On July 1, 2020, the new trade agreement between Canada, the U.S. and Mexico entered into force, replacing the decades old North American Free Trade Agreement (NAFTA). However, the only change in Chapter 16 of the new agreement is the name. The process of the temporary entry under the new agreement is in the same manner as before.
CUSMA (Canada-United States-Mexico Agreement), known as “USMCA” in the US and “T-MEC” in Mexico, seeks to expand access to each of the member state’s markets by easing the ability to sell, provide goods and services, or trade and invest in each other’s countries.
Chapter 16 of CUSMA gives the means and processes for selected categories of temporary workers (what we normally call business people) to trade, sell, provide goods and services, or invest in each other’s markets. It does this by facilitating the following:
- If you are a citizen of Canada, the US, or Mexico and are involved in the trade of goods and services or investment your temporary entry into the other two member’s countries is made easier.
- All business people covered by CUSMA may enter Canada without an LMIA.
- If you are what is classified as a business visitor, you do NOT need a work permit to enter Canada.
- If you are a professional and a citizen of one of the 3 member states, and you are exempt from having to apply for a Temporary Resident Visa, then you can apply to enter Canada at what is called your Port of Entry (POE) which is generally the airport you arrive in Canada at. It could also be a border crossing or a port in Canada, for example, if you are a foreign national from a country whose citizens have to obtain a TRV to enter Canada, then you must apply for your visa at a visa office before boarding your flight to Canada.
Keep in mind that chapter 16 of CUSMA does NOT cover all forms of entry to Canada. CUSMA does NOT facilitate the following:
- Any entrance related to permanent residence is NOT covered by CUSMA. It only deals with temporary visitors under defined categories of business people.
- It does NOT change general requirements as to passports, identity documents, medical examinations, safety and security checks, etc.
- It does NOT exempt licensing and/or certification requirements for any foreign professional wishing to temporarily work in Canada.
- Spouses and members of the business person’s family are NOT given preferential treatment. They are treated exactly the same as any other temporary visitors spouse and children as per the Immigration Refugee Protection Act (IRPA) and Immigration Refugee Protection Regulations (IRPR).
- While citizens of Mexico, Canada, and the US including the District of Columbia and Puerto Rico are included, US citizens of the following locations are NOT included:
- Northern Mariana Islands
- American Samoa
- US Virgin Islands
- Please note as well that Permanent Residents of Canada, the US, and Mexico are NOT included in CUSMA.
Let’s now look at the categories of business people covered by CUSMA.
I Business Visitors
These are business people who are allowed to enter Canada without a work permit and are engaged in international business in one of the following areas:
- Research & Design
- Growth, Manufacturing & Production
- After-sales Service
- General Service
The following requirements apply to business visitors:
- They must be citizens of the member states which means to enter Canada they must be US or Mexican citizens
- They must be engaged in the above-listed business activities
- Their activities must be international in scope.
- They must NOT be intending to work in Canada which must be shown by:
- Their primary source of remuneration is outside Canada, AND
- Their principal place of business is outside Canada
- They meet all admissibility and other requirements to enter Canada.
Business Visitors are allowed to apply for entry into Canada at their POE, but must comply with the following documentation requirements:
- Proof of American or Mexican citizenship (a passport is preferred but other documentation may be allowed)
- Proof that you are engaging in a temporary visit under the allowed activities listed above. You will be given a chance to fax or email documents or to provide a satisfactory verbal explanation in some cases.
- If you will be engaged in after-sales service, then you will need copies of the following: the original sales, service or warranty agreement and any extensions of such agreements.
- After-sales Service visitors must only be engaging in the following service activities:
- Install, repair, supervise or train workers for the following types of equipment & machinery: commercial & industrial equipment or machinery; computer equipment or software manufactured or bought outside Canada, work specified by the contract, work requiring specialized knowledge.
- An example of allowed specific activities a business visitor would be engaged in might include one of the following:
- Participating in conventions
- Business Solicitations
- Only specialized knowledge workers can perform after-sales service in Canada. The following areas are NOT allowed:
- Utility services
- Any part of a building or structure that requires hands-on labour to build
- Machinery, equipment, or structures within a building
- Labour done by any construction and trades workers from electrical to plumbing, from elevator constructors to sheet metal workers, from carpenters to bricklayers and millwrights etc.
- Anything involving cranes, conveyer belts, assembly lines, HVAC systems, boilers, turbines, dismantling or demolition work etc.
- If you will be entering Canada a number of times for your business visits, then you may be issued what is called a Visitor Record by Canadian immigration authorities.
These are business persons who provide pre-arranged professional services, through their Canadian employer or through a contract between their American or Mexican employer and a Canadian company. Professionals require a work permit to enter Canada but do not need an LMIA (Labour Market Impact Assessment).
Professionals must comply with the following requirements:
- Mexican or American citizenship (in order to enter Canada)
- Have the necessary qualifications/certifications to work in the profession in Canada
- Provide the appropriate professional level of service
- Have a contract with a Canadian employer
- Comply with existing immigration and admissibility requirements
- Exercise one of the following 63 approved professions:
- Computer Systems Analyst
- Disaster Relief Insurance Claims Adjuster
- Graphic Designer
- Hotel Manager (See note below for further details.)
- Industrial Designer
- Interior Designer
- Land Surveyor
- Landscape Architect
- Lawyer (including Notary in the Province of Quebec)
- Management Consultant
- Mathematician (including statistician and Actuary)
- Range Manager/Range Conservationist
- Research assistant (working in a post-secondary educational institution)
- Scientific Technician/ Technologist
- Social Worker
- Sylviculturist (including Forestry Specialist)
- Technical Publications Writer
- Urban Planner (including Geographer)
- Vocational Counsellor
- Medical Laboratory Technologist (Canada)/ Medical Technologist (Mexico and the U.S.)
