International Agreements
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
This page contains information on the temporary entry provisions of the North American Free Trade Agreement (NAFTA).
The text of the actual agreement is found in part V, Chapter 16.
The NAFTA seeks to liberalize trade between the U.S., Mexico and Canada and abolish tariffs and other trade barriers. The Agreement opens up the three countries’ markets by ensuring that future laws will not create barriers to doing business.
In order for trade to expand, individuals must have access to each other’s country to sell, provide goods or services or trade and invest. Chapter 16 of the NAFTA, entitled “Temporary Entry for Business Personsâ€, provides the mechanisms to allow selected categories of temporary workers access to each other’s market(s).
Chapter 16 eases the temporary entry of citizens of the U.S., Mexico and Canada, whose activities are related to the trade of goods or services, or to investment. The NAFTA is a reciprocal agreement and Canadians will be afforded similar treatment when seeking entry to the U.S. or Mexico. Chapter 16 does not replace, but adds to our existing general provisions. An American or Mexican business person seeking entry to Canada is eligible for consideration under the provisions of the NAFTA, as well as the general provisions which apply to all foreign workers.
The NAFTA reflects a preferential trading relationship initiated between Canada and the U.S. under the Free Trade Agreement (FTA) and now expanded to include Mexico. With the coming into force of the NAFTA, the FTA was suspended.
Chapter 16 of the NAFTA is modelled on the FTA and deals only with temporary entry of selected business persons. It has no effect on permanent residence. The Agreement defines temporary entry as entry without the intent to establish permanent residence.
Under the NAFTA, the U.S., Mexico and Canada are required to meet a number of obligations. Among them are the publication of a public information booklet on temporary entry under the NAFTA and the provision of statistical information. Given the growing public image of the NAFTA and the importance of sharing information with our NAFTA partners, it is crucial that data entered into FOSS or GCMS be as accurate and as complete as possible in order to meet our obligations related to statistics.
A trilateral Temporary Entry Working Group, consisting of officials from departments which have an interest in the temporary entry of workers, meets every year to oversee the implementation and administration of Chapter 16 of the NAFTA. The director of Economic Policy and Programs (SSE), Selection Branch (SSD), and U.S. and Mexican immigration officials co-chair this working group. The Working Group is also responsible to develop measures to facilitate temporary entry of business persons on a reciprocal basis.
The temporary entry provisions of Chapter 16 of the NAFTA are restricted to citizens of the U.S., Mexico and Canada. In the case of the U.S., citizens of the District of Columbia and Puerto Rico are covered by the NAFTA; however, citizens of Guam, the Northern Mariana Islands, American Samoa and the U.S. Virgin Islands are excluded from the NAFTA.
Permanent residents of the three countries are not covered. They are, however, covered by the general provisions governing the temporary entry of foreign workers.
The temporary entry provisions of the NAFTA are to be used in addition to the general entry provisions governing foreign workers. The business visitor category is the same as the generally-applied rule in R186(a) except that the general rule allows for after-lease servicing with the same conditions, while NAFTA is slightly more restrictive and requires a sale.
The other three categories of business person are eligible for work permits through R204(a), which exempts from the LMIA process persons whose entry is granted pursuant to an international agreement between Canada and other countries. Administrative codes have been assigned to each category.
Business persons included in Chapter 16 of the NAFTA are grouped under four categories:
Business visitors engage in international business activities related to research and design; growth, manufacture and production; marketing; sales; distribution; after-sales service; and general service. These activities reflect the components of a business cycle (see Appendix 1603.A.1 of Chapter 16).
Business visitors are authorized to enter Canada for business purposes under R186(a) and can carry out their activities without the need for a work permit.
Professionals are business persons who enter to provide pre-arranged professional services— either as a salaried employee of a Canadian enterprise, through a contract between the business person and a Canadian employer, or through a contract between the American or Mexican employer of the business person and a Canadian enterprise. Appendix 1603.D.1 of NAFTA lists more than 60 occupations covered by the Agreement. Professionals enter to provide services in the field for which they are qualified.
Professionals are not subject to an LMIA but require a work permit (R204, T23).
Intra-company transferees are employed by an American or Mexican enterprise in a managerial or executive capacity, or in one which involves specialized knowledge, and are being transferred to the Canadian enterprise, parent, branch, subsidiary, or affiliate, to provide services in the same capacity.
Intra-company transferees are exempt from the LMIA process but require a work permit (R204, T24).
Traders and investors carry on substantial trade in goods or services between the U.S. or Mexico and Canada or have committed, or are in the process of committing, a substantial amount of capital in Canada. Traders and investors must be employed in a supervisory or executive capacity or one that involves essential skills.
Traders and investors are not subject to the LMIA process but require a work permit (R204, exemption codes T21 and T22, respectively) for which they must apply at a visa office before departing for Canada.
In assessing applications for temporary entry by citizens of the U.S. or Mexico, all available mechanisms for temporary entry should be considered. An American or Mexican citizen who is not eligible for entry under the NAFTA may qualify under the general provisions governing temporary workers.
In making admission decisions the overall objectives of the NAFTA which seek to facilitate trade between Canada, the U.S. and Mexico should be considered.
The following general definitions, contained in Chapter 2 “General Definitions†and Chapter 16 “Temporary Entry for Business Persons†of the NAFTA deal with temporary entry:
Note: Temporary entry means entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence. This definition is consistent with Canadian immigration law. It is sufficiently flexible to respond to the needs of business persons and it recognizes that the concept of temporary entry cannot, in most situations, be based simply on a specific time limitation. The definition is not to be perceived as being open-ended, nor as a mechanism to circumvent procedures applicable to permanent residence.
