Prepared by Peter W. Wong, Q.C.

The content of this article is intended to be informational only. We caution you against using or relying upon any information contained in this article without first seeking legal advice regarding your particular matter. All matters arising from the use of our website, including this article, shall be governed by Alberta law and shall be within the exclusive jurisdiction of the courts of Alberta
 

1. Business (Temporary Entry)

2. Professionals

In respect of Business Visitors there are 3 main categories of Business Visitors:

1. The ordinary or usual Business Visitor

2. Traders and Investors

3. Intra-Company Transferees


Business Visitors

Business Visitors are further defined as persons seeking to engage in a business activity specifically set out in Appendix 1603.A.1 as set out below. No employment authorization (work permit) is required provided the business visitor is able to demonstrate the following:

(a) proof of citizenship of a Party;

(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and

(c) evidence demonstrating that the proposed business activity is international in scope and that the business person is not seeking to enter the local labour market.

In order to establish evidence of paragraph (c) the business person may satisfy the requirement by demonstrating that:

(a) the primary source of remuneration for the proposed business activity is outside the territory of the Party granting temporary entry; and

(b) the business person’s principal place of business and the actual place of accrual of profits, at least predominantly, remain outside such territory.

Oral declarations at the port of entry are normally accepted, however a letter from the employer attesting to these matters are accepted as proof of the requirements. In situations where there is any doubt as to an oral declaration being sufficient in the circumstances an employer’s letter is strongly recommended.


Traders & Investors

Traders and Investors are defined as business persons seeking entry to:

(a) carry on substantial trade in goods or services principally between the territory of the party of which the business person is a citizen and the territory of the Party into which entry is sought, or

(b) establish, develop, administer or provide advice or key technical services to the operation of an investment to which the business person or the business person’s enterprise has committed, or is in the process of committing, a substantial amount of capital, in a capacity that is supervisory, executive or involves essential skills.

A distinction should be drawn between this second category and the first, in that Traders and Investors may be required to obtain a visa prior to entry. Both the U.S. and Canada require pre-approval in the form of a visa for U.S. entries and a work permit for Canadian entry. Further, a distinctive needs to be drawn in Business Immigration categories used by both U.S. and Canada which provides for Business Immigration in categories such as Investor, Entrepreneur and Self-Employed. Permanent Residence visas require significantly longer processing times and greater documentation to substantiate the business case for a permanent residence visa.


Intra-Company Transferees

Temporary entry may be granted to business persons who are employed by an enterprise (company or other legal entity) that has a subsidiary or affiliate in another party . The services rendered by that business person must be in a managerial, executive or specialized knowledge capacity. Further, there is generally a requirement that the business person seeking entry has been continuously employed and present in the party country for at least one year period within the 3 years immediately preceding the date of application. Member countries have rules that may have rules that may differ in respect of how this employment residency provision is interpreted.

Appendix 1603.A.1 Business Visitors specifically define the types of activities that are allowed without work permit. There are no fees charged by the member countries for entry for the purposes described below:



Research and Design

• Technical, scientific and statistical researchers conducting independent research or research for an enterprise located in the territory of another Party.

Growth, Manufacture and Production

• Harvester owner supervising a harvesting crew admitted under applicable law

• Purchasing and production management personnel conducting commercial transactions for an enterprise located in the territory of another Party.

Marketing

• Market researchers and analysts conducting independent research or analysis or research or analysis for an enterprise located in the territory of another Party.

• 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 territory of another Party but not delivering goods or providing services.

• Translator or interpreters performing services as employees of an enterprise located in the territory of another Party.

• Buyers purchasing for an enterprise located in the territory of another Party.

Distribution

• Transportation operators transporting goods or passengers to the territory of a Party from the territory of another Party or loading and transporting gods or passengers from the territory of a Party, with no unloading in that territory, to the territory of another Party.

• With respect to temporary entry into the territory of the United States, Canadian customs brokers performing brokerage duties relating to the export of goods from the territory of the Untied States or through the territory of Canada.

• With respect to temporary entry into the territory of Canada, United States customs brokers performing brokerage duties relating to the export of goods from the territory of Canada to or through the territory of the United States.

• Customs brokers providing consulting services regarding the facilitation of the import or export of goods.

