CUSMA (NAFTA) Work Permits for US and Mexican Citizens

The North American Free Trade Agreement (NAFTA) was a trilateral trade agreement negotiated between Canada, the United States, and Mexico in 1994. It was superseded by Canada–United States–Mexico Agreement (CUSMA) as of July 1st, 2020.

This new agreement maintains identical provisions for business visitors and workers travelling between the countries as are outlined in CUSMA.

CUSMA establishes five situations wherein an American or Mexican citizen may be eligible for some sort of facilitated access to Canadian work authorization:

• CUSMA Professionals
• CUSMA Intra-Company Transferees
• CUSMA Investors
• CUSMA Traders
• CUSMA Business Visitors

CUSMA Professionals

The CUSMA Professionals provision provides the opportunity for professional workers to apply for a Canadian work permit without the need for a Labour Market Impact Assessment (LMIA). In order to be eligible under this provision, the worker must have work experience in one of the CUSMA Professionals List of Occupations and have an offer of employment to practice the profession with an employer in Canada.

Program Requirements – CUSMA Professionals

In order to qualify for the LMIA-exemption under the CUSMA Professionals provision, a person must be a citizen of either the United States or Mexico. As well, the person must meet CUSMAs definition of professional, meaning they must be qualified in one of the CUSMA Professional Occupations. Professionals must demonstrate the qualification to work in their profession, either by virtue of a degree or certification and evidence of pre-arranged employment with a Canadian employer.

Application Procedure – CUSMA Professionals

Those wishing to apply for a work permit as a CUSMA professional may do so in one of three ways:

• At a Canadian Port of Entry (POE)
• At a Canadian visa office prior to entry to Canada
• If the person is already inside Canada as a temporary resident, they may apply from within the country.

In order to do apply for a work permit as a CUSMA professional, a person must provide the following required documents:

• Proof of American or Mexican citizenship
• Confirmation of pre-arranged employment in Canada
• Proof of Canadian employment indicating the profession of the employment
• Credentials demonstrating their qualifications in their intended profession in Canada

CUSMA Intra-Company Transfers

Under CUSMA, in some circumstances, a citizen of the United States or Mexico may transfer from within their enterprise to an enterprise located in Canada. In transfering to the Canadian enterprise, the employee will be exempt from needing a Labour Market Impact Assessment (LMIA), though they will be required to apply for a Canadian work permit. In order to qualify for this program, both the employee and the enterprise must meet certain requirements.

Program Requirements – CUSMA Intra-Company Transfers

In order to qualify for an LMIA-exemption under the CUSMA Intra-Company Transfers category, a person must be a citizen of either the United States or Mexico. The person must be seeking Canadian employment in an executive capacity, a managerial capacity, or in a position requiring specialized knowledge.

The person must demonstrate that they have held continuous employment in a similar position for a period of at least one-year (full-time) prior to the date of the work permit application. In order to be eligible for the CUSMA Intra-Company Transfer LMIA-exemption, the enterprises conducting the intra-company transfer must demonstrate a qualified relationship. Qualifying categories of relationships between enterprises include parent, branch, subsidiary or affiliate relationships.

Application Procedure – CUSMA Intra-Company Transfers

Those wishing to apply for a work permit as a CUSMA intra-company transferee may do so in one of three ways:

• At a Canadian Port of Entry (POE)
• At a Canadian visa office prior to entry to Canada
• If the person is already inside Canada as a temporary resident, they may apply from within the country.

In order to do apply for a work permit as a CUSMA intra-company transferee, a person must provide the following required documents:

• Proof of American or Mexican citizenship
• Confirmation of current employment by an enterprise outside of Canada
• Proof of one-year of full-time employment completed within the three years prior to the application date
• Proof the Canadian position meets criteria as executive capacity, managerial capacity, or requiring specialized knowledge
• Outline of the position in Canada
• Intended duration of stay in Canada
• Description of the relationship between the enterprise Canada and the American or Mexican enterprise

Work permits for CUSMA intra-company transferees may be issued for a maximum duration of three years. Intra-company transferees may apply for extensions of up to two years.

CUSMA Investors

Under CUSMA, some American and Mexican investors are eligible to apply for a Canadian work permit without the need for a Labour Market Impact Assessment (LMIA). In order to qualify for this LMIA-exemption, an investor must have committed, or is intending to commit, to investing a substantial amount of capital in Canada. As well, the investor’s enterprise must be American or Mexican in terms of nationality.

Program Requirements – CUSMA Investors

In order to qualify for an LMIA-exemption under the CUSMA Investors category, a person must be a citizen of either the United States or Mexico and their enterprise must be American or Mexican in terms of nationality. It should be noted that the nationality of an enterprise is indicated by ownership rather than location of incorporation.

As well, the investor must demonstrate that they have made, or are making, significant investment of capital in Canada. If the applicant is an employee of the enterprise, their position must be in an executive capacity, a supervisory capacity, or require essential skills.

Application Procedure – NAFTA Investors

Those wishing to apply for a work permit as a NAFTA investor should submit applications in advance to a Canadian visa office. While regulations do allow a person to apply for a work permit at a Canadian Port of Entry (POE), due to the complex nature of this type of application it is strongly recommended that applicants submit in advance to a visa office. In order to do apply for a work permit as a NAFTA investor, a person must provide the following required documents:

• Proof of American or Mexican citizenship
• Proof of enterprise nationality as either American or Mexican
• Evidence of investment: financial evidence indicating prior or present possession and control of funds or other capital assets invested in Canada.