- Occupational Therapist
- Physician (teaching or research only)
- Physiotherapist/Physical Therapist
- Recreational Therapist
- Registered Nurse
- Agriculturist (including Agronomist)
- Animal Breeder
- Animal Scientist
- Biologist (including Plant Pathologist)
- Dairy Scientist
- Geophysicist (including Oceanographer in Mexico and the U.S.)
- Physicist (including Oceanographer in Canada)
- Plant Breeder
- Poultry Scientist
- Soil Scientist
- College teacher
- Seminary teacher/professor
- University teacher/professor
A Professional under CUSMA may apply for a work permit:
- At their POE, or
- At a visa office prior to travelling to Canada
As well, Mexican and American professionals can apply for Canadian professional status once they have obtained their work permit and been authorized to enter Canada on a temporary basis.
Professionals under CUSMA need the following documentation:
- Proof of American or Mexican citizenship
- Proof or confirmation of pre-arranged employment such as:
- A signed contract with a Canadian company
- Evidence of an offer of employment from a Canadian employer
- A letter from a Mexican or American employer on whose behalf services will be provided to a Canadian enterprise/company
- Documentation that indicates:
- Who the proposed employer in Canada is
- What profession will be involved
- Details on the position involved (title, duties, duration, payment etc.)
- Educational or other qualifications/credentials required
- Evidence that the professional visitor has the minimum required educational credentials
Durations of work permits for professionals:
- Initial work permits can be issued for up to three (3) years
- Extensions can also be granted for up to three (3) years with no limit on the number of extensions
III Intra-Company Transferees
These are persons employed by an American or Mexican company in a managerial or executive capacity involving specialized knowledge that are being transferred to the Canadian enterprise, parent, branch, subsidiary, or affiliate in order to provide services.
Intra-company transferees must meet the following requirements:
- Be a US or Mexican citizen
- Be employed in an executive or managerial capacity, or that involves specialized knowledge
- Transfer to an enterprise that has one of the above listed relations to the company in Mexico or the US (parent, branch, etc.)
- Have had a similar position in the company for at least 1 year during the previous 3 years
- Comply with existing immigration/admissibility requirements
Intra-company transferees can apply for a work permit:
- At their POE
- At a visa office before travelling to Canada
- As soon as they are authorized to enter Canada as visitors
The following documentation must be presented when entering Canada:
- Proof of American or Mexican citizenship
- Evidence that the applicant is currently employed by a company outside Canada
- Confirmation the applicant has been employed for at least 1 year (on a full-time basis) for the previous 3 years
- A letter of introduction from their employer stating:
- Their current position
- Their specialized knowledge
- The position in Canada they will temporarily occupy
- Duration of stay in Canada
- A description of the relationship between the company/enterprise in Canada and the company/enterprise in Mexico or the US
Please note that immigration officials will be ensuring that the Mexican or American company will be doing business in Canada on a regular and systematic basis. As well they will ensure that the applicant is at the executive or managerial level by checking that:
- An executive employee will perform duties that are:
- Involved in directing or managing the organization or significant part of the organization
- Will establish goals and policies for the organization
- Has a broad range of decision-making powers
- Receives only supervisory direction from executives above them
- A managerial employee will perform duties that include:
- Managing the organization or a part thereof
- Managing the work of supervisors, professionals, or other managers
- Has the power to hire, fire or make recommendations for promotions etc.
- Has discretion over day-to-day operations
- A specialized knowledge worker must demonstrate that they have a high degree of both proprietary knowledge and advance expertise.
- Proprietary knowledge is company-specific expertise related to a company’s product or services that are not allowed to be duplicated by other companies
- Advance expertise means the company’s products or services and its application are uncommon in international markets; or their production, research, equipment, techniques or management at advance level
Durations of work permit for intra-company transferees:
- Initial work permits can be granted for up to three (3) years. However, for a start-up to open an office or to be employed in a new office, an initial permit can only be for a maximum period of one year
- Extensions can also be granted for up to three (2) years
- There is a limitation or a “cap” on the total duration of The maximum total period of stay for a person employed in an executive or managerial position is seven (7) years, and five (5) years for a position requiring specialized knowledge.
IV Traders & Investors
These are people who carry out a substantial trade of goods and services between the US or Mexico and Canada and are or will commit a substantial amount of capital in Canada.
While they are exempt from an LMIA, traders and investors must apply for a work permit at a visa office abroad before travelling to Canada. Generally, work permits will be for up to 1 year with possible extensions of up to 2 years for a total of up to 3 years.
The following requirements apply to traders:
- Mexican or American citizenship is held
- The company/enterprise they work for is Mexican or American
- Evidence may be required to prove the nationality of the enterprise
- Their activities involve a substantial amount of trade with Canada
- The trade is mainly between the US or Mexico and Canada
- The position of the trader is supervisory or executive involving essential skills vital to the company’s Canadian operations
- They comply with general immigration/admissibility requirements
The following requirements apply to investors
- The applicant has American or Mexican citizenship
- The enterprise/company is American or Mexican
- Substantial investment is being or will be made
- The applicant will solely be concerned with developing and directing the enterprise
- If the applicant is an employee, they must be an executive or a supervisor with essential skills
- The applicant must comply with general immigration/admissibility requirements
Please note that both traders and investors must complete an Application for Trader/Investor status form (IMM5321) along with their application for a work permit. Go here to download the form.
Please note also that immigration officials in Canada need proof that the investment is close to being realized or has been realized for you to qualify as a trader/investor. Merely scouting locations or preparing to sign a contract may not be considered enough in which case it might be better to apply as a Business Visitor.
For more information, contact Mary Zhang at Maxcan’s office in Markham, Ontario in the Greater Toronto Area.