International Mobility Program: Canada-United States-Mexico Agreement (CUSMA)

1 Introduction

1.1 Purpose of this section

This page contains information on the temporary entry provisions of the Canada-United States-Mexico Agreement (CUSMA).

The text of the actual agreement is found in Chapter 16.

1.2 Policy intent

The CUSMA 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 CUSMA, entitled “Temporary Entry for Business Persons”, 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 CUSMA 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 CUSMA, as well as the general provisions which apply to all foreign workers.

1.3 Background

The CUSMA reflects a preferential trading relationship initiated among Canada, the U.S. and Mexico.

Chapter 16 of the CUSMA 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 CUSMA, 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 CUSMA and the provision of statistical information. Given the growing public image of the CUSMA and the importance of sharing information with our CUSMA partners, it is crucial that data entered 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, meet periodically to oversee the implementation and administration of Chapter 16 of the CUSMA. The Director of Temporary Resident Policy and Programs (SST), 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.

1.4 What CUSMA does

• CUSMA facilitates temporary entry for business persons who are citizens of the U.S., Mexico and Canada and who are involved in the trade of goods or services, or in investment activities.
• CUSMA removes any need for a Labour Market Impact Assessment (LMIA) for all business persons covered by the Agreement.
• In the case of a business visitor, it ensures that there is no requirement for a work permit.
• For professionals that are TRV exempt it expedites the application process by ensuring an application can be made at the port of entry (POE). Foreign nationals that require a temporary resident visa to enter Canada are still required to apply at a visa office prior to coming to Canada.

1.5 What CUSMA does not do

• CUSMA does not assist permanent admission.
• It does not apply to permanent residents of the three countries.
• It does not replace the general provisions dealing with foreign workers.
• It has no effect on universal requirements related to passports and identity documentation, medical examinations and safety and security.
• It does not replace the need for workers to meet licensing or certification requirements respecting the exercise of a profession.
• It does not extend special privileges to spouses and members of the family. Their entry is governed by the provisions of the Immigration and Refugee Protection Act and the Regulations.

1.6 Who is covered by CUSMA?

The temporary entry provisions of Chapter 16 of the CUSMA are restricted to:

• citizens of the U.S., Mexico and Canada
  • including U.S., citizens of the District of Columbia and Puerto Rico.

The temporary provisions of the CUSMA does not apply to:

• citizens of Guam, the Northern Mariana Islands, American Samoa and the U.S. Virgin Islands; and
• Permanent residents of the three countries.

The temporary entry of those not covered by the CUSMA are, covered by the general provisions governing the temporary entry of foreign workers.

1.7 Regulatory authority

The temporary entry provisions of the CUSMA are to be used in conjunction with 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 CUSMA is slightly more restrictive and requires a sale; however, there are instances of covered activities where the CUSMA is more narrowly-applied.

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.

1.8 Categories of business persons included under the CUSMA

Business persons included in Chapter 16 of the CUSMA are grouped under four categories:

1. business visitors;
2. professionals;
3. intra-company transferees;
4. traders and investors.

1. 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 1, Section B of CUSMA).

   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.

2. 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 2 of CUSMA lists 63 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).

3. 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).

4. 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.

1.9 Admission decisions

In assessing applications by citizens of the U.S. or Mexico, all admissibility considerations under the IRPA and eligibility under the CUSMA for temporary entry should be considered. An American or Mexican citizen who is not eligible for entry under the CUSMA may qualify under the general provisions governing temporary workers.

When making decisions on admissibility, officers should consider the overall objectives of the CUSMA that seek to facilitate trade between Canada, the U.S. and Mexico.

1.10 CUSMA definitions and interpretations

The following general definitions for temporary entry are contained in Chapter 2 “General Definitions” and Chapter 16 “Temporary Entry for Business Persons” of the CUSMA:

• business person means a citizen of a Party (a “Party” means the U.S., Mexico or Canada) who is engaged in trade in goods, the provision of services or the conduct of investment activities;
• enterprise means any entity constituted or organized under applicable law, whether or not for profit, and whether privately-owned or owned by government, including any corporation, trust, partnership, sole proprietorship, joint venture or other association;
• enterprise of a Party means an enterprise constituted or organized under the law of a Party;
• measure includes any law, regulation, procedure, requirement or practice.

Like many temporary workers, temporary workers authorized to enter Canada under the CUSMA are allowed to work temporarily either in a temporary or permanent position. The CUSMA cannot be used, however, as a means to remain in Canada indefinitely.

1.11 Administrative definitions and interpretations

Labour certification tests: In Canada, this means the Employment and Social Development Canada Labour Market Impact Assessment (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:

• to implement the provisions of Chapter 16 of the Canada-United States-Mexico Agreement; and
• to ensure compliance with general entry requirements relating to public health, safety, and national security.

1.12 Labour dispute

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.

Article 16.4 of the CUSMA states:

“2. A Party may refuse to grant temporary entry or issue an immigration document authorizing employment to a business person where the temporary entry of that person might adversely affect:

1. the settlement of any labor dispute that is in progress at the place or intended place of employment; or
2. the employment of any person who is involved in such dispute.