Work permits for NAFTA investors may be issued for a maximum duration of one year. Investors may apply for extensions of up to two years.

CUSMA Traders

Under CUSMA, some American and Mexican traders are eligible to apply for a Canadian work permit without the need for a Labour Market Impact Assessment (LMIA). In order to qualify for this LMIA-exemption, a trader must demonstrate their involvement in the substantial trading of goods or services principally carried out between the United States or Mexico, and Canada. As well, the investor’s enterprise must be American or Mexican in terms of nationality.

Program Requirements – CUSMA Traders

In order to qualify for an LMIA-exemption under the CUSMA Traders category, a person must be a citizen of either the United States or Mexico and their enterprise must be American or Mexican in terms of nationality. It should be noted that the nationality of an enterprise is indicated by ownership rather than location of incorporation. As well, the trader must demonstrate their involvement in substantial trading in goods or services. This trading must be carried out principally between the United States or Mexico, and Canada. The applicant’s position must be in an executive capacity, a supervisory capacity, or require essential skills.

Application Procedure – NAFTA Traders

Those wishing to apply for a work permit as a NAFTA trader should submit applications in advance to a Canadian visa office. While regulations do allow a person to apply for a work permit at a Canadian Port of Entry (POE), due to the complex nature of this type of application it is strongly recommended that applicants submit in advance to a visa office. In order to do apply for a work permit as a NAFTA trader, a person must provide the following required documents:

• Proof of American or Mexican citizenship
• Proof of enterprise nationality as either American or Mexican
• Evidence of participating in substantial trade of goods or services, principally with Canada
• Proof position meets the requirements of being executive capacity, supervisory capacity, or requiring essential skills.

Work permits for NAFTA traders may be issued for a maximum duration of one year. Traders may apply for extensions of up to two years.

CUSMA Business Visitors

Under the agreement, some American and Mexican businesspeople are eligible to enter Canada to temporarily engage in international business activities without requiring a Canadian work permit nor a Labour Market Impact Assessment (LMIA). In order to be eligible as a business visitor, a person must be carrying out business activities which are international in scope. The business visitor must maintain that their primary source of remuneration and principal place of business is outside of Canada. The business visitor cannot have any intention to enter the Canadian labour market.

Program Requirements – CUSMA Business Visitors

In order to qualify for an LMIA-exemption and work permit exemption under the CUSMA Business Visitors category, a person must be a citizen of either the United States or Mexico. The scope of this person’s business activities must be international. This provision is highly dependent on the business visitor demonstrating that they have no intention of entering the Canadian labour market. For this reason, business visitors will be required to prove that their primary source of remuneration and principal place of business are outside of Canada.

Application Procedure – CUSMA Business Visitors

Those wishing to enter Canada as a CUSMA business visitor may only apply at a Canadian Port of Entry (POE). Business visitors will be evaluated at POEs and cannot submit applications in advance. In order to apply to enter Canada as a CUSMA business visitor, a person must provide the following required documents:

• Proof of American or Mexican citizenship
• Documentation support entry for the purpose of business activities
• Evidence that business activity is international in scope
• Proof that primary source of remuneration is outside of Canada
• Proof that the business location is outside of Canada

Due to the nature of activities authorizing entry as a CUSMA business visitor, entry granted to Canada is only authorized for short-term periods, unless there are extenuating circumstances.

CUSMA Professionals Occupation List

The following occupations are considered professional occupations under CUSMA. Professionals in this category who meet the additional requirements for CUSMA professionals may be eligible for LMIA-exemption to work in Canada.

CUSMA Definition of Terms

Executive Capacity

In order to meet the definition of executive capacity, a position must meet some or all of the following criteria:

• directs the management of the organization or a major component or function of the organization;
• establishes the goals and policies of the organization, component, or function;
• exercises wide latitude in discretionary decision-making; and
• receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Managerial Capacity

In order to meet the definition of managerial capacity, a position must meet some or all of the following criteria:

• manages the organization, or a department, subdivision, function, or component of the organization;
• supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
• has the authority to hire and fire or recommend those, as well as other, personnel actions (such as promotion and leave authorization); if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and
• exercises discretion over the day-to-day operations of the activity or function for which the employee has the authority.

Specialized Knowledge

In order to meet the definition of specialized knowledge, a position must require both proprietary knowledge and advanced expertise. These are defined through CUSMA as the following:

• Proprietary Knowledge: “company-specific expertise related to a company’s product or services. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service.”
• Advanced Expertise: “specialized knowledge gained through significant (i.e. the longer the experience, the more likely the knowledge is indeed “specialized”) and recent (i.e. within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.”

Essential Skills

Essential skills refer to skills which are vital to the operation of an enterprise. These skills generally require an advanced level of knowledge or expertise which would not be possessed by the average skilled worker.

Supervisory Capacity

A supervisor directs, controls, and/or manages the activities of subordinate employees. Under this definition, a supervisor does not frequently engage in hands-on activities. As well, a first-line supervisor generally does not qualify in this category.