Like many temporary workers, temporary workers authorized to enter Canada under the NAFTA are allowed to work temporarily either in a temporary or permanent position. The NAFTA cannot be used, however, as a means to remain in Canada indefinitely.
Labour certification tests: In Canada, this means the Employment and Social Development Canada LMIA or the LMIA of a job offer for a temporary foreign worker. (R203)
Procedures of similar effect: These are administrative or legal requirements related to immigration procedures which may have the result of delaying or preventing a business person from engaging, or continuing to engage, in a covered profession, occupation, or activity. They do not include the immigration procedures established by Canada, the U.S. or Mexico:
Chapter 16 contains a labour dispute clause which permits an officer to refuse to issue a work permit where the entry of a person would adversely affect the settlement of a strike in progress or the employment of a person involved in the strike.
“2. A Party may refuse to issue an immigration document authorizing employment to a business person where the temporary entry of that person might affect adversely:
3. When a Party refuses pursuant to paragraph 2 to issue an immigration document authorizing employment, it shall:
The provision applies only to NAFTA business persons subject to the requirement for a work permit: professionals, intra-company transferees, and traders and investors.
To comply with Articles 1603.3(a) and 1603.3(b) of the NAFTA, officers are required to:
See General Provisions for more information on examining and processing business visitors
The following requirements apply:
Business activities covered by Appendix 1603.A.1 are activities of a commercial nature which reflect the components of a business cycle:
Appendix 1603.A.1 of the NAFTA is reprinted in section 2.7. The wording of the Appendix has been modified from the official NAFTA text and explanatory notes added.
Appendix 1603.A.1 is not exhaustive but illustrates the types of activities covered. It is not merely the activities but the requirements for business visitors which must be considered.
Professionals described in Appendix 1603.D.1 can be authorized to enter Canada under the general service provision of the business visitor category when they are not seeking to enter the labour market and the primary source of remuneration remains outside Canada, in other words, when they meet the Business Visitor criteria.
Business visitors must apply at a POE in the same manner as persons covered by other paragraphs of R186. An application cannot be made prior to arriving in Canada.
Business visitors can be authorized to enter Canada at the Primary Inspection Line, except persons applying for entry under the after-sales service provision, who must be referred to Immigration Secondary.
A business visitor must provide the following documentation:
In addition to establishing the purpose for entry, the officer should confirm that the applicant retains employment outside Canada (as an employee of an enterprise or as a self-employed individual) and that the primary source of remuneration remains outside Canada. In general, an individual who is to be paid in Canada would be considered to be joining the labour market and could not be authorized to enter Canada as a business visitor. The payment of expenses incidental to the trip is allowed, as is an honorarium
Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional or business conventions or meetings and soliciting business.
As the NAFTA is a facilitative agreement, the applicant should be given every opportunity to establish that the admission criteria for business visitors are being met and to provide any missing documentation by alternative means, such as by fax.
A verbal statement that the business of the applicant is being carried on outside Canada can be acceptable. Alternative indications (business cards, business papers, advertising pamphlets, etc.) may be helpful.
When dealing with applicants for temporary entry under the after-sales service provision of Appendix 1603.A.1, copies of the original sales, warranty or service agreement and extensions of such agreements are needed.
Existing policies and procedures pertaining to the documentation of visitors and to extensions apply.
Because of the nature of the activities of a business visitor, the stay in Canada will usually be short- term.
Business visitors may seek entry to Canada for a number of regular visits related to a specific project. These visits may take place over a period of weeks or months. In these circumstances, consideration should be given to issuing a Visitor Record to facilitate entry and to reduce potential referrals to Immigration Secondary.
Persons authorized to enter Canada under the after-sales service provision for a period (on-the-job) longer than two days must be issued a Visitor Record.
If a Visitor Record is issued, the special program identifier “FTA†or “054†should be used.
Applications for extension of status should be based on the requirements specified above.
The temporary entry provisions of Chapter 16 of the NAFTA are restricted to citizens of the U.S., Mexico and Canada. In the case of the U.S., citizens of the District of Columbia and Puerto Rico are covered by the NAFTA; however, citizens of Guam, the Northern Mariana Islands, American Samoa and the U.S. Virgin Islands are excluded from the NAFTA.
Permanent residents of the three countries are not covered. They are, however, covered by the general provisions governing the temporary entry of foreign workers.
All persons applying for entry under the after-sales service provision of Appendix 1603.A.1must be referred to Immigration Secondary.
The following requirements apply:
After-sales service includes the installation, or repair, or servicing of commercial or industrial equipment or machinery, or computer software.
Installation includes only setting-up and testing of the commercial or industrial equipment or machinery, or computer software. It does not include operating the equipment or machinery, or computer software for production and excludes hands-on building and construction work. The term installation generally refers to activities which do not include hands-on building and construction work, such as installation of computer software.
Building and construction work includes installing, maintaining and repairing:
Building and construction work includes activities normally performed by (but not limited to):
Building and construction work includes work involving:
Also, persons are not covered by this provision if they are seeking entry to engage in site preparation work, services installation (for example, electricity, gas, water) and connection of the commercial or industrial equipment or machinery to such services.
The person seeking entry must possess specialized knowledge essential to the seller’s contractual obligation.
“Specialized knowledge†is considered to be a very high degree of knowledge only given to an already skilled person through extensive training. In determining whether the person possesses specialized knowledge, the following factors should be considered:
The person must be employed by an enterprise established in the U.S. or Mexico.
The person’s proposed activities in Canada must be supported by clear wording in a sales, warranty or service contract.
Equipment or machinery leased or rented from an enterprise outside of Canada is not covered under the after-sales service provision. For computer software, “purchase†includes a licensing agreement.
The purchase of the equipment or machinery or computer software is usually made by a direct sales transaction between a manufacturer or distributor abroad and an end-user in Canada. However, a sales transaction between a foreign manufacturer or distributor and an affiliate (e.g., parent or subsidiary) or an unrelated distributor in Canada, which in turn sells or leases the merchandise to an end-user, is also covered by this provision. In this instance, the Canadian enterprise selling or leasing to the merchandise to an end-user, is also covered by this provision. In this instance, the Canadian enterprise selling or leasing to the Mexico to provide such services.
Where lease arrangements are involved, it is the initial cross-border transaction which must have involved a sale. The lease arrangement between the Canadian purchaser and an end user is covered as long the equipment remains the property of the original purchaser and the sales, warranty or service agreement is still in effect.
While NAFTA only provides for after-sales situations, the general provision for business visitors R187, under which this section of NAFTA is implemented) allows individuals to enter pursuant to both sales and lease agreements.
A person must present the following documentation:
The warranty or service contract must be incidental to, or connected to the sale of commercial or industrial equipment or machinery, including computer software.
It does not mean that a warranty or service agreement must have the same date as the sales agreement. Particularly with third party service, it may take a number of months after the sale before the company installing or servicing the machinery is identified and sub-contracted.
The initial warranty or service agreement may be extended provided that the sales agreement, or initial warranty or service agreement contained a provision allowing for the extension. The after- sales service, therefore, continues to be contracted as part of the sale of the equipment or machinery, or computer software.
Before refusing entry based on the lack of documentation, every effort should be made to allow documentation to be provided (e.g., by fax) from the company in Canada or the person’s employer in the U.S. or Mexico.
The requirement for documentation has been imposed in order to clearly establish that the proposed activity is incidental or connected to the sale of the equipment or machinery or computer software. The other parties to the agreement impose the same requirements.
No. The NAFTA does not relieve after-sales service personnel, or any other business person, from the obligation to comply with municipal, regional, provincial/territorial, or other federal requirements where these apply.
The grant of entry indicates only that the person complies with the requirements of the Act and Regulations and with the provisions of Chapter 16 of the NAFTA.
Where entry is sought for a period (on-the-job) of longer than two days, a Visitor Record is to be issued to after-sales service personnel. The Visitor Record should be notated “no hands-on work allowed†and be coded FTA or 054.
A Visitor Record serves to facilitate and to control. It is a useful mechanism for providing information to the person entering concerning the activities that are allowed in Canada. The location(s), as well as the name of the company in Canada, should be indicated on the document.
Amended to include interpretive notes - the official text of Appendix 1603.A.1.
The term “commercial transactionâ€, found in some provisions in Appendix 1603.A.1 may be described as any act, within the confines of the law, which is performed expressly to derive a profit. A “commercial transaction†refers only to discussions and negotiations respecting the sale, purchase, marketing, distribution, advertisement, procurement, transmission, transportation or packaging of goods or services.
Technical, scientific and statistical researchers conducting independent research or research for an enterprise located in the U.S. or Mexico.
Growth, manufacture and production
Harvester owner supervising a harvesting crew authorized to enter Canada under applicable law.
Purchasing and production management personnel conducting commercial transactions for an enterprise located in the U.S. or Mexico.
Market researchers and analysts conducting independent research or analysis or research or analysis for an enterprise located in the U.S. or Mexico.
Trade fair and promotional personnel attending a trade convention.
Note: This provision covers American and Mexican customs brokers travelling to Canada to consult and not to provide brokerage services.
Installers, repair and maintenance personnel, and supervisors, possessing specialized knowledge essential to a seller’s contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside Canada, during the life of the warranty or service agreement.
Note: “Business associates†refers to colleagues or clients.
Note: Tourism personnel and tour participants must congregate at a point in the U.S. or Mexico and travel as a group when entering Canada. Tourism personnel wishing to use Canada as a base and seeking entry to conduct tours from within Canada are subject to the LMIA process.
Note:
The following requirements apply:
The temporary entry provisions of the NAFTA are to be used in addition to the general entry provisions governing temporary foreign workers.
Facilitated entry under the NAFTA allows an intra-company transferee to make an application at the POE. An application can also be made at a visa office before departing for Canada.
U.S. and Mexican citizens can also apply for intra-company transferee status in Canada, having been authorized to enter Canada as visitors (R199).
An intra-company transferee must present:
Officers may request tangible proof to establish the relationship between the Canadian and American or Mexican organizations.
Tip: If the applicant has not had full-time work experience with the foreign company, the officer should consider other factors before refusing the applicant solely on this basis, such as the following:
In order to qualify in the intra-company transferee category, a business enterprise “is or will be doing business†in both Canada and the business person’s home country, the U.S. or Mexico.
Note: “Doing business†means regularly, systematically, and continuously providing goods and/ or services by a parent, branch, subsidiary, or affiliate in Canada and the U.S., or Mexico, as the case may be. It does not include the mere presence of an agent or office in Canada or in the U.S. or Mexico. For instance, a company with no employees which exists in name only and is established for the express purpose of facilitating the entry of intra-company transferees would not qualify.
An applicant seeking entry to open a new office on behalf of the American or Mexican enterprise may also qualify, having established that the enterprise in Canada is expected to support a managerial or executive position or, in the case of specialized knowledge, is expected to be doing business. Factors such as the ownership or control of the enterprise, the premises of the enterprise, the investment committed, the organizational structure, the goods or services to be provided and the viability of the American or Mexican operation should be considered.
Intra-company transferees may be authorized to enter Canada for short term assignments and may divide work between Canada and the U.S. or Mexico.
In assessing an application as an intra-company transferee under the NAFTA, the general provisions which deal with intra-company transferees (R205(a), C12) may also be considered .
