Canada Immigration and Citizenship News

Section B, Traders and Investors, provisions in NAFTA differ from the reference in the CFTA between Canada and the United States. The provisions in NAFTA "broaden this reference to entries to 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."  A visa requirement is allowed under this section and "it is the only category which treats Canadians and Mexicans alike."

  Section C, Intra-Company Transferees, deals with individuals who are transferred within the same enterprise or its affiliate from one Party to another. A Party may require that such business person shall have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission."  The United States maintains this requirement, but Canada and Mexico have chosen to drop it,  which focuses on the national treatment concept mentioned previously. In addition, there is an optional visa requirement, but both Canadian and Mexican employers must file a petition. However, "the Canadians are spared one step in the processing procedure compared to the steps required from a Mexican applicant."  Canadians are allowed to present their petition at a Class A port of entry with their own intra-company transferee application.  "This one-step processing greatly expedites the procedure for the petitioning employer."  In contrast, a Mexican national must process his employer's petition "through one of the four INS regional service centers [where it] typically takes three to four weeks."  Thus, the theme in moving people by not abiding by national treatment continues in section C.

  Section D consists of professionals known as the TN ("Trade NAFTA") category.  The appendix contains a list of sixty-three professions with minimum educational credentials and "only persons coming to work 'in' one of these enumerated professions may be accommodated under the TN category."  Section D states that no Party to NAFTA may require prior approval procedures, petitions, labor certification tests, or other procedures, or impose or maintain any numerical restriction relating to the temporary entry of Section D professionals under NAFTA.  "However, Section D [as with other Sections] preserves the right of a Party to impose a visa requirement on professionals of another Party," ... in addition, "[u]nlike the other sections of Annex 1603 ... Section D allows a Party to establish an annual numerical limit with regard to professionals of another NAFTA Party."

  One can easily note the obvious contradictions just within this section. Canadians can apply for this status when entering the country "without any prior petition or visa approval" just as they could under the CFTA.  Mexicans, on the other hand, have  to meet the same requirements as other professionals under the H-1B status, such as obtaining a labor certification from the DOL and following routine INS procedures.  Canadians entering under TN status can work for a U.S. employer or entity or a foreign employer that provides "prearranged services to a U.S. entity."  However for Mexicans entering under TN status, they may enter for work with a U.S. employer.  In addition, "NAFTA establishes an annual numerical cap on Mexican TN admissions ... [such that] only 5,500 Mexican TN's will be admitted each year for a ten-year period, although the number may be increased by agreement of the U.S. and Mexican governments."  These contradictions are stated within an order to "allow" this disparate treatment between Canadians and Mexicans. "[T]he TN application process for Mexican professionals is far more complex and costly than for Canadian professionals, creating a chilling effect that has held down the number of TN petitions filed by Mexican citizens."

  Scholars comment that this difference in treatment of Canadians and Mexicans throughout annex 1603 is a result of the tightening needed on Mexican immigration to the United States.  For example,

    [t]he premise underlying NAFTA's annual approval limit of 5,500 petitions for Mexican TN nationals is that this quota is needed to prevent a flood of cheap labor from entering the United States to compete with degreed professionals .... NAFTA's contrary premise is that labor conditions in Canada are so favorable compared to the United States that we need not concern ourselves about the entry of a horde of degreed professionals from the North.