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Washington Employment Law Letter November 2002 Northern Exposure NAFTA AND AMERICAN BUSINESS TRAVELERS TO
CANADA Naseem Malik, Brian P. Smeenk Copyright ?span style="mso-spacerun: yes"> 2002 M.
Lee Smith Publishers LLC; Naseem Malik, Brian P. Smeenk NAFTA
applies to four main categories of individuals. Employers, however, are
usually interested in the following three categories: business visitors,
intracompany transfers, and professionals. Here's a summary of
how those individuals can take
advantage of the relaxed rules. Business
visitors
NAFTA business visitors are allowed to conduct certain types of
business activities in Canada without a work permit. The general
types of business activities that fall under this category include
marketing/promotions, research and design, and sales and after-sales
services. NAFTA business visitors can travel to Canada to
consult, negotiate, research, participate in business meetings and
conventions, and solicit business.
To qualify as NAFTA business visitors, your employees must be
American or Mexican citizens. The Act doesn't apply to American
permanent residents (e.g., green card holders). It also doesn't apply to
non-Americans who are currently employed on work permits in the United
States.
If your employees want to be considered NAFTA business visitors,
they should apply for that status when arriving at the port of entry in Canada.
They must have supporting documents, including support letters from your
organization and corporate identification such as business cards. The
support letters should describe the nature of the activities that
they'll pursue while in Canada.
If your employees will make several trips to Canada over a
short period of time, they may ask the immigration officer to issue a
document called a visitor record, which classifies them as NAFTA
business visitors. Intracompany
transfers
NAFTA intracompany transfers may move from their employer in the
United States or Mexico to a legally related company in Canada
(e.g., a subsidiary, sister/affiliate, parent, or branch) if they meet a
number of criteria:
- the employee must be an American or Mexican citizen; and
- in the previous three-year period, the employee must have been
employed by your company for at least one year in an executive,
managerial capacity or a special-knowledge category (generally, middle
managers don't qualify).
If your employees qualify as NAFTA intracompany transfers, they
may be employed as executive or managerial employees in Canada
for up to seven years. But those in the "specialized
knowledge" category could be employed in Canada for only
five years.
All such employees must apply for a work permit when arriving at
the port of entry in Canada or at a Canadian consulate in the
United States. NAFTA
professionals
Some of your employees may qualify as NAFTA professionals.
There is a list of more than 60 professional occupations covered
by the category. If their profession is on the list, they're
American or Mexican citizens, and they've secured employment with a
Canadian employer, they could qualify as NAFTA professionals.
Unlike NAFTA business visitors, NAFTA professionals must
have work permits. But they may not need to have an employment
validation. Your professionals can apply for the status at either
Canadian consulate in the United States or a border point. What does
this all mean?
As
an employer sending American and Mexican citizens to Canada on
business, you'll likely find NAFTA to be of much assistance. You mustn't
forget, however, that restrictions and requirements will still affect
your employees' abilities to legally enter the country. As a
result, you should continue to consult with a Canadian immigration
lawyer before sending your employees to Canada for
business-related purposes.
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