Affiliate means:
Branch is an operating division or office of the same organization housed in a different location.
Enterprise is "any entity constituted or organized under applicable law, whether or not for profit and whether privately or publicly owned including any corporation trust, partnership, sole proprietorship, joint venture or other association".
Parent means a firm, corporation or other legal entity which has subsidiaries.
Subsidiary refers to a firm, a corporation, or other legal entity of which a parent owns:
“Executive capacity†refers to a position in which the employee primarily:
An executive does not generally perform duties necessary in the production of a product or in the delivery of a service. In smaller businesses, the title of the position may not be sufficient to establish that a position is managerial or executive. For example, an architect who incorporates a business and hires a secretary and a draughtsman is not automatically considered to be holding an executive or managerial position. In order to qualify as a manager or executive as described in the intra-company transferee category, the architect must be engaging in managerial or executive duties rather than purely architectural ones.
“Managerial capacity†refers to a position in which the employee primarily:
A first-line supervisor is not considered to be acting in a managerial capacity unless the employees supervised are professional.
A manager does not primarily perform tasks required in production of a product or in the delivery of a service.
In smaller businesses, the title of the position may not be sufficient to establish that a position is managerial or executive (refer to section 4.5, What is “executive capacity�).
To have specialized knowledge an ICT applicant would be required to demonstrate, on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise.
Proprietary knowledge alone, or advanced expertise alone, does not qualify the applicant under this exemption.
See guidance for officers assessing qualifying job positions for Specialized Knowledge workers under the General Provisions (C12 exemption).
Note: The use of the term “specialized knowledge†applicable to the after-sales service personnel of the business visitor category (Appendix 1603.A.1) differs. For after-sales service, specialized knowledge reflects special training which raises the level of expertise beyond hands-on building and construction work.
Persons who qualify as intra-company transferees are to be issued a work permit pursuant to R204, T24.
A work permit issued at the time of entry can have a maximum duration of three years. However, individuals authorized to enter Canada to open an office or to be employed in a new office should be issued an initial permit for a maximum period of one year.
Extensions can be granted for a duration of up to two years if the person continues to comply with the requirements for intra-company transferees.
The category of intra-company transferees is the only NAFTA category to have a “cap†imposed on the total duration of employment. The total period of stay for a person employed in an executive or managerial capacity may not exceed seven years. The total period of stay for a person employed in a position requiring specialized knowledge may not exceed five years.
Note: For these cases, a minimum period of one year of full-time employment outside Canada must pass after the time cap before applicants are eligible to be issued a new work permit in these categories.
Intra-company transferees are not necessarily required to re-locate to Canada; however, they are expected to actually occupy a position within the Canadian branch of the company. There should be a clear employer-employee relationship with the Canadian company, and the Canadian company should be directing the day-to-day activities of the foreign worker. This is especially important for workers working at client sites and not at the parent, branch, affiliate, or subsidiary.
Alternatively, officers should examine whether the applicant might better be classified as a business visitor, which includes provision of after-sales service. (See Business visitors, section 2 of this Appendix.)
Issuance of short-term work permits for specific projects is permissible, whether the project is taking place at the company premises in Canada or at a client site (generally seen as applicable for persons the company needs to transfer for their specialized knowledge). Long-term work permits in the intra-company transferee category should not be issued for service personnel living outside Canada whom the company wishes to parachute into a client site of the international company on an as-needed basis.
An applicant can be granted trader or investor status, but not both. If an applicant is unsure as to the applicable status or wishes to be considered under both, all sections of the application form must be completed. (Refer to sections 5.2 and 6.2 for information concerning the application form.).
The following requirements apply:
An application should be submitted at a visa office.
The Regulations allow a citizen of the U.S. or Mexico to apply for a work permit either at a POE (R198) or at a visa office. However, due to the complexity of the application and for reasons of client service, program consistency and reciprocity, an application for a work permit for entry as a trader should be submitted at a visa office. Because of reciprocal treatment offered to Canadians, U.S. and Mexican citizens who are granted temporary resident status can also apply for trader status from within Canada (R199).
A person who wishes to submit an application at a POE is to be counselled to submit the application at a visa office. Upon receiving a request for extension, the file from the issuing office should be requested to compare the original information and documentation with that presented in support of the extension request.
Persons applying for trader status must complete an Application for Trader/Investor Status [IMM 5321 (PDF, 161.76 KB)] in addition to the application for a work permit.
The applicant is an American or a Mexican citizen and the employing enterprise to or from which the applicant is coming has American or Mexican nationality.
American or Mexican nationality means that the individual or corporate persons who own at least 50 percent interest in the entity (directly or by stock), must hold American or Mexican citizenship. The place of incorporation of an enterprise is not an indicator of nationality. Nationality is indicated by ownership. A letter attesting to ownership from a corporate secretary or a company lawyer may be used in determining nationality. In cases where an entity’s shares are sold exclusively on a stock exchange of the country of incorporation, nationality can be presumed to the same. In cases of a multinational entity whose shares are exchanged in more than one country, then the applicant should submit evidence that the entity meets the nationality requirement.
A citizen of the U.S. or Mexico who is a permanent resident of Canada does not qualify to bring an employee into Canada under trader status. Similarly, shares of a corporation or other business organization owned by a citizen of the U.S. or Mexico who is a permanent resident of Canada cannot be considered in determining majority ownership to qualify the company for bringing in an employee as a trader.
The applicant may be trading on their own behalf or as an agent of a person or an organization engaged in trade principally between Canada and the U.S. or Mexico.
The applicant is seeking temporary entry to carry on substantial trade in goods or services principally between Canada and the U.S. or Mexico. Over 50 percent of the total volume of international trade conducted by the entity must be between Canada and the U.S. or Mexico. However, the duties of the individual applicant need not be similarly divided.
Trade means the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value, excluding money, securities, and negotiable instruments. Services are economic activities whose outputs are other than tangible goods. Such activities include, but are not limited to international banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting and tourism.
“Substantial trade†is determined by the volume of trade conducted as well as the monetary value of the transactions. Numerous transactions, although each may be small in value, might establish the requisite continuing course of international trade. Officers must be satisfied that the business person’s predominant activity in Canada is international trading.
Trade between the U.S. or Mexico and Canada must already be in existence as evidenced by completed sales or binding contracts that call for the immediate exchange of goods or services. An applicant cannot qualify as a Trader for the purpose of searching for a trading relationship.
The applicant’s job duties in Canada will be employed in a capacity that is supervisory, or executive or involves essential skills.
The supervisory or executive element of the position must be a principal function of the duties while working in Canada. A supervisor is a manager who is primarily responsible for directing, controlling and guiding subordinate employees and who does not routinely engage in hands-on activities. Note that a first line supervisor would not generally meet these requirements. An executive is in a primary position in the organization with significant policy authority.
Indicators of supervisory or executive capacity are:
The size of the entity will dictate which indicators are more significant.
Essential skills or services are special qualifications that are vital to the effectiveness of the firm’s Canadian operations. In general, essential skills are possessed by specialists, not ordinary skilled workers. The essential employee is not required to have been previously employed by the American or Mexican enterprise unless the skills required can only be obtained through working for that enterprise.
In assessing essential skills, officers must be satisfied, based upon a consideration of the following factors, that trader status is warranted:
A highly trained technician may sometimes qualify as having essential skills. A highly trained or specially qualified technician employed by a firm to train or to supervise personnel employed in manufacturing, maintenance and repair functions may be granted trader status even though some manual duties may be performed, provided that the firm cannot obtain the services of a qualified Canadian technician. For example, a qualified technician coming to perform warranty repairs on intricate and complex products sold in trade between Canada and the U.S. or Mexico can be granted trader status if the Canadian entity establishes that it cannot obtain the services of a qualified Canadian technician. It is expected that the firm in Canada will, within a reasonable period of time, locate and train a Canadian as a highly skilled technician. The absence of an effective training program for a Canadian is sufficient reason to refuse repeated requests for an American or a Mexican highly trained technician to occupy a position not requiring essential skills.
Persons qualifying in the Trader category may be issued a work permit pursuant to R204; T21 should be used.
An applicant’s expression of a definite intention to return to the U.S. or Mexico when trader status terminates will normally be accepted as sufficient evidence of temporary intent, unless there are indications to the contrary.
Trader status would end upon the applicant taking another job, engaging in an activity which is not consistent with this status, closing down the business, etc.
The following requirements apply:
An application should be submitted at a visa office.
The Regulations allow a citizen of the U.S. to apply for a work permit either at a POE (R198) or at a visa office. However, due to the complexity of the application and for reasons of client service, program consistency and reciprocity, an application for a work permit as an investor should be submitted at a visa office. Because of reciprocal treatment for Canadians, U.S. and Mexican citizens who are granted temporary resident status can also apply for investor status from within Canada (R199).
A person who wishes to submit an application at a POE is to be counselled to submit the application at a visa office. Upon receiving a request for extension, the file from the issuing office should be requested to compare the original information and documentation with that presented in support of the extension request.
Persons applying for investor status must complete an Application for Trader/Investor status [IMM 5321 (PDF, 161.76 KB)] in addition to the application for an employment authorization.
Note: American or Mexican nationality means that the individual or corporate persons who own at least 50 percent interest (directly or by stock) in the entity established in Canada must hold American or Mexican citizenship. Joint ventures and partnerships are limited to two parties.
In parent-subsidiary situations, officers should consider the nationality of the corporate entity established in Canada.
A letter attesting to ownership from a corporate secretary or a company lawyer may be used in determining nationality.
The place of incorporation of an enterprise is not an indicator of nationality. Nationality is indicated by ownership.
Note: This criterion does not apply to an employee of an investor
“Develop and direct“ means that the applicant should have controlling interest in the enterprise. An interest of 50 per cent or less usually will mean that the applicant does not have requisite control, particularly in smaller enterprises. An equal share of the investment, such as an equal partnership, generally does not give controlling investment in Canadian-based corporations.
However, in cases of American and Mexican corporate investment in Canadian-based corporations, the focus should be less on an arithmetical formula and more on corporate practice, since control of half or less of the stock sometimes gives effective control. A joint venture may also meet the "develop and direct" requirement, provided that the American or Mexican corporation can demonstrate that it has, in effect, operational control.
Investment involves placing funds or other capital assets at risk in the commercial sense in the hope of generating a profit or a return on the funds risked. If the funds are not subject to partial or total loss if investment fortunes reverse, then it is not an investment which can be used to support investor status. (Investor status could not, therefore, be extended to non-profit organizations).
If the applicant is in the process of investing, mere intent to invest or prospective investment arrangements entailing no present commitment will not suffice. The applicant must be close to the start of actual business operations, not merely in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. The investment funds must be irrevocably committed to the business.
Whether an investment has been, or will be made, the applicant must demonstrate prior or present possession and control of the funds or other capital assets.
Officers should assess the nature of the transaction to determine whether a particular financial arrangement may be considered an investment for the purpose of investor status. Following are some factors which may be considered in making a determination:
There is no minimum dollar figure established for meeting the requirement of “substantial†investment. Substantiality is normally determined by using a “proportionality test†in which the amount invested is weighed against one of the following factors:
Only the amount already invested or irrevocably committed for investment can be considered in determining substantiality.
