Entry of business persons to Canada under CUSMA
Effective July 1, 2020, the North American Free Trade Agreement (“NAFTA”) was officially replaced by the Canada-United States-Mexico Agreement (“CUSMA”). Like NAFTA, CUSMA contains provisions for the temporary entry of foreign “business persons” to Canada in certain cases. These provisions remain unchanged under CUSMA, but are summarized below as a refresher.
Application of CUSMA
CUSMA includes provisions regarding the temporary entry of certain business persons to Canada, but does not deal with permanent residence. To be eligible, business persons must be citizens of the United States (including US citizens of the District of Columbia and Puerto Rico) or Mexico. CUSMA does not apply to permanent residents of these countries, nor does it cover citizens of Guam, the Northern Mariana Islands, American Samoa, or the US Virgin Islands.
Further, any business persons seeking entry under CUSMA must be involved in trade of goods or services. Alternatively, investment activities are also covered in some cases.
“Business persons”
CUSMA provides for the following categories of business persons:
- Business visitors – Individuals who are able to enter Canada for business purposes and carry out activities without work permits (see below).
- Professionals – Individuals who are professionals, like engineers, architects and computer systems analysts, and who will be providing pre-arranged professional services in Canada. CUSMA Professionals do require work permits.
- Intra-Company Transferees – Individuals who are employed in certain types of capacities with an American or Mexican enterprise and who are being transferred to the Canadian parent, branch, subsidiary, or affiliate to work in the same capacity. CUSMA Intra-Company Transferees do require work permits.
- Traders and Investors – Individuals who carry on substantial trade in goods or services between the United States or Mexico and Canada or individuals who have committed (or will commit) a substantial amount of capital in Canada. CUSMA Traders and Investors do require work permits.
With respect to the three categories of business persons requiring work permits, CUSMA allows these individuals to bypass the Labour Market Impact Assessment (“LMIA”) process with Service Canada and obtain an LMIA-exempt work permit. This also means the employer will not have to undergo the recruitment process (i.e. four weeks of advertising for the role to find suitable and available Canadians or permanent residents) that Service Canada typically requires for the LMIA process. In other words, these LMIA-exempt CUSMA permits can often be obtained in a more timely manner than LMIA-based work permits.
Business visitors
Also note that while the business visitor category does allow entry to Canada for business purposes without a work permit, applicants should be sure to seek advice on whether they in fact are likely to be considered business visitors. Otherwise, they may be denied entry, inadvertently work without proper authorization, or even face misrepresentation allegations if they improperly characterize their work in the business visitor category.
Typically, business visitors are individuals engaging in certain activities that are international in scope who have no intent to enter the Canadian labour market. Their primary source of remuneration and principal place of business remain outside of Canada despite their physical location in Canada for said business activities. Relevant business activities can include research and design, some sales and marketing work, after-sales service and similar.
Duration of entry
Under CUSMA, the duration of entry allowed (or duration of the work permit issued, where applicable), will vary from category to category, and may be possible to extend. However, CUSMA categories are once again intended for temporary entry only, and are not intended to provide a route to bypass the permanent residency application process.
Our immigration group would be pleased to help you, your employee, or any business person requiring entry to Canada in relation to your business to assess options for entry under CUSMA or otherwise.
This update is intended for general information only. If you have questions about the above, please contact a member of our Immigration Group.
Click here to subscribe to Stewart McKelvey Thought Leadership articles and updates.
Archive
RECENT DEVELOPMENTS: DISABILITY INSURANCE POLICIES & LIMITATION PERIODS IN NOVA SCOTIA Two recent Nova Scotia decisions have clarified the issue of limitation periods in disability insurance policies and “rolling” limitation periods. THORNTON V. RBC…
Read MoreSection 156 of the Excise Tax Act (the “ETA“) provides an election that relieves certain related parties from having to collect Harmonized Sales Tax (“HST“) on the goods and services sold between them. The election deems qualifying…
Read MoreIN THIS ISSUE: More Than Wind – Emergence of Tidal Energy in Atlantic Canada by Sadira Jan Aquaculture and Salmon Farming in Atlantic Canada by Greg Harding The Expanding Atlantic Canada Offshore Industry: Growing Offshore without Going Offside by Stephen Penney and Rebecca…
Read MoreThe Supreme Court of Canada’s unanimous decision in the breach of contract case Bhasin v Hrynew, 2014 SCC 71 was released on November 13, 2014. The case is important in the law of contracts because…
Read MoreOn June 20, 2014, the Government of Canada announced a series of reforms to overhaul the Temporary Foreign Worker Program (“TFWP”). These reforms, many of which are effective immediately, function to: Re-organize the TFWP The…
Read MoreThe Editor’s Corner Clarence Bennett Summer is halfway over, but we know you will want to take this edition along with you while you enjoy more summer weather and time out of the office. Employers…
Read MoreOn June 26, 2014, the Supreme Court of Canada released one of the most significant aboriginal law decisions since Marshall – Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (also known as the William decision). This decision could have…
Read MoreIn Industrial Alliance Insurance and Financial Services Inc. v. Brine, 2014 NSSC 219, National Life (and later its successor Industrial Alliance) alleged Brine had received undisclosed CPP and Superannuation disability benefits resulting in a substantial overpayment of…
Read MoreAny individual, business or organization that uses email, text messages or social networks to promote their products and services should take note of Canada’s Anti-Spam Legislation and its accompanying regulations. Effective July 1, 2014, the…
Read MoreIN THIS ISSUE: Consistent Use: The Collection of Union Members’ Personal Information by their Union by Alison Strachan and Jonah Clements. Single Incident of Offensive and Threatening Facebook Post is Just Cause by Harold Smith, QC. The New Anti-Spam Law –…
Read More