3. If a Party refuses pursuant to paragraph 2 to grant temporary entry or issue an immigration document authorizing employment, it shall:

1. provide written notice to the business person of the reasons for the refusal; and
2. promptly provide written notice to the Party whose business person has been refused entry of the reasons for the refusal.”

To ensure compliance with Articles 16.4.3(a) and 16.4.3(b) of the CUSMA, officers are required to:

• provide written notice to the business person of the reasons for the refusal and
• inform NHQ by sending an URGENT email with complete information on the case, including a copy of the above refusal letter and copies of documentation presented by the applicant, to: IRCC.FTATEContactPoint-PointdeContactETALE.IRCC@cic.gc.ca. A copy of the email is to be sent to the Regional Office concerned. NHQ will inform the country of which the business person is a citizen.

2 Business visitors

See General Provisions for more information on examining and processing business visitors

2.1 What requirements apply to business visitors?

The following requirements apply:

• citizenship of the U.S. or Mexico;
• business activities as described in Appendix 1, Section B of CUSMA;
• activities are international in scope;
• no intent to enter the Canadian labour market which the foreign national or the employer can demonstrate by establishing that:
  • the primary source of remuneration remains outside Canada;
  • the principal place of business remains outside Canada; and
• compliance with existing immigration/admissibility requirements for temporary entry.

2.2 What business activities are covered by Appendix 1, Section B of CUSMA?

Business activities covered by Appendix 1, Section B of CUSMA are activities of a commercial nature which reflect the components of a business cycle:

• research and design;
• growth, manufacture and production;
• marketing;
• sales;
• distribution;
• after-sales service; and
• general service.

Appendix 1, Section B of CUSMA of the CUSMA is reprinted in section 2.7. The wording of the Appendix has been modified from the official CUSMA text and explanatory notes added.

Professionals described in Appendix 2 of CUSMA can be authorized to enter Canada under the general service provision of the business visitor category when they meet the Business Visitor criteria.

2.3 Where can a business visitor apply for entry?

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.

2.4 What documentation must a business visitor present to support an application?

A business visitor must provide the following documentation:

• proof of American or Mexican citizenship;
• documentation to support that the purpose for entry, for instance a business activity listed in Appendix 1, Section B of CUSMA; and
• evidence that the business activity is international in scope and that the person is not attempting to enter the Canadian labour market. The business person can satisfy these requirements by demonstrating that:
  • the primary source of remuneration is outside Canada, and
  • the person’s place of business remains outside Canada and the profits of the business are accumulated primarily 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 CUSMA 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, for example fax, email or verbal explanation.

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 1, Section B of CUSMA, copies of the original sales, warranty or service agreement and extensions of such agreements are mandatory.

2.5 What documents are issued and can extensions be granted?

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.

2.6 After-sales service

All persons applying under the after-sales service provision of Appendix 1, Section B of CUSMA must be referred for a secondary examination while seeking entry.

2.6.1 What requirements apply to after-sales service personnel?

The following requirements apply:

• citizenship of the U.S. or Mexico;
• purpose of entry is to install, repair, service, or supervise these functions, or train workers to perform services (see section 2.6.2 for definition of ‘Installation’);
• equipment or machinery (including computer software) is commercial or industrial (not household or personal);
• equipment or machinery or computer software was manufactured and purchased outside Canada;
• work is pursuant to original sales contract and any warranty or service agreement incidental (connected) to the sale;
• work is carried out during the validity of any warranty or service agreement or any extensions of same;
• work requires specialized knowledge (which excludes hands-on building and construction work); and
• compliance with existing immigration requirements for temporary entry.

2.6.2 What is after-sales service?

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.

2.6.3 Who may enter to perform after-sales service?

• Persons may be granted entry to install, repair and maintain equipment and machinery and computer software or to supervise or train workers performing installation, repair and maintenance of such equipment.
• Persons granted entry to train or to supervise training may also train or supervise the workers who are doing the hands-on building and construction work. Supervising and training might occasionally require demonstrating a procedure. A demonstration must not, however, result in the completion of an installation or servicing task, or of part of such task, or in the productive operation of the equipment or machinery.

2.6.4 Who may not enter to perform after-sales service?

• Persons whose activities or services in Canada would constitute hands-on building and construction work may not enter to provide after-sales service. Hands-on building and construction work is not considered to require specialized knowledge (see section 2.6.5 for information on specialized knowledge).
• Generally the entry of foreign tradespersons in the building and construction industry is subject to an assessment of the availability of domestic labour (an LMIA). As part of the LMIA process, Service Canada will consult with organized labour prior to making a determination.
• Personnel performing the installation or servicing, entry should not be granted when performing hands-on building and construction work. The performance of these activities are not permitted, regardless of wording in sales, warranty or service agreements supporting they be completed.

Building and construction work includes installing, maintaining and repairing:

• utility services;
• any part of the fabric of any building or structure; or
• machinery, equipment or structures within a building.