The investment must be significantly proportional to the total investment. The total investment is the cost of an established business or money needed to establish a business. In businesses requiring smaller amounts of total investment, the investor must contribute a very high percentage of the total investment, whereas in businesses of larger total investment, the percentage of the investment may be much less. In applying the test, officers must first focus on the nature of the business to determine reasonably the total amount of investment needed to establish such business.
Clearly, the total amount of money needed to start a consulting service will be much less than to open an automobile manufacturing plant or even a restaurant. In the case of a consulting firm, it might be found that a total of $50,000 investment is necessary to become fully operational. In order to qualify as an investor, an applicant would have to invest a high percentage of the $50,000. For a total investment of $1 million, the investor might reasonably have to invest at least $500,000 to $600,000; whereas for a $10 million manufacturing plant, $2-3 million might suffice, based on the sheer magnitude of the dollar amount invested. (These examples are not intended to establish any set dollar figures, but are used only to demonstrate by example the application of the proportionality test.)
The enterprise must be a real and active commercial or entrepreneurial undertaking which operates to produce some service or commodity for profit. It cannot be a paper organization or an idle, speculative investment held for potential appreciation in value. For instance, passive investment in developed or undeveloped real estate or stocks does not qualify. (Evidence that an applicant intends and has the ability to invest additional funds in the future in an enterprise may demonstrate that the business is, or will be, a viable commercial enterprise. A plan for future investment, expansion, and/or development is significant in meeting this criterion.)
The objective of investor status is to promote productive investment in Canada. Therefore, an applicant is not entitled to this status if the investment, even if substantial, will return only enough income to provide a living for the applicant and family.
There are various ways to assist in determining whether an enterprise is marginal, in the sense of only providing a livelihood for the applicant. For instance, an applicant may show that the investment will expand job opportunities locally or that it is adequate to ensure that the applicant’s primary function will not be that of a skilled or unskilled labourer. If the applicant has substantial income from other sources and does not rely on the investment enterprise to provide a living, the investment may be one of risk and not one of providing a mere livelihood. Therefore, the investment would not be in the marginal category.
To bring an employee to Canada in investor status, the nationality requirement must be met:
A citizen of the U.S. or Mexico who is a permanent resident of Canada does not qualify to bring an employee into Canada under investor status.
Shares of a corporation or other business organization owned by a citizen of the U.S. or Mexico who is a permanent resident of Canada cannot be considered in determining majority ownership to qualify the company for bringing in an employee as an investor.
The applicant must be an American or Mexican citizen who qualifies in a supervisory or executive capacity or possesses skills essential to the firm’s operations in Canada.
The supervisory or executive element of the position is a primary function. The supervisor is primarily responsible for directing, controlling and guiding subordinate employees and does not routinely engage in hands-on activities. (A first line supervisor would not, as a general rule, qualify). An executive or manager is in a position in the organization with significant policy authority.
Indicators of supervisory or executive or managerial capacity are:
The size of the Canadian office will dictate which indicators are more relevant.
Essential skills or services are special qualifications that are vital to the effectiveness of the firm’s Canadian operations over and above qualifications required of an ordinary skilled worker.
An employee with essential skills is not required to have previously worked for the enterprise unless the skills required could only be acquired by working for the enterprise.
Officers must be satisfied that, based upon a consideration of the following factors, investor status is warranted:
There are two exceptions to the application of the factors concerning essential skills:
New enterprises
The absence of an effective training program for a Canadian is sufficient reason to refuse repeated requests for an American or a Mexican worker to occupy a position requiring high technical skills.
Persons qualifying in the Investor category may be issued a work permit pursuant to R204, T22.
A work permit issued at the time of entry can have a maximum duration of one year.
Extensions should be granted for a duration of two years provided that the requirements outlined above are met.
An applicant’s expression of a definite intention to return to the U.S. or Mexico when investor status terminates will normally be accepted as sufficient evidence of temporary intent unless there are indications to the contrary.
Investor status would end upon applicant taking another job, engaging in an activity which is not consistent with this status, closing down the business, etc.
The immigration provisions of the NAFTA are of particular interest to Canadian, American and Mexican teachers who have been offered temporary appointments at the university, college, and seminary levels. The following is intended to provide information concerning the application of the temporary entry chapter of the NAFTA for university, college and seminary teachers.
No. The new provisions enhance or expand the general or universal provisions which exist in each country. Thus, for American and Mexican teachers coming to Canada, the NAFTA augments the existing provisions respecting exchange professors, guest lecturers and visiting professors. (See Annex 1 for details of general provisions.)
Canadian, American and Mexican teachers can now obtain a document authorizing employment to undertake a temporary appointment at a university, college, or seminary in one of the other countries simply by presenting at the POE a letter from the employer describing the temporary appointment.
Note: Appendix 1603.D.1 of the NAFTA lists those professions whose members are eligible for facilitated entry to the other countries. Only those activities which are generally understood to be associated with the performance of a profession may be undertaken by a person seeking to enter or to remain in Canada temporarily to practice the profession.
Thus, a person entering to be employed temporarily as a university teacher can carry out the range of duties normally associated with that position.
Yes. Persons who are not citizens but have immigration status as a legal permanent resident of the other countries do not have access to facilitated entry under the NAFTA. They do, however, continue to have access to each country through existing general or universal provisions governing the entry of temporary foreign workers.
No. The immigration chapter of the NAFTA covers temporary entry only.
The NAFTA defines “temporary entry†as “...entry without the intent to establish permanent residence.†This definition is consistent with immigration law. It is adaptable to individual circumstances and it recognizes that the concept of temporary entry cannot be based simply on a specific time limitation.
