On July 1, 2020, the Agreement between the United States of America, the United Mexican States, and Canada (USMCA) took effect, replacing the North American Free Trade Agreement (NAFTA). While immigration was a subject of negotiations, few changes appear in Chapter 16 (Temporary Entry), which replace the same chapter of NAFTA. Reportedly, United States negotiators sought to restrict or eliminate Chapter 16, while Canadian negotiators sought to expand and modernize the list of qualifying professionals. Ultimately, the status quo emerged as the compromise in the final deal.
Temporary Entry Provisions of USMCA
Grant of Temporary Entry (Article 16.4)
-
USMCA maintains NAFTA’s agreement that the three countries shall grant temporary entry to business persons who are otherwise qualified under their measures related to public health, safety, and national security.
-
The three countries can refuse entry or employment authorization where that person might adversely affect a labor dispute settlement or a person involved in such a dispute.
-
USMCA adds new language clarifying that Chapter 16 does not exempt business persons from requirements such as licensure and mandatory codes of conduct.
-
These provisions apply to all categories below (business visitors, traders and investors, intra-company transferees, and professionals).
Business Visitors (Annex 16-A, Section A; Appendix 1)
-
Businesspersons can engage in a business activity without obtaining employment authorization provided they are able to present:
-
a) proof of citizenship of one of the three countries;
-
b) documentation demonstrating that they will be engaged in permissible business activity and describing the purpose of entry; and
-
c) evidence demonstrating that the proposed business activity is international in scope and that the business person is not seeking to enter the local labor market. This evidentiary requirement can be satisfied by showing:
-
the primary source of remuneration is not from within the destination country; and
-
the business person’s principal place of business and the actual place of accrual of profits, at least predominantly, remain outside the destination country.
-
-
-
Prior approval procedures, petitions, labor certification tests will not be required.
-
Numerical restrictions will not be enacted.
-
Visas may be required. (Note: Canada and the United States currently require Mexican citizens to obtain visas to enter under the provisions of Chapter 16.)
-
Permitted business activities remain the same as NAFTA and can be found in Appendix 1 of the agreement. Commercial Transactions, Public Relations and Advertising, Tourism, Tour Bus Operation, and Translation, which fell under General Services in NAFTA, have their own categories under USMCA.
Traders and Investors (Annex 16-A, Section B)
-
USMCA maintains NAFTA’s agreement to grant temporary entry to business persons who will:
-
a) carry on substantial trade in goods or services principally between the business person’s country of citizenship and the destination country; or
-
(b) 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 is committing substantial capital.
-
-
Such work can be supervisory, executive, or involve essential skills.
-
A visa may be required prior to entry. (Note: Canada and the United States currently require Mexican citizens to obtain visas to enter under the provisions of Chapter 16.)
Intra-Company Transferees (Annex 16-A, Section C)
-
USMCA maintains NAFTA’s agreement to grant temporary entry to a business person employed by an enterprise that seeks to render services to itself, a subsidiary, or affiliate in a managerial, executive, or specialized knowledge capacity.
-
Labor certification tests will not be required.
-
Numerical restrictions will not be enacted.
-
A visa may be required prior to entry. (Note: Canada and the United States currently require Mexican citizens to obtain visas to enter under the provisions of Chapter 16.)
Professionals (Annex 16-A, Section D; Appendix 2)
-
USMCA maintains NAFTA’s agreement to grant temporary entry and provide confirming documentation to a business person seeking to engage in a business activity at a professional level in a profession set out in the professional’s list in Appendix 2. The professional’s list is unchanged from NATFA.
-
Proof of citizenship and documentation demonstrating that the business person will be engaged in a permissible activity is required.
-
No prior approval procedures or labor certification tests will be required.
-
Numerical restrictions will not be enacted.
-
Previous numerical limitations on Mexican professionals entering the United States have been removed based upon prior modifications to NAFTA.
-
-
A visa may be required prior to entry. (Note: Canada and the United States currently require Mexican citizens to obtain visas to enter under the provisions of Chapter 16.)
Temporary Entry Working Group (Article 16.6)
USMCA maintains NAFTA’s Temporary Entry Working Group, which includes representatives from the three countries that meet at least annually, to consider matters such as measures to further facilitate temporary entry among the countries, waiving of labor certification test, issues around dependents, and proposed future modifications of Chapter 16. USMCA adds the use of technology related to the processing of applications as a topic for the working group to consider.