Building and construction work includes activities normally performed by (but not limited to):

• labourers;
• millwrights;
• heat and frost insulators;
• bricklayers;
• carpenters and joiners;
• electrical workers;
• operating engineers (includes heavy equipment operators);
• elevator constructors;
• sheet metal workers;
• teamsters;
• boilermakers;
• residential, commercial or industrial painters (including the application of all surface coatings no matter how applied);
• bridge, structural and ornamental ironworkers;
• plumbers and pipefitters;
• roofers;
• plasterers and cement masons.

Building and construction work includes work involving:

• assembly lines;
• conveyor belts and systems;
• overhead cranes;
• heating, cooling, and ventilation or exhaust systems;
• elevators and escalators;
• boilers and turbines; and
• dismantling or demolition of commercial or industrial equipment or machinery, whether on-site or in-plant.

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.

2.6.5 What requirements apply to a person seeking entry to provide after-sales service?

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 skill and/or knowledge level necessary to perform the proposed activity in Canada (i.e., the services to be provided must require the use of specialized knowledge which generally excludes hands-on building and construction work);
• the high level of skill or knowledge the person possesses as indicated by a relevant post- secondary degree or diploma, or by licensing, certification or accreditation issued by an authoritative body;
• additional training, whether in-class or on-the-job, which is essential for providing the service.

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.

2.6.6 What requirements apply to the equipment or machinery, or computer software?

• The equipment or machinery, or computer software must be for use in a commercial or industrial setting. The after-sales service provision does not apply to household or personal goods or appliances.
• The commercial or industrial equipment or machinery or the computer software must have been manufactured outside Canada.
• The commercial or industrial equipment or machinery or the computer software must have been purchased from a manufacturer or distributor located outside of Canada.

Equipment or machinery leased or rented from an enterprise outside of Canada is not covered under the after-sales service provision. For computer software, the “purchase” includes a licensing agreement.

For the purposes of this provision, the purchase of the equipment or machinery or computer software can include:

• a direct sales transaction between a manufacturer or distributor abroad and an end-user in Canada; or
• 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.
  • 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.

While CUSMA only provides for after-sales situations, the general provision for business visitors R187, under which this section of CUSMA is implemented) allows individuals to enter pursuant to both sales and lease agreements.

2.6.7 What is third party service?

• Third party service occurs when a seller located outside Canada (in the U.S. or Mexico or in another country) contracts the after-sales servicing to another firm (a third party). The third party must be established in the U.S. or Mexico.
• There must be clear wording in the sales agreement that specifies that a third party will perform the installation, warranty or service work. Unless such wording exists, there is no evidence that the third party service is incidental to the sale. However, the firm need not be named in the agreement, as it may take some time for the firm to be identified.

2.6.8 What documentation must the person present to support the application?

A person must present the following documentation:

• proof of American or Mexican citizenship; and
• copies of the original sales agreement, and warranty or service agreement, including extensions, which clearly support the purpose of entry.

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.

2.6.9 What if a person is unable to provide documentation?

Before refusing entry based on the lack of documentation, every effort should be made to allow documentation to be provided (e.g., by fax, email or verbal explanation) 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.

2.6.10 Does the CUSMA affect any requirements for licensing or certification with respect to installation and servicing activities?

The CUSMA 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 CUSMA.

2.6.11 When should a Visitor Record be issued to a person entering to perform after-sales service?

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.

2.7 Appendix 1, Section B of CUSMA – Business visitors activities (amended)

Amended to include interpretive notes - the official text of Appendix 1, Section B of CUSMA.

The term “commercial transaction”, found in some provisions in Appendix 1, Section B of CUSMA 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.

Research and design

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.

Marketing

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.

Sales

• Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the U.S. or Mexico but not delivering goods or supplying services.

• Buyers purchasing for an enterprise located in the U.S. or Mexico.