After-Sales Services

• Installers, repair and maintenance personnel, and supervisors, possessing specialized knowledge essential to a seller’s contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the territory of the Party into which temporary entry is sought, 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 1603.D.1.

• Management and supervisory personnel engaging in a commercial transaction for an enterprise located in the territory of another Party.

• Financial services personnel (insurers, bankers or investment brokers) engaging in commercial transactions for an enterprise located in the territory of another Party.

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

• 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 territory of another Party.

• Tour bus operators entering the territory of a Party:

(a) with a group of passengers on a bus tour that has begun in, and will return to, the territory of another Party;

(b) to meet a group of passengers on a bus tour that will end, and the predominant portion of which will take place, in the territory of another Party; or

(c) with a group of passengers on a bus tour to be unloaded in the territory of the Party into which temporary entry is sought, and returning with no passengers or reloading with the group for transportation to the territory of another Party.

• Translators or interpreters performing services as employees of an enterprise located in the territory of another Party.


NAFTA Professionals

The other main category relating to temporary entry is in respect of the facilitation of professionals working for another member country. Such a grant of temporary entry requires confirming documentation to:

1. prove citizenship;

2. demonstrate that the business person will be so engaged and describing the purpose of entry.

It is important to note that a Professional must have an employment offer from an enterpr4ise in the country that he or she is seeking entry. Further, in this type of entry, a work permit or visa will be issued by immigration officials. Processing of the work permit or visa is usually performed a the Port of Entry and is usually performed at the time of entry of the person seeking to work in the member country.

In most professional categories an university level baccalaureate (bachelor’s) degree is required. The notable exceptions to this generalization are Management Consultant and Scientific Technician/Technologist. In the situation of Management Consultant either a baccalaureate degree of “five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement.” Caution must be exercised in categorizing all non-degree persons as a Management Consulting. Management Consultants are defined in Canadian policy as follows:

1. A management consultant provides services which are directed toward improving the managerial operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems. Thus, the client’s goals, objectives, policies, strategies, administration, organization, and operation are improved.

2. A management consultant may provide the following range of services:

‒ conduct a comprehensive examination of the client’s business to isolate and define problems;

‒ prepare a presentation and report all findings to the client;

‒ work with the client to design and implement in-depth working solutions.

3. Management consultants assist and advise in implementing recommendations but do not perform functional / operational work for clients.

4. Any training or familiarization that is provided to Canadian client management and personnel on an individual or group basis:

‒ must be incidental to the implementation of new systems and procedures which were recommended in the management consulting report contracted by the Canadian client;

‒ must be performed by permanent (indeterminate) employees of the recommending American or

5. Typically, a management consultant is an independent contractor or an employee of a consulting firm under contract to a Canadian client. A management consultant can also occupy a permanent position on a temporary basis with a Canadian management consulting firm.

Scientific technicians or technologists require theoretical knowledge of scientific disciplines which they can apply to practical problems. Although there are no minimum educational qualifications defined under NAFTA it is strongly recommended that a 1 to 2 years diploma in a scientific or technical filed be the minimum requirement for this category.

“A business person in this category must be seeking temporary entry to work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.”

The following Appendix 1603.D.1 is a complete listing of Professionals authorized to work in Member countries upon application and obtaining the proper work visa or permit:

Appendix 1603.D.1 - Professionals
 

 
 It is important to note that business person seeking temporary entry as a professional may also perform training functions related to the profession, including conducting seminars.

References to state/provincial license, and degrees are specifically defined in NAFTA as follows:

“State/provincial license” and “state/provincial/federal license” mean any document issued by a state, provincial or federal government, as the case may by, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession.

“Post-Secondary Diploma” means a credential issued , on completion of two or more years of post-secondary education, by an accredited academic institution in Canada or the United States.

“Post-Secondary Certificate” means a certificate issued, on completion of two or more years of post-secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.

Although NAFTA Business and Professional categories are relatively easy to complete the lack of pre-approval and the risk of refusal and the difficulty of remedial work thereafter, make it desirable to seek professional advice, direction and assistance desirable in advance of the entry sought.

We are pleased to assist any of the temporary visas described above and going in both directions across the Canadian/U.S. border.
If you wish any further information, please feel free to contact us at immlaw@caronpartners.com