Canada Immigration and Citizenship News

II. Annex to Chapter 16--Immigration Provisions

  The majority of the volume of information within chapter 16 is found in annex 1603 on "Temporary Entry for Business Persons." Annex 1603 is composed of four parts: section A on business visitors, section B on traders and investors, section C on intra-company transferees, and section D on professionals.

  "Section A ... requires the UNITED STATES, Canada and Mexico to grant temporary entry to a business person from another NAFTA party who is otherwise qualified and who seeks to engage in an occupation or profession within one of the seven categories of business activities listed in Appendix 1603.1." The categories consist of the following: research and design; growth, manufacture and production; marketing; sales; distribution; after-sales service; and general service.  This list is not exclusive. Thus, a business visitor may be allowed to enter for the purpose of a business not listed in appendix 1603.1 "as long as the activity is consistent with existing immigration measures applicable to temporary entry to that country."

  Although section A appears to be rather self-explanatory, there are hidden differences within regarding treatment to Canadians and Mexicans. "Prior to the NAFTA, Canadian citizens were not required to obtain a visa for entry into the United States, not even to present a passport at the border."  Even today with the implementation under NAFTA, the procedures allowing Canadians to enter the United States are still relatively relaxed. This is due to the fact that the provisions for Canadians under NAFTA are quite similar to the ones under the U.S.-Canadian Free Trade Agreement (CFTA) regarding the movement of people. In fact, "Canadians will be treated no less favorably under NAFTA than they have been treated under the FTA."

  Alternatively, for as far as Mexicans entering the United States, the same procedures of requiring a valid passport or visa are still strongly enforced. In addition, when a professional enters the United States under NAFTA he must show that he is a citizen of either Canada or Mexico. "Mexican citizens are persons who have Mexican nationality, *671 have reached the age of 18, and have an honest means of livelihood." Interestingly enough, "[n]o definition of what constitutes a Canadian citizen appears in NAFTA."  Thus, the drafters made more than obvious the difference in treatment of Canadians over Mexicans. "Although the NAFTA includes Mexico in the preferential trading relationship established by the FTA, Chapter 16 does not offer Mexican citizens as easy entry to the United States as it offers Canadians." One possible explanation for this inconsistency is that the U.S. negotiators were concerned about the accession clause in NAFTA, "and that any advantages given Mexicans would be available without further negotiations to citizens of countries acceding to the NAFTA in the future."  Another explanation scholars have mentioned is that the 1990 enactment of the amended Immigration and Nationality Act that changed U.S. immigration law makes some entries much more difficult.  Thus, with the implementation of the new law there was no choice for the drafters but to follow these new measures of U.S. immigration law.

  These differences in treatment between Mexicans and Canadians under NAFTA regarding immigration are found in various sections under annex 1603, but they do not appear to be consistent with the goals of NAFTA according to the provisions concerning national treatment.  Article 301 states the following:

                1. Each Party shall accord national treatment to the goods of another party ...

                2. The provisions of paragraph 1 regarding national treatment shall mean, with respect to a state or province, treatment no less favorable than the most favorable treatment accorded by such state or province to any like, directly competitive or substitutable goods, as the case may be, of the Party of which it forms a part.

  Thus, if the parties are to accord national treatment to the goods of another, then how can this be plausible if they are not according national treatment from an immigration perspective? Goods are often transported by particularly skilled people, so if the countries do not have reciprocal requirements involving the movement of people, then clearly, national treatment is not being followed. By implication, one would think this standard of treatment also applies to services since they can be seen as the goods of a country. Therefore, the provisions of chapter 16 appear to be the exception to this standard.