Under the NAFTA program, business people who are citizens of the USA or Mexico have temporary entry to sell, provide goods and services or take part in investment activities in Canada. The agreement seeks to soften trade between Canada, USA and Mexico — resulting in a reciprocal trade relationship amongst all three countries.
One of the relieving aspects when applying under this program is that it removes the need for an employer to apply for an LMIA. There are a total of four categories currently functioning under the NAFTA program however we will be taking a closer look at two of the more popular categories;
- Intra-company transferees
Under the professionals category the first thing to consider is that a work permit is required. In order to start the process, you as a citizen of either USA or Mexico must already have a prearranged contract with a Canadian employer. The Canadian employer may be an enterprise or an individual. A contract that is valid usually is between you as the “professional” and the Canadian enterprise or a contract between your employer and the Canadian enterprise. This can include an employer-employee relationship with the Canadian enterprise.
What occupations are valid for NAFTA professionals?
Keep in mind — there is a specific list that includes over 60 named occupations applicable to this category. The reason we prefer not to list all occupations in its entirety is because an occupation that is not listed may still be permitted if the job duties match an occupation that is eligible. Furthermore, “footnotes” clarify certain occupations listed and without reading the fine print you may, without realizing, be ineligible. This is why it’s important to read the list carefully. It’s crucial that you have the right qualifications to work in the position addressed in your contract and that your degree is related to your field of experience. Examples of professional occupations include a few of the following (please note footnotes and credentials are not detailed);
- Computer Systems Analyst
- Graphic Designer
- Hotel Manager
- Interior Designer
- Social Worker
- Teacher (post-secondary)
There are many more occupations listed for this category not included above. Please note that any professional cannot have substantial control of the company in which they are seeking entry.
What documents do I need?
As a general rule of thumb, these documents are important to provide when making an application for NAFTA professionals:
- Proof of citizenship (USA or Mexico)
- Proof of pre-arranged employment including details of the position and educational qualifications required
- Proof that you meet the proper credentials and education requirements of the job
What if I’m self-employed, Do I qualify?
The initial response is no. This category does not allow self employed people to make an application to work as a self-employed “professional” in Canada. However, if you work as a self-employed person outside of Canada you may be accepted if you can prove a pre-arranged contract with a Canadian enterprise and will not be performing any “self-employed” work in Canada. Meeting the above basic requirements still apply.
NAFTA Intra-company transferees
An intra-company transferee is a USA or Mexican citizen who is transferring to a Canadian enterprise that has a parent, branch, subsidiary or affiliate relationship to the Mexican or USA company. The business enterprise is currently or will be doing business in both Canada and the transferee’s country (USA or Mexico). The key component is that you as the transferee must be seeking employment in an executive or managerial role — or one involving “specialized knowledge.” Therefore, not any position is applicable.
Additional requirements that apply include the following:
- Proof of citizenship (USA or Mexico)
- Current employment in a similar position outside Canada for at least one year, that was continuous and full-time in the three-year period from the date of application
- Details of your current position (in an executive, managerial or specialized knowledge role)
- Details of the position in Canada
- Intended length of stay
- Proof of relationship between the enterprise in Canada and the enterprise in USA or Mexico
What defines an “executive, “managerial” or “specialized knowledge” role?
This can be tricky and may involve a legal expert to help determine whether or not you as the transferee fall into any of the above categories. We have laid out a general guide as to what Immigration Canada looks for regarding each role:
An “executive” position involves some of the following:
- Directing the management of a company or an important component within a company
- Establishing goals and policies of the company
- Discretionary decision-making
- Receiving only a modest level of supervision or direction from higher level personnel
An executive position does not typically perform duties in the production of a product or in the delivery of a service. Job duties are key in determining whether someone has an executive position.
A “managerial” position involves some of the following:
- Managing the company — or a department, division or important component of the company
- Supervising and having control over the work of other professional (supervisors or managers included) employees within the company or within an essential function of the company
- Having the authority to hire, fire or recommend promoting an employee
- Discretion over the everyday operations
Similar to an executive, a manager does not primarily perform duties involving production or delivery of a service. Job duties are key in determining whether someone has a managerial position.
“Specialized Knowledge” positions
A position for “specialized knowledge” tends to be a bit more complex. Generally speaking, if you believe you possess specialized knowledge in a company, there must be proof that this is more probable than not by proving you possess both proprietary knowledge and advanced expertise. You cannot possess only one or the other — but both. An officer will determine whether or not you have specialized knowledge on a balance of probabilities.
What is Proprietary knowledge?
To keep it relatively straightforward, this type of knowledge is the specific and advanced understanding of a company’s product or service. This is company specific knowledge.
Advanced proprietary knowledge is your level of uncommon knowledge of the host company’s products or services and its application in international markets. Alternatively, you might have a unique and profound knowledge about the company’s procedures (ie. production, marketing, research).
What is Advanced Expertise?
As the other requirement, you can acquire “advanced” expertise depending on the level of significant (ie. how long you’ve worked in your field of expertise) and recent experience. Your expertise will contribute towards the company’s productivity. The longer the experience, the more likely the knowledge is considered “specialized.”
In assessing both your level of proprietary knowledge AND advanced expertise, you should have:
- Highly unusual, unique and different abilities and knowledge that cannot be easily transferred to another person (especially within a short amount of time)
- Proprietary knowledge must be critical to the business of the Canadian branch
- Proprietary knowledge that is not found in the company and not readily available in the Canadian labour market
It is worth mentioning that without your transfer — significant disorder of the Canadian business would occur; making them dependent on your level of knowledge or expertise. Other things such as wage may be a factor in assessing whether or not you hold specialized knowledge. While many positions are considered highly skilled, lower skilled positions may be assessed as well.
Do I need to live in Canada?
Not necessarily. That being said, you are expected to occupy a valid position within the Canadian branch of your company and it’s the Canadian company that is controlling your daily activities.