretariat, Organization of American States, Washington, D.C., 1968).

In light of these constitutional pronouncements, the baseline rule in Mexico is that covenants not to compete are unenforceable.  In addition, the courts have consistently held unenforceable even the lesser restraint of a covenant not to solicit customers.  On the other hand, confidentiality and non-disclosure covenants that are designed to protect a company’s confidential business information are enforceable.  In addition, trade secrets are protected under Mexico’s Industrial Property Law, which is similar in concept and structure to the Uniform Trade Secrets Act adopted by so many jurisdictions in the United States.  In all of these ways, the law in Mexico resembles the regime that exists in California.

There is, however, an approach that some companies have taken in Mexico that allows them to create financial incentives for a former employee to abide by bargained-for post-employment restrictions.  Some employers have included post-termination covenants in employment agreements, and then assigned a specific and separately enumerated payment of lump sum consideration in exchange for the employee’s agreement to the restrictive covenant.  This money must be paid ahead of time, and may not be deferred until termination or the post-employment restrictive period.  If a departing employee competes or declares his intent to compete, the employer may be able to sue the former employee to seek return of the consideration previously provided for the restrictive covenant.  Essentially, the employer goes to the court and seeks invalidation of the illegal covenant, which entails the former employee returning to the employer the money the company had previously paid for the covenant.  Many employees will not wish to risk the possibility that a judge will order them to repay money previously received, and instead will react to these economic incentives and elect to comply with the post-termination covenant, even though it is a covenant that could not be enforced in court.   This approach, of course, can be seen as a bit of an “end run” around the Mexican proscriptions against non-compete agreements, and although it may have worked at times in the past, there is no guarantee that courts in the future will not at some point reject the argument that the “illegal” covenant should be stricken down and the parties returned to the status quo ante.

Next up….China. 

Christopher P. Stief is the chair of Fisher & Phillips' Employee Defection & Trade Secrets Practice Group and a member of the firm's International Employment Practice Group.  To receive notice of future blog posts either follow Christopher P. Stief on Twitter or on LinkedIn or subscribe to this blog's RSS feed.