The definition does not allow for open-ended temporary entry. The provisions of the NAFTA cannot be used as a mechanism to circumvent procedures applicable to permanent employment nor as a means to establish de facto permanent residence.
Upon arrival at a POE, a work permit may be granted for the length of the contract up to a maximum of twelve months. If the appointment is for a period greater than twelve months, a renewal of the work permit must later be requested and obtained. (A person who is in possession of a valid work permit is eligible to apply for a renewed work permit, and should apply at least one month before the expiry of the work permit. An application can be downloaded from CIC’s website or from the Call Centre.
Multiple renewals will not be approved routinely even though a lengthy appointment might have been indicated at the time of arrival in Canada. The longer the duration of temporary stay, the greater the onus will be on the individual, especially when requesting an extension of status, to satisfy an officer of temporary intent.
Yes. Many temporary foreign workers in general are authorized to work temporarily in a permanent position that, for one reason or Yes. Many temporary foreign workers in general are authorized to work temporarily in a permanent position that, for one reason or
The procedures which apply to permanent employment are unaffected by the NAFTA. The advertising procedure required as part of the LMIA process continues for permanent appointments.
On the other hand, the NAFTA prohibits, as a condition for temporary entry, “...prior approval procedures, petitions, labour certification tests, or other procedures of similar effect.†Service Canada labour certification is, therefore, prohibited for a temporary appointment. A hiring (advertising) process which is independent of a labour certification test or other procedure of similar effectFootnote* is permissible for a temporary appointment under the NAFTA.
A university can institute a “Canadians-firstâ€Footnote** hiring policy and not be in conflict with provisions of Chapter 16 or any other provisions of the NAFTA. The university would simply be exerting its prerogative as an employer.
Should a decision be made, though, to offer a temporary appointment to a teacher who is a U.S. or Mexican citizen, then that person’s entry to Canada and authorization to work will be facilitated through the provisions of Chapter 16 of the NAFTA.
Return to footnote* A “procedure of similar effect†is an administrative or legal requirement which may have the consequence of delaying or preventing a person covered by Chapter 16 from engaging, or continuing to engage, in a covered profession, occupation, or activity. It does not include the immigration procedures established by Canada, the U.S. or Mexico: 1) to implement the provisions of Chapter 16 of the NAFTA, 2) to ensure compliance with general entry requirements relating to public health, safety, and national security.
Return to footnote** The term “Canadians-first†refers to citizens and permanent residents of Canada.
The university must offer the person permanent/indeterminate employment. The applicant can then apply for permanent residence, and benefit from receiving points for ‘arranged employment’. If they qualify as a skilled worker permanent resident, then a permanent residence visa will be issued.
Teachers require work permits to teach temporarily in Canada at a university, college or seminary. An American or Mexican citizen can apply for a work permit at a Canadian POE and must provide the following documentation:
Applicants must, as well, be able to satisfy an immigration officer of general compliance with the requirements of the Immigration and Refugee Protection Act and Regulations, e.g., be in good health and have no criminal record.
Note: There is a processing fee for a work permit.
As mentioned earlier, one of the fundamental principles of the immigration chapter of the NAFTA is reciprocity. While the procedures at a U.S. or Mexican POE may not be exactly the same as ours, Canadians will be subject to exactly the same criteria for facilitated temporary entry under the NAFTA. Canadians should contact a U.S. POE or consulate or Mexican consulate for full details.
The NAFTA contains no provisions for a person to appeal a decision refusing entry because of non- compliance with entry requirements. In the event of a refusal to grant entry, officers will provide reasons for the refusal.
Yes. The immigration chapter of the NAFTA provides for a consultation procedure involving the participation of immigration officials of Canada, the U.S. and Mexico. In practice these officials meet regularly to harmonize their respective NAFTA procedures and to resolve problems relating to the on-going implementation of the chapter.
Persons who are engaged by post-secondary educational institutions (e.g., universities, community colleges and similar institutions) as:
The duties of a university teacher include:
Teachers at this level usually specialize in one subject, or two or more related subjects.
Complete the Job Description form, and submit to our professional staff, you will be contacted within 2 business days by our company with a solution.
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
Like the North American Free Trade Agreement (NAFTA), the temporary entry of business persons under the General Agreement on Trade in Services (GATS) can be facilitated without the need for a Labour Market Impact Assessment. In the area of temporary entry of individuals, Canada requested and offered access for three categories of business persons: business visitors, intra-company transferees and professionals.
Both business visitors and intra-company transferees entering under GATS qualify under Canada’s generally applicable immigration rules: R186(a) and R205(a) C12. However, there are unique rules for the entry of professionals under GATS. These professionals may be granted work permits pursuant to R204, T33 if they meet the criteria outlined below.
A GATS Professional is a person who seeks to engage, as part of a services contract obtained by a company in another Member nation, in an activity at a professional level in a profession set out below, provided that the person possesses the necessary academic credentials and professional qualifications, which have been duly recognized, where appropriate, by the professional association in Canada. The Professionals category is designed to facilitate the short-term entry of a limited list of professionals employed by service providers of Member nations, in those service sectors to which Canada has made commitments.
Group 1 includes six occupations: Engineers, Agrologists, Architects, Forestry professionals, Geomatics professionals and Land surveyors.
Group 2 includes three occupations: Foreign legal consultants, Urban planners and Senior computer specialists. Professionals in this group are subject to additional requirements pertaining to the prospective enterprise in Canada and the foreign service provider. As well, limits exist for the number of persons allowed entry under specific projects.
Gats professional occupations, together with minimum educational requirements, alternative credentials and other licensing requirements
Gats professional occupations, together with minimum educational requirements, alternative credentials and other licensing requirements
Engineer
Minimum educational requirement alternative credentials:
Baccalaureate degreeFootnote*
Other requirements:
Provincial licenceFootnote**
Agrologists
Minimum educational requirement alternative credentials:
Baccalaureate degree in agriculture or related science plus four years of related experience
Other requirements:
Licensing required in New Brunswick, Alberta & Quebec. Temporary licensing required in British Columbia.
Architects
Minimum educational requirement alternative credentials:
Baccalaureate degree in architecture
Other requirements:
Provincial licence and certificate required to practice
Forestry Professionals
Minimum educational requirement alternative credentials: Baccalaureate degree in forestry management or forestry engineering, or a provincial licence
Other requirements:
Licensing as a forester or forestry engineer is required in Alberta, British Columbia & Quebec.
Geomatics ProfessionalsFootnote***
Minimum educational requirement alternative credentials: Baccalaureate degree in surveying, geography or environmental sciences plus three years related experience.
Land Surveyors
Minimum educational requirement alternative credentials:Baccalaureate degree
Other requirements:
Provincial licence
Foreign Legal Consultants
Minimum educational requirement alternative credentials:Baccalaureate degree in law
Other requirements:
Provincial licence
Foreign Legal Consultants
Minimum educational requirement alternative credentials:Baccalaureate degree in law
Other requirements:
Provincial licence
Urban Planners
Minimum educational requirement alternative credentials:Baccalaureate degree in urban planning
Other requirements:
Provincial licence
Senior Computer Specialists
Minimum educational requirement alternative credentials: Graduate degreeFootnote**** in computer sciences or related discipline and ten years of experience in computer sciences.
Footnote *
Baccalaureate means a degree from an accredited academic institution in Canada or equivalent.
Return to footnote*referrer
Footnote **
Provincial licence means any document issued by a provincial/territorial government or under its authority which permits a person to engage in a regulated activity or profession.
Return to footnote**referrer
Footnote ***
Geomatics Professionals must be working in aerial surveying or aerial photography.
Return to footnote***referrer
Footnote ****
Graduate degree means at least a Master’s degree from an accredited academic institution in Canada or equivalent. Academic equivalencies will be determined by the relevant equivalency services in Canada.
Return to footnote****referrer
The time limit imposed is a maximum three months or 90 consecutive days within a twelve month period.
The applicant must be seeking entry pursuant to a signed contract between the foreign service provider and a Canadian service consumer, and must work in one of the service sectors listed above.
Applicants must have their academic credentials and professional qualifications recognized by the professional association in Canada before entry can be granted and must have been granted a licence (where applicable). See paragraph on credential and licensing requirements below.
Applicants must have their academic credentials and professional qualifications recognized by the professional association in Canada before entry can be granted and must have been granted a licence (where applicable). See paragraph on credential and licensing requirements below.
Secondary employment is not permitted (prohibition on working for an employer who is not named on the authorization) and extension of the employment authorization as a GATS professional beyond the 90 days is not permitted.
The applicant must meet the following criteria:
Where the contract is between a Canadian company and a foreign personnel placement or personnel supply agency to supply the Professional, entry may not be granted pursuant to the GATS, even where the occupation is listed in the professional category.
The Professional may or may not be remunerated in Canada.
The Professional’s foreign-based employer must have been established for a reasonable period of time and be actively “doing businessâ€. (See section 4.3 of Appendix G, intra-company transferees, for a definition.)
In the case of Legal Consultants, Urban Planners and Senior Computer Specialists, our GATS commitments further specify that the Canadian company party to the contract must not be a personnel placement or personnel supply agency.
The fact that the employer in Canada must be engaged in substantive business is interpreted to mean that the enterprise is not a shell or established merely for the purpose of facilitating the entry of foreign workers. Officers will have to rely on information provided by the applicant and supported by documents from the employer in Canada.
The requirement that the foreign service provider not have a commercial presence in Canada can only be established by relying on information provided by the applicant. Officers should confirm that the professional is not seeking entry to provide services to their company or employer, which has established itself in Canada simply to facilitate the entry of its own employees.
As there is no central body responsible for regulating computer specialties, the entry of Senior Computer Specialist is restricted to individuals with a Masters Degree in a related discipline, as well as documented ten years experience in that field. The criteria was introduced as a control measure to ensure that only highly qualified experienced computer specialists are permitted entry under the GATS professional category.
The limit of ten entrants per project imposed on Senior Computer Specialists can be verified by relying on information provided by the foreign service provider or the service consumer in Canada.
In processing applications from Professionals, it is essential that officers refer to the chart in order to understand what credentials are required for each occupation and which provinces issue licences for the practice of those occupations.
If a licence to practice in Canada is required, officers cannot issue a work permit unless the applicant has obtained, prior to arrival in Canada, a temporary or permanent licence from the appropriate province.
If the applicant presents a provincial licence, it is not necessary for officers to examine the documentation from a professional association or the applicant’s professional qualifications as the province has already done that, except in the case of Foreign Legal Consultants, Urban Planners and Senior Computer Specialists where the foreign-based employer cannot be established in Canada.
If no licence is required to practice in Canada, officers cannot issue a work permit unless the applicant can produce documentation from an appropriate professional association in Canada, indicating that their academic credentials and professional qualifications have been recognized.
If the applicant presents such documentation from the appropriate professional association in Canada, it is not necessary for officers to examine the applicant’s educational credentials as the professional association has already done that.
The work permit should be coded using Exemption Code T33.
Applications for work permits may be made at a visa office or at a POE (for applicants who do not require a temporary resident visa).
There is a firm time limit on the entry of GATS Professionals. They should be granted status for the period required to complete the work, up to a maximum of three months. Extensions must not be granted beyond three months.
Complete the Job Description form, and submit to our professional staff, you will be contacted within 2 business days by our company with a solution.
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