Work Permits Under The North American Free Trade Agreement / CUSMA

(the following is largely paraphrased from the IRCC website)

The North American Free Trade Agreement (“NAFTA“) is a free trade agreement between Canada, the United States and Mexico.  It facilities the temporary entry of individuals, including providing certain Americans and Mexicans with the ability to work in Canada without first requiring Labour Market Impact Assessments (“LMIAs“).

NAFTA does not assist permanent admission, does not apply to permanent residents of the United States and Mexico and does not remove the need for Americans and Mexicans to undergo security screening before entering Canada.

The categories are:

• Business Visitors;
• After – Sales Services;
• Investors;
• Intra-Corporate Transferees; and
• Professionals.

Business Visitors

To qualify as a business visitor, an American or Mexican citizen must be entering Canada to conduct activities that are international in scope, have no intention to enter the Canadian labour market, have their primary source of remuneration be outside of Canada and their principal place of business remain outside of Canada.

For example, 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.  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.

Marketing includes trade fair and promotional personnel attending a trade convention.

Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the U.S. or Mexico qualify for entry as Business Visitors, however, they cannot deliver goods or providing services.  The seller may only take orders for the goods or enter into contracts for the services.  Sales representatives and agents also cannot sell Canadian-made goods or services provided by a Canadian.

After-Sales Service

After-sales service includes the installation, or repair, or servicing of commercial or industrial equipment or machinery, or computer software.

To qualify to enter Canada to perform after-sales service, an American or Mexican citizen must be entering Canada to install, repair, service (or supervise the installation, repair or service) of equipment or machinery that is commercial or industrial, where such equipment or machinery was manufactured and purchased outside of Canada, pursuant to an original sales contract and any warranty or service incidental to the sale. The work must be carried out during the validity of any warranty or service agreement and require specialized knowledge.

Persons whose activities or services in Canada would constitute hands-on building and construction work may not enter to provide after-sales service.

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 end-user may not be equipped to provide installation or warranty service and relies on the enterprise established in the U.S. or Mexico to provide such services.

Equipment or machinery leased or rented from an enterprise outside of Canada is not covered under the after-sales service provision.

Intra-CompanyTransferees

Intra-company transferees (“ICTs“) 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.

Specifically, the following requirements apply:

• citizenship of the U.S. or Mexico;
• seeking employment in an executive or managerial capacity or one involving “specialized knowledge”;
• transferring to an enterprise that has a qualifying relationship with the enterprise in which he or she is currently employed;
  enterprises in the U.S. or Mexico and in Canada have a parent, branch, subsidiary or affiliate relationship;
• continuous employment, in a similar position outside Canada, for at least one year (full-time) in the previous three-year period from the date of initial application; and
• compliance with existing immigration requirements for temporary entry.

If someone has not had full-time work experience with the foreign company, officers can consider the number of years of work experience, the similarity of positions, the extent of the part-time provisions, and whether the transfer appears to be an abuse, before refusing the work permit.

“Executive capacity” refers to a position in which the employee primarily:

• directs the management of the organization or a major component or function of the organization;
• establishes the goals and policies of the organization, component, or function;
• exercises wide latitude in discretionary decision-making; and
• receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

“Managerial capacity” refers to a position in which the employee primarily:

• manages the organization, or a department, subdivision, function, or component of the organization;
• supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
• has the authority to hire and fire or recommend those, as well as other, personnel actions (such as promotion and leave authorization); if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and
• exercises discretion over the day-to-day operations of the activity or function for which the employee has the authority.

Finally, to have specialized knowledge, an individual would be required to demonstrate, on a balance of probabilities, a high degree of both proprietary knowledge and advanced expertise.  Unlike with general Intra-Company Transferees, there is no mandatory wage floor in NAFTA.

Professionals and Technicians

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. Professionals are not subject to an LMIA but require a work permit.

NAFTA provides entry to over 60 professional occupations.  The list is a complete list and cannot be interpreted.  However, where duties are interchangeable alternative job titles may be accepted.  A professional must be entering Canada to provide professional level services in the field of qualification.  In other words, the duties of the profession that the business person intends to practice in Canada must conform to the job duties of the profession.  As well, a professional entering Canada to be a corporate executive must be coming to work in their field of qualification, or the details of the position requirements and job duties of a specific profession are integral to the job.

The Professionals category does not allow self-employment in Canada (i.e., “hanging-out a shingle” to solicit business in the Canadian labour market).  However, it is possible for a professional to be working in Canada on more than one contract at a time.

In instances where a baccalaureate degree is required, the degree must be in the specific field or in a closely related field.

Initial work permits can be granted for durations of up to three years.

Extensions can also be issued in increments of up to three years with no limit on the number of extensions providing the individual continues to comply with the requirements for professionals.

The full list of occupations and the minimum credentials are: