The Canada-Korea Free Trade Agreement

On September 22, 2014, Canadian Prime Minister Stephen Harper and South Korean President Park Geun-hye signed the Canada-Korea Free Trade Agreement (“CKFTA“).  Chapter 12 of the CKFTA provides for the facilitation of the temporary entry of business persons.  The CKFTA Final Agreement Summary notes that South Korea’s commitments are the most ambitious the country has ever negotiated in a free trade agreement.  For Canada, the CKFTA’s temporary entry provisions are pretty similar to those contained in the North American Free Trade Agreement (“NAFTA“), although there are differences.

The CKFTA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under the CKFTA do not require Labour Market Impact Assessments (“LMIA“).  Indeed, as the CKFTA Final Agreement Summary states:

When it comes to investing and providing services, there is no substitute for being on-site, where clients are located. Investors want to witness their investments, talk to their partners and get a feel for the local environment. Professionals, including architects, management consultants and engineers, need to contact clients on-site in order to fulfil contracts in the South Korean market.

Temporary-entry provisions in the Canada-Korea Free Trade Agreement address barriers that business persons face at the border, particularly by eliminating the need to obtain a labour market opinion and/or economic needs test. The Agreement will establish new preferential access to our respective markets and facilitate greater transparency and predictability for the movement of business persons between Canada and South Korea. The Agreement’s temporary-entry provisions complement commitments taken in the area of services, investment, goods and government procurement.

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA, and the same is now true for Koreans.

 

PM Harper visits the Republic of Korea to announce a historic Free Trade Agreement
PM Harper visits the Republic of Korea to announce a historic Free Trade Agreement

The CKFTA has taken effect, and Citizenship and Immigration Canada has produced guidelines to officers on its implementation here.

Business Visitors

In addition to the general Business Visitor provisions under Canadian immigration legislation, the following constitutes the list of acceptable activities for business visitors under the CKFTA:

Research and Design:

  • Technical, scientific and statistical researchers conducting independent research or research for an enterprise located in Canada.

Growth, Manufacture, and Production:

  • Purchasing and production management personnel conducting commercial transactions for an enterprise located in Canada.

Marketing:

  • Market researchers and analysts conducting independent research or analysis or research or analysis for an enterprise located in Canada.
  • Trade-fair and promotional personnel attending a trade convention.

Sales

  • Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in Canada but not delivering goods or providing services.
  • Buyers purchasing for an enterprise located in Canada.

Distribution

  • Transportation operators transporting goods or passengers to Canada from Korea or loading and transporting goods or passengers from Korea, with no unloading in that territory, to the territory of the other Party;

After-Sales or After-Lease 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 or lease of commercial or industrial equipment or machinery, including computer software, purchased or leased from an enterprise located outside the territory of the Party into which temporary entry is sought, during the life of the warranty or service agreement.

Traders and Investors

Chapter 12 of the CKFTA provides that Canada shall grant temporary entry and provide a work permit to business persons seeking to (a) carry on substantial trade in goods or services principally between Canada and Korea or (b) establish, develop, administer or provide advice on key technical services to the operation of an investment to which the business person or the business person’s enterprise has committed, or is in the process of committing, a substantial amount of capital.

The business person must be entering Canada to work in a capacity that is supervisory, executive, or involves essential skills.

Intra-Company Transferees

Chapter 12 of the CKFTA provides that:

Each Party shall grant temporary entry and provide a work permit or visa to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or an affiliate or a branch thereof as an executive or manager, a specialist or a management trainee on professional development, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission.

The CKFTA differs from NAFTA in that companies may also transfer “management trainees on professional development” (“Management Trainees“).  A Management Trainee is defined as an employee who has a Bachelor or Baccalaureate degree or who has a license at a professional level concerning the intra-company activity, who is on a temporary work assignment intended to broaden an employee’s knowledge, or an experience in a company, in preparation of a senior leadership position within the company.

Professionals

Chapter 12 of the CKFTA provides that:

Each Party shall grant temporary entry and provide a work permit or visa to a business person who is a professional seeking to engage in a business activity at a professional level, in a profession set out in Appendix 12-A-2, if the business person otherwise complies with existing immigration measures applicable to temporary entry, on presentation of:

(a) proof of citizenship or permanent resident status of the other Party; and

(b) documentation demonstrating that the business person is seeking to enter to provide pre-arranged professional services, either as a contractual service supplier, or as an independent professional, in the field for which the business person has the appropriate qualifications.

Unlike NAFTA, the CKFTA does not permit either Canada or South Korea to establish numerical limits on the number of professionals that may enter.

Appendix 12-A-2 of the CKFTA provides that the eligible professions and their educational requirements are:

Independent Professionals:

Profession Canadian Requirements
Architect* Bachelor degree; or provincial license
Engineer Bachelor degree; or provincial license
Management Consultant Bachelor degree***
Veterinarian Doctorate of Veterinary Medicine; or provincial license

Contract Service Suppliers:

Profession Canadian Requirements
Accountant Bachelor degree; or Chartered Professional Accountant (CPA), Chartered Accountant (CA), Certified General Accountant (CGA), or Certified Management Accountant (CMA)
Actuary Bachelor degree and membership in a professional actuarial association
Agrologist Bachelor degree
Architect* Bachelor degree; or provincial license
Landscape Architect Bachelor degree
Apiculturalist Bachelor degree
Auditor Bachelor degree; or CPA, CA, CGA or CMA
BiologistThis category would include the following:

  1. Botanist
  2. Biologist
  3. Ecologist
  4. Embryologist
  5. Toxicologist
  6. Enzymologist
  7. Etiologist
  8. Bacteriologist
  9. Geneticist
  10. Histologist
  11. Helminthologist
  12. Human Physiologist
  13. Pathologist
  14. Immunologist
  15. Mycologist
  16. Naturalist
  17. Physiologist
  18. Virologist
  19. Serologist
  20. Plant Pathologist
  21. Crop Scientist
  22. Anatomist
  23. Bryologist
  24. Cytochemist
  25. Ecobiologist
  26. Echthyologist
  27. Nematologist
  28. Osteologist
  29. Entomologist
  30. Epidemiologist
  31. Biochemist
  32. Plant Breeder
  33. Animal Breeder
  34. Poultry Scientist
  35. Soil Scientist
  36. Food Scientist
  37. Animal Scientist
  38. Zoologist
  39. Dairy Scientist
Bachelor degree
Chemist Bachelor degree
Engineer Bachelor degree; or provincial license
Forester Bachelor degree
GeoscientistThis category would include the following:

  1. Palaeontologist
  2. Petrologist
  3. Sedimentologist
  4. Seismologist
  5. Strategrapher
  6. Glaciologist
  7. Hydrogeologist
  8. Hydrologist
  9. Mineralogist
  10. Oceanographer
  11. Petrophysicist
  12. Quaternarist
  13. Volcanologist
  14. Metallurgist
Bachelor degree
Horticulturalist Bachelor degree
Management Consultant Bachelor degree***
Meteorologist Bachelor degree
Physical ScientistThis category would include the following:

  1. Physicist
  2. Astronomer
  3. Aerodynamicist
  4. Cosmologist
  5. Research Scientist
  6. Radiation Biophysicist
  7. Rheologist
Post-graduate degree
Sylviculturalist Bachelor degree
Urban and Land Use Planner Bachelor degree***
Veterinarian Doctorate of Veterinary Medicine; or professional license
Information System Analyst Database Analyst and Data Administrator Bachelor degree in computer sciences or a related discipline and two years of experience in computer science;Bachelor degree and five years of experience in the field of computer science and information systems; orA Canadian I.S.P. designation (Information Systems Professional of Canada) or a license or designation from a recognised foreign certification body
Computer Programmer and Interactive Media Developer Bachelor degree in computer science or a related discipline and two years of experience in computer science;Bachelor degree and five years of experience in the field of computer science and information systems; orA Canadian I.S.P. designation (Information Systems Professional of Canada) or a license or designation from a recognised foreign certification body
Software Engineer and Designer Bachelor degree in computer sciences or a related discipline and two years of experience in computer science;Bachelor degree and five years of experience in the field of computer science and information systems; orA Canadian I.S.P. designation (Information Systems Professional of Canada) or a license or designation from a recognised foreign certification body

From a public policy perspective it is interesting to note that Korea has more strict requirements for professionals entering in the computer industry. For example, for Information System Analyst and Database Analysts, Canada requires only two years of professional experience for individuals with Computer Science degrees, while Korea requires seven.  For individuals with general degrees, Canada requires five years experience in the field of computer science and information systems, while Korea requires nine.  This trend repeats itself throughout the industry.

It is important to note that unlike in NAFTA, the CKFTA list of professionals does not include Hotel Managers, Industrial Designers, Graphic Designers, Land Surveyors, Lawyers, Librarians, Mathematicians, Economics, Research Assistants, Scientific Technicians, Social Workers, and Vocational Planners.


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