Distribution

• Transportation operators transporting goods or passengers to Canada from the U.S. or Mexico, or loading and transporting goods or passengers from Canada, with no unloading in Canada, to the U.S. or Mexico.
• In the CUSMA, a “transportation operator” means:
  • a natural person [human being as opposed to a corporate “person” (company)];
  • all operators, other than a tour bus operator, including relief personnel accompanying or following to join; and
  • necessary for the operation of a vehicle for the duration of a trip. (See the General Service provision for information on tour bus operators.)
• This provision includes those persons necessary for the operation of a land transportation conveyance used to transport goods and/or passengers. Persons covered by the provision include the driver and other persons on the vehicle providing services that support the moving operation of the vehicle (for instance, persons providing services to passengers and persons providing services necessary for the movement of the conveyance).
• Pilot vehicle drivers: The parties to the CUSMA have agreed that while pilot-vehicle drivers cannot be defined under the Distribution provision of Appendix 1, Section B of CUSMA, their entry should nonetheless be facilitated. Persons operating highway pilot vehicles (vehicles leading and following trucks transporting over-size loads or hazardous cargo) can be authorized to enter Canada as a member of a crew, pursuant to R186(s) provided the foreign pilot-vehicle driver is accompanying a foreign-owned and foreign-registered vehicle. Ownership of the pilot vehicle is not relevant. This is consistent with the U.S. interpretation of pilot-vehicle drivers entering the U.S. from Canada.
• Taxi-drivers and passenger-van operators: entry to pick-up passengers for delivery to the U.S. pursuant to an oral or written contract for services is permitted, provided that all passengers picked up are disembarked only in the U.S.
• Truck drivers: Although truck drivers involved in international hauling of goods should not normally become involved in the loading or unloading of cargo, there are instances where it is acceptable (e.g., in non-warehouse situations and for cargo such as furniture, chemicals, livestock and building materials). Thus, in special circumstances, particularly involving load safety, the provision also allows the driver, including a relay driver, and the other persons described to participate in the loading and unloading of goods.
• Loaders or loading personnel: The provision does not apply to a person whose only or main job duty is to load or unload the vehicle. Thus, the “crew” of a moving van, other than a driver, is not covered. Nor is a helper on a delivery truck covered by the provision (for instance, a helper on a truck delivering large appliances from a store in an American border town to a Canadian customer).
• Cabotage: An American or Mexican truck driver may load goods in the U.S. or Mexico, then deliver partial loads at several locations in Canada. An American or Mexican driver may also pick-up goods in Canada at one or more locations and take them to the U.S. or Mexico. The American or Mexican driver may combine any or all of these pick-ups and deliveries in one trip as long as the goods picked up in Canada have a final destination in the U.S. or Mexico and are not delivered to another Canadian location. Cabotage, which is pick-up and delivery of the same goods between one location in Canada and another, is not allowed.
  • A bus driver may transport passengers in the same way that truck drivers may transport goods. As long as the trip originates or terminates in the U.S. or Mexico, the bus driver may take the bus to one or several Canadian locations and disembark or board passengers along the way as long as no individuals both join and leave the bus while it is in Canada.
• Relay drivers: operators who drive a portion or portions of a route are also covered by this provision. A relay truck or bus driver need not enter Canada on the truck or bus. A relay driver may enter Canada within a reasonable time before or after the truck or bus enters.
• With respect to temporary entry into the territory of the U.S., Canadian customs brokers performing brokerage duties relating to the export of goods from the territory of the U.S. to or through the territory of Canada.
• With respect to temporary entry into the territory of Canada, U.S. customs brokers performing brokerage duties relating to the export of goods from the territory of Canada to or through the territory of the U.S.
• Customs brokers providing consulting services regarding the facilitation of the import or export of goods.

After-sales services

After sales service includes all 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; and
• Covered 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.

General service

Professionals engaging in a business activity at a professional level in a profession set out in Appendix 2 of CUSMA.

Commercial transactions

• Management and supervisory personnel engaging in a commercial transaction for an enterprise located in the U.S. or Mexico.
• Financial services personnel (insurers, bankers or investment brokers) engaging in commercial transactions for an enterprise located in the U.S. or Mexico.

Public relations and advertising

• Public relations and advertising personnel consulting with business associates, or attending or participating in conventions.

Tourism

• Tourism personnel (tour and travel agents, tour guides or tour operators) attending or participating in conventions or conducting a tour that has begun in the U.S. or Mexico.

Tour bus operation

• Tour bus operators entering Canada:
  • with a group of passengers on a bus tour that has begun in, and will return to the U.S. or Mexico;
  • to meet a group of passengers on a bus tour that will end, and the predominant portion of which will take place, in the U.S. or Mexico; or
  • with a group of passengers on a bus tour to be unloaded in Canada, and returning to the U.S. or Mexico with no passengers, or reloading with the group for transportation to the U.S. or Mexico.

Translation

• Translators or interpreters performing services as employees of an enterprise located in the U.S. or Mexico.

3 Professionals

3.1 What requirements apply to professionals?

The following requirements apply:

• citizenship of the U.S. or Mexico;
• profession identified in Appendix 2 of CUSMA;
• qualification to work in that profession (degree or certification in a related educational program);
• pre-arranged employment with a Canadian employer;
• provision of professional level services in the field of qualification as indicated in the Appendix; and
• compliance with existing immigration requirements for temporary entry.

3.2 What is Appendix 2 of CUSMA?

Appendix 2 of CUSMA, a list of 63 occupations, is the mechanism by which selected professionals can enter Canada to provide their services.

The Appendix is a complete list and cannot be interpreted. If an occupation does not appear on the list, it is not a profession as defined under the Professionals category of the of CUSMA. However, officers should allow for alternative job titles in instances where the job duties are interchangeable. This can be confirmed by referring to the National Occupational Classification (NOC).

The footnotes contained in Appendix 2 of CUSMA form part of the Appendix as it appears in the CUSMA. Notes in italics were added to assist officers in understanding the requirements for the Professionals category generally and some individual professions (e.g., management consultant).

The Minimum Education Requirements and Alternative Credentials indicated for each profession are minimum criteria for entry and do not necessarily reflect the educational requirements, accreditation or licensing necessary to practice a profession in Canada.

Professionals can also be authorized to enter Canada as business visitors (General Service provision of Appendix 1, Section B of CUSMA) when they are not seeking to enter the labour market (meet criteria applicable to business visitors) but will be performing activities such as soliciting business, consulting, providing advice and meeting clients.

3.3 Where can a professional apply for a work permit?

Facilitated entry under the CUSMA allows a professional to apply at a POE. An application can also be made at a visa office before departing for Canada.

U.S. and Mexican citizens can also apply for professional status in Canada, after being authorized to enter Canada as temporary residents [R199].

3.4 What documentation must a professional present to support an application?

A professional must present the following documentation:

• proof of American or Mexican citizenship;
• confirmation of pre-arranged employment provided by:
  • a signed contract with a Canadian enterprise, or
  • evidence of an offer of employment from a Canadian employer, or
  • a letter from the American or Mexican employer on whose behalf the service will be provided to the Canadian enterprise;
• documentation which provides the following information:
  • the proposed employer in Canada;
  • the profession for which entry is sought;
  • details of the position (title, duties, duration of employment, arrangements as to payment; and
  • the educational qualifications or alternative credentials required for the position; and
• evidence that the person has at least the Minimum Education Requirements and Alternative Credentials listed in Appendix 2 of CUSMA (copies of degrees, diplomas, professional licences, accreditation or registration, etc.).

Employment in the Professionals category must be pre-arranged with the Canadian employer. In this context, the Canadian employer may be an enterprise as defined in section 1.10 or an individual. The following are examples of pre-arranged services and do not preclude other arrangements as long as the professional is not self-employed in Canada:

• an employee-employer relationship with a Canadian enterprise; or
• a contract between the professional and a Canadian enterprise; or
• a contract between the professional’s American or Mexican employer and a Canadian enterprise.

The Professionals category does not allow self-employment in Canada (i.e., soliciting business in the Canadian labour market). A person who wishes to be self- employed in Canada should consider making an application under another category such as Trader or Investor. However, an American or Mexican citizen who is self-employed outside Canada is not barred from the Professional category, provided the services to be rendered in Canada are pre- arranged with a Canadian employer.

The Canadian employer must be separate from the applicant seeking entry as a Professional. This means that if the Canadian enterprise offering a contract or employment to the applicant is a sole proprietorship operated by that applicant, then entry cannot be granted under the Professionals category; further if the Canadian enterprise is legally distinct from the applicant (i.e., a corporation with a separate legal entity) but is substantially controlled by the applicant, entry as a Professional must also be refused.

In order to determine if an enterprise is substantially controlled, the following factors must be taken into account:

• whether the applicant has established the business;
• whether the applicant has primary, sole, or de facto control of the business;
• whether the applicant is the primary, sole, or de facto owner of the business;
• whether the applicant is the primary, sole, or de facto recipient of income of the business.

When a professional applies for a renewal of a work permit, the following activities may indicate that the individual has been self-employed in Canada:

• incorporation of a company in Canada expressly for the purpose of the business person being self-employed (incorporating does not automatically signify self-employment; the motives for incorporation need to be examined before making a determination);
• initiation of communications (e.g., “job hunting” by direct mail or by advertising);
• responding to advertisements for the purpose of obtaining employment or contracts; or
• establishing an office which serves as a way to advertise (i.e., a “sign or a shingle” outside the door).

The following activities do not constitute self-employment:

• responding to unsolicited inquiries about service which the professional may be able to perform; or
• establishing an office from which to deliver pre-arranged service to clients.

A professional must be entering Canada to provide professional level services in the field of qualification: That is, the professional must be entering to work in an occupation described in Appendix 2 of CUSMA, for which they are qualified. In making this determination, both the qualification of the individual and the position in Canada must be considered.

The duties the professional intends to practice in Canada must conform to the job duties of the profession. For example, an accountant must be seeking to enter Canada as an accountant and not as a bookkeeper, which is not an occupation covered in Appendix 2 of CUSMA. Alternatively, a bookkeeper cannot be authorized to enter Canada to work as an accountant unless the applicant is also qualified as an accountant as indicated in the Minimum Education Requirements and Alternative Credentials of Appendix 2 of CUSMA. Additionally, to be authorized to enter Canada under the Professionals category, a corporate executive must be entering Canada to work in their field of qualification (i.e. an engineer where the details of the position requirements and job duties of a specific profession are integral to the job).

The applicant must meet the qualifications indicated in the Minimum Education Requirements and Alternative Credentials of Appendix 2 of CUSMA. These qualifications represent only a minimum to permit entry and do not necessarily indicate the level of qualification required to actually work in that profession in Canada.

It is not the role of an officer to determine whether or not the applicant has the necessary license or registration to practice a profession in Canada. The employer in Canada and the professional are responsible to ensure that such requirements are met before employment commences.

In the case of nurses, however, they are required to hold the appropriate provincial license before they can be granted Professional status. Officers may facilitate their entry (e.g., as a business visitor) to permit them to obtain the appropriate licence, providing they can demonstrate that they have initiated steps towards achieving that objective.

In instances where a baccalaureate degree is required, the degree must be in the specific field or in a closely related field. Baccalaureate degrees (or licenciatura) need not have been obtained in colleges or universities in the U.S., Mexico or Canada, whereas post secondary diplomas or certificates should have been earned in one of the three CUSMA countries.

It is possible for a professional to be working in Canada on more than one contract at a time. Information on each employer must be included on the work permit.

