The future of the North American Free Trade Agreement (NAFTA), including NAFTA’s immigration-related provisions allowing cross-border mobility between Canada, the U.S. and Mexico, is uncertain. But for now, it’s still in play. In its current form, NAFTA allows qualified U.S. and Mexican citizens in certain “designated professions” to temporarily enter Canada for work under the “NAFTA professional work permit” without requiring the employer to obtain the federal government’s permission in the form of a Labour Market Impact Assessment (LMIA). Avoiding the LMIA process is a significant benefit for employers, saving them time, effort – and money. The financial savings can be significant: the federal government charges employers a non-refundable fee (currently $1,000) for each position it seeks to fill with a foreign national for which an LMIA is required; this is in addition to any legal fees an employer might incur for advice in the preparation or review of its LMIA application.

Here are the answers to five questions that Canadian employers seeking to recruit professional foreign nationals from the U.S. and Mexico frequently ask about the NAFTA professional work permit path to Canada.

1. What are the criteria to qualify for a NAFTA professional work permit?

An applicant must satisfy all of these criteria to qualify for a NAFTA professional work permit:

• Be a U.S. or Mexico citizen.
• Be a member of a “designated profession”.
• Hold the required qualification to work in that profession (a degree or certification in a related educational program).
• Have pre-arranged employment with a Canadian employer.
• Be providing professional level services in their field (for example, a lawyer would not qualify for a permit to enter and perform the duties of a CEO).
• Be in compliance with existing immigration requirements for temporary entry.

An immigration medical isn’t required for most professions before applying for a NAFTