Friday, March 24, 2017

Can the leopard change its spots?

Conservative elements within US Customs and Border Protection (CBP) rank and file membership stationed on the US / Canada border have failed in efforts to redefine who may qualify as a Registered Nurse for NAFTA professional status. Before their efforts were thwarted, the autocrats threatened to disrupt health care delivery in a major US city, and left wounds at an unknown number of healthcare facilities throughout the nation.

Chapter 16 of NAFTA contains four provisions designed to enhance labor mobility between the NAFTA partners. One provision, the Trade NAFTA (TN) professional category, provides for cross-border mobility work for designated professionals. The NAFTA lists more than 60 approved professions as eligible for TN professional status, and all must have professional education and training. NAFTA professionals seeking entry to the US must document Canadian or Mexican citizenship, appropriate credentials, and an offer of professional employment from a US employer.

The NAFTA lists “Registered Nurse” as one of the qualifying TN professions. Due to an acute national shortage of highly trained nurses, healthcare institutions across the US rely on Canadian Registered Nurses to round out their staffing needs.

In early March, CBP stationed at a west coast port of entry denied TN Registered Nurse status to a highly qualified Nurse Practitioner bound for service at a premier west coast medical facility. By mid-month, what started as a single ill-advised TN denial had reached epidemic proportions, spreading as far as Detroit where perhaps 30 or more Registered Nurses bound for work at Henry Ford Hospital had their TNs pulled or denied. The effort to reinterpret NAFTA threatened to become a national plague.

The affected Registered Nurses had more advanced skill sets and performed more advanced level duties than entry level Registered Nurses; many were Nurse Practitioners, Nurse-Midwives, and Nurse Anesthetists who had served patients in the Detroit area for years. 

To justify its denials CBP said that the Registered Nurse profession under NAFTA did not cover these specialized nurses, because NAFTA, which requires nurses to have a degree in nursing and appropriate licensing, does not define who is a Registered Nurse. CBP’s reasoning ignored long standing US Department of Labor guidelines in effect at the time of NAFTA negotiation recognizing that the profession of Registered Nurse includes Nurse Practitioners, Nurse-Midwives, and Nurse Anesthetists.

CBP has taken a hard-line approach to insulate its restrictive adjudications of TN matters. It has advised its officers to ban TN applicants from the US if the inspecting officer does not believe the applicant to be eligible for TN status and the applicant declines to withdraw the application for admission. This means there is no formal process available for review of a TN denial by CBP.

Nevertheless, the denials shocked the health care community. As concern over CBP’s actions grew, CBP blamed its victims. It issued a statement attributing its denials to “improper paperwork presented by the traveller” and “lack of proper documents needed to grant a TN non-immigrant classification.” Individual CBP Officers also attributed the denials to the President, stating such denials were a new Trump policy.

International press coverage put the denials squarely before national CBP representatives, who reversed Detroit CBP decisions to deny the Nurse TN applications.  A statement was issued, stating the agency performed a review and “deemed that those [nurses with] specialized degrees do fall under the TN status.” The crisis was defused.

Excessively restrictive CBP adjudication of TN matters is common, but the aggrieved parties generally cannot harness the power of the press to secure a high level review of the denials. The specialized Registered Nurses denied TN status at Detroit are fortunate to have had both a major hospital and the statewide nurse’s union come to their assistance. In the meantime, it is unknown how many other specialized nurses bound for destinations other than Detroit were denied TN status and whether the decisions in those cases have been reversed.

Nursing is not the only profession to be affected by hostile TN adjudications; approvable matters across the full range of TN professions are denied every day.  Meanwhile conservative elements within CBP have mounted a systematic campaign to reverse a July 24, 2000 ruling indicating that the TN “Engineer” category should be broadly interpreted to allow those with bachelor’s degrees employed as “software engineers” to fit within its parameters.

It seems that the leopard cannot change its spots.