3.5 What training functions are permitted for professionals?

Professionals with a valid work permit can provide training related to their profession, including conducting seminars.

The training session must be pre-arranged with a Canadian employer and the subject matter must be at the professional level. Entry does not allow seminar leaders to engage in training that is not pre-arranged with a Canadian employer.

The training must form part of the professional training or development of the participants and must be related to their job duties.

3.6 What documents are issued?

Persons who qualify in the Professionals category may be issued a work permit pursuant to R204(a), T23.

3.7 How long can a work permit be issued and can it be extended?

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.

Officers must be satisfied that the employment is still “temporary” and that the applicant is not using CUSMA entry as a means of circumventing normal immigration procedures.

3.8 Appendix 2 of CUSMA – Professionals (amended)

Amended to include interpretive notes - the official text of Appendix 2 of CUSMA is available.

List of eligible professions under the CUSMA Professionals category

Medical/Allied Professional

Scientist

Teacher

4 Intra-company transferees

4.1 What requirements apply to intra-company transferees?

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.

The temporary entry provisions of the CUSMA are to be used in addition to the general entry provisions governing temporary foreign workers.

4.2 Where can an intra-company transferee apply for a work permit?

Facilitated entry under the CUSMA 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 after being authorized to enter Canada as visitors (R199).

4.3 What documentation must an intra-company transferee present to support an application?

An intra-company transferee must present:

• proof of American or Mexican citizenship;
• confirmation that the foreign national is currently employed by the enterprise outside of Canada;
• confirmation that the person has been employed continuously outside of Canada by the enterprise for one year (full-time) within the three-year period immediately preceding the initial date of application (see tip);
• a letter of introduction from the employer that specifies:
  • the applicant’s current position in an executive, or managerial capacity or one involving specialized knowledge, i.e., position, title, place in the organization, job description;
  • in the case of “specialized knowledge”, evidence that the person has such knowledge and that the position in Canada requires such knowledge;
  • the position in Canada, i.e., position, title, place in the organization, job description;
  • intended duration of stay; and
  • description of the relationship between the enterprise in Canada and the enterprise in the U.S. or Mexico.

Officers may request tangible proof to establish the relationship between the Canadian and American or Mexican organizations.

In order to qualify in the intra-company transferee category, it must be established that a business enterprise “is or will be doing business” in both Canada and the business person’s home country, the U.S. or Mexico.

An applicant seeking entry to open a new office on behalf of the American or Mexican enterprise may also qualify if documentation provided establishes 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 CUSMA, the general provisions which deal with intra-company transferees (R205(a), C12) may also be considered.

4.4 What are an affiliate, a branch, an enterprise, a parent and a subsidiary?

Affiliate means:

• one of two subsidiaries, both of which are owned and controlled by the same parent or individual; or
• one of two legal entities, owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each company.

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:

• directly or indirectly, half or more than half of the entity and controls the entity; or
• owns, directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; or
• owns directly or indirectly, less than half of the entity, but in fact controls the entity.

4.5 What is “executive capacity”?

“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.

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.

4.6 What is “managerial capacity”?

“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.

A first-line supervisor is not considered to be acting in a managerial capacity unless the employees supervised are professionals.

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”?).

4.7 What is “specialized knowledge”?

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).

4.8 What documents are issued?

Persons who qualify as intra-company transferees are to be issued a work permit pursuant to R204, T24.

4.9 How long can a work permit be issued and can it be extended?

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 CUSMA category where Canada has imposed a “cap” 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.

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 a foreign national not residing in Canada 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.

Traders and investors

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.)

5 Traders

5.1 What requirements apply to traders?

The following requirements apply:

• applicant has American or Mexican citizenship;
• the employing enterprise has American or Mexican nationality;
• activities involve substantial trade in goods or services;
• trade is principally between either the U.S. or Mexico, and Canada;
• position is supervisory or executive, or involves essential skills; and
• compliance with existing immigration requirements for temporary entry.

5.2 Where can a trader apply for a work permit?

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, 1.41 MB)] in addition to the application for a work permit.

5.3 What criteria must be met?

Nationality

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.

The place of incorporation of an enterprise is not an indicator of nationality; nationality is indicated by ownership. 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. To establish nationality an officer can consider the following:

• A letter attesting to ownership from a corporate secretary or a company lawyer may be used in determining nationality;
• An entity’s shares are sold exclusively on a stock exchange of the country of incorporation, nationality can be presumed to the same; and/or
• A multinational entity whose shares are exchanged in more than one country will require the applicant to 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.

Substantial trade

“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.

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.

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.

Capacity

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:

• position title;
• place in the organizational structure;
• job duties;
• degree of ultimate control and responsibility over operations;
• number and skill levels of immediately subordinate employees over whom supervision is exercised;
• level of pay commensurate with a senior position; and
• qualifying executive or supervisory experience.

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:

• the degree of proven expertise of the applicant in the area of specialization;
• the uniqueness of the special skills. The availability of workers in Canada to perform such work, not as an LMIA, but rather as a measure of the degree of the specialization or uniqueness of the skill;
• the function of the job;
• the period of training required to perform the contemplated duties; and
• a salary commensurate with the special expertise. The salary of an applicant with essential skills should be significantly higher than that of a skilled labourer in the relevant occupation.

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.

5.4 What documents are issued?

Persons qualifying in the Trader category may be issued a work permit pursuant to R204; T21 should be used.

5.5 How long can a work permit be issued and can it be extended?

• The initial work permit can have a maximum duration of one year.
• Extensions should be granted for a duration of two years provided that all requirements described above continue to be met.

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.

6 Investors

6.1 What requirements apply to investors?

The following requirements apply:

• applicant has American or Mexican citizenship;
• enterprise has American or Mexican nationality;
• substantial investment has been made, or is actively being made;
• applicant is seeking entry solely to develop and direct the enterprise;
• if the applicant is an employee, position is executive or supervisory or involves essential skills; and
• compliance with existing immigration measures applicable to temporary entry.

6.2 Where can an investor apply for a work permit?

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, 1.41 MB)] in addition to the application for an employment authorization.

6.3 What criteria must be met?

• The applicant is a citizen of the U.S. or Mexico and the enterprise or firm to which the applicant is coming has American or Mexican nationality.

  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.

• The applicant is seeking temporary entry solely to develop and direct the operations of an enterprise in which the applicant has invested, or is actively in the process of investing, a substantial amount of capital.

  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:

• Funds: Mere possession of uncommitted funds in a bank account would not qualify, whereas, a reasonable amount of cash held in what is clearly a business bank account or similar fund used for routine business operations may be counted as investment funds.
• Indebtedness: Mortgage debt or commercial loans secured by the enterprise’s assets cannot count toward the investment as there is no requisite element of risk. Loans secured by the applicant’s own personal assets, such as a second mortgage on a home, or unsecured loans, such as a loan on the applicant’s personal signature, may be included since the applicant risks the funds in the event of business failure.
• Lease/rent payments: Payments in the form of leases or rents for property or equipment may be calculated toward the investment in an amount limited to the funds devoted to that item in any one month. However, the market value of the leased equipment is not representative of the investment and neither is the annual rental cost (unless it has been paid in advance) as these rents are generally paid from the current earnings of the business.
• Goods/equipment as investment: The amount spent for purchase of equipment and for inventory on hand may be calculated in the investment total. The value of goods or equipment transferred to Canada (such as factory machinery shipped to Canada to start or enlarge a plant) is considered an investment provided the applicant can demonstrate that the goods or machinery will be put, or are being put, to use in an ongoing commercial enterprise.

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:

• the total value of the particular enterprise in question (determining proportion is a largely straightforward calculation involving the weighing of evidence of the actual value of an established business, i.e., purchase price or tax valuation, against the evidence of the amount invested by the applicant); or
• the amount normally considered necessary to establish a viable enterprise of the nature contemplated. (This may be a less straightforward calculation. Officers will have to base the decision on reliable information on the Canadian business scene to determine whether the amount of the intended investment is reasonable for the type of business involved. Letters from chambers of commerce or statistics from trade associations may be reliable for this purpose.)

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.

6.4 What criteria must be met to qualify to bring an employee to Canada in investor status?

Criteria applicable to the employer

To bring an employee to Canada in investor status, the nationality requirement must be met:

• the prospective employer in Canada must be a citizen of the U.S. or Mexico who is maintaining investor status in Canada; or
• if the prospective employer is a corporation or other business organization, the majority ownership must be held by citizens of the U.S. or Mexico who, if not residing in the U.S. or Mexico, are maintaining investor status in Canada.

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.

Criteria applicable to the employee

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:

• position title;
• place in the organizational structure;
• job duties;
• degree of ultimate control and responsibility over operations
• number and skill levels of immediately subordinate employees over whom supervision is exercised;
• level of pay; and
• qualifying executive or supervisory experience.

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:

• the degree of proven expertise of the applicant in the area of specialization;
• the uniqueness of the special skills;
• the length of experience and training with the firm;
• the period of training required to perform the contemplated duties; and
• the salary that the special expertise can command.

There are two exceptions to the application of the factors concerning essential skills:

New enterprises

• investor status may be granted to an employee not possessing essential skills when the employee is needed for the start-up of a new enterprise;
• the employee and the company will have to demonstrate need, based upon familiarity with the American or Mexican operations of the firm;
• this provision usually applies where a firm established in the U.S. or Mexico seeks to use a skilled American or Mexican employee in the early stages of a Canadian investment;
• investor status will normally be granted for a period not to exceed one year;
• this procedure is designed to assist new enterprises to establish themselves and to allow them a reasonable period of time to train a Canadian for a position not requiring essential skills.

Highly trained technicians

• a highly trained or specially qualified technician employed by a firm to train or supervise personnel employed in manufacturing, maintenance and repair functions may be granted investor status even though some manual duties may be performed, provided that the firm cannot obtain the services of a qualified Canadian technician;
• the emphasis is on “highly trained”. For example, a qualified technician coming to perform warranty repairs on intricate and complex products sold in trade between Canada and the U.S./Mexico can be granted investor status if the employing firm 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 worker to occupy a position requiring high technical skills.

6.5 What documents are issued?

Persons qualifying in the Investor category may be issued a work permit pursuant to R204, T22.

6.6 How long can a work permit be issued and can it be extended?

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.

Canada-United States-Mexico Agreement and university, college and seminary teachers

The immigration provisions of the CUSMA 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 CUSMA for university, college and seminary teachers.

1. What are the general principles of the immigration chapter of the CUSMA?

1. It reflects the desirability of facilitating temporary entry on a reciprocal basis for persons whose activity or profession is described in the chapter.
2. It recognizes the need to ensure border security and protect indigenous labour and permanent employment.

2. Does the CUSMA replace previously existing immigration provisions for 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 CUSMA augments the existing provisions respecting exchange professors, guest lecturers and visiting professors. (See Annex 1 for details of general provisions.)

3. What immigration provisions exist under the CUSMA?

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.

Thus, a person entering to be employed temporarily as a university teacher can carry out the range of duties normally associated with that position.

4. Is coverage of the new CUSMA provisions restricted to Canadian, American and Mexican citizens?

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 CUSMA. They do, however, continue to have access to each country through existing general or universal provisions governing the entry of temporary foreign workers.

5. Does the CUSMA facilitate permanent admission to Canada, the U.S. or Mexico?

No. The immigration chapter of the CUSMA covers temporary entry only.

6. What is "temporary entry"?

The CUSMA 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 CUSMA 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 IRCC’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.

7. Does the CUSMA allow temporary entry to undertake a temporary appointment in a permanent position?

Yes. Many temporary foreign workers in general are authorized to work temporarily in a permanent position that, for one reason or another, is temporarily vacant.

8. Is the LMIA procedure for temporary and permanent employment affected by the CUSMA?

The procedures which apply to permanent employment are unaffected by the CUSMA. The advertising procedure required as part of the LMIA process continues for permanent appointments.

On the other hand, the CUSMA 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 effect^{Footnote *} is permissible for a temporary appointment under the CUSMA.

A university can institute a “Canadians-first”^{Footnote **} hiring policy and not be in conflict with provisions of Chapter 16 or any other provisions of the CUSMA. 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 CUSMA.

9. What happens when a university wishes to turn a temporary appointment under the CUSMA into a permanent appointment?

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.

10. What immigration procedures apply to American or Mexican teachers coming to Canada to undertake temporary appointments?

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:

1. evidence of citizenship (passport or birth certificate);
2. a letter or signed contract from the institution providing full details of the temporary appointment including:
   • the nature of the position offered;
   • arrangements for remuneration;
   • educational qualifications required; and
   • the duration of the appointment.

   While not mandatory, for the purpose of further facilitating entry at the border, it is recommended that the letter or contract specify that “the offer of employment is for a temporary appointment consistent with the terms of the Canada-United States-Mexico Agreement”;

3. evidence that the applicant holds at least a baccalaureate degree.

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.

11. What immigration procedures apply to Canadian teachers going to the U.S. and to Mexico to undertake temporary appointments?

As mentioned earlier, one of the fundamental principles of the immigration chapter of the CUSMA 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 CUSMA. Canadians should contact a U.S. POE or consulate or Mexican consulate for full details.

12. Can persons who are denied temporary entry under the CUSMA appeal such decisions, and will reasons for denials be given?

The CUSMA 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.

13. Is there a means of assuring that Canadians, Americans and Mexicans are treated equally upon entry to the three countries?

Yes. The chapter Temporary Entry for Business Persons of CUSMA 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 CUSMA procedures and to resolve problems relating to the on-going implementation of the chapter.

LMIA exemption codes (teachers)

Code C22

Persons who are engaged by post-secondary educational institutions (e.g., universities, community colleges and similar institutions) as:

1. exchange professors coming to Canada on a reciprocal basis;
2. guest lecturers who are invited by a post-secondary institution to give a series of lectures which does not comprise a complete academic course and is for a period of less than one academic term or semester;
3. persons coming as visiting professors for a period of not more than two academic years to take a position with a post-secondary institution and who retain their former position abroad (as this does not apply to Summer Student instruction, appropriate terms and conditions should be imposed).

University teachers

The duties of a university teacher include:

• teaching one or more subjects within a prescribed curriculum;
• preparing and delivering lectures to students;
• conducting seminars or laboratory sessions;
• stimulating and guiding class discussions;
• compiling bibliographies of specialized materials for outside reading assignment;
• preparing and administering examinations and grading answer papers;
• assigning and marking essays;
• directing research programs of graduate students;
• conducting research in a particular field of knowledge, and publishing findings in books or professional journals;
• serving on faculty committees concerned with such matters as curriculum revision, academic planning and degree requirements;
• advising students on academic and other matters;
• assisting students with the conduct of various scholarly, cultural and political clubs or societies;
• providing professional consultative services to government, industry and private individuals;
• attending regional and international conferences dealing with academic specializations; and
• teaching as required in an adult education or university extension program, by means of correspondence courses or night classes.

Teachers at this level usually specialize in one subject, or two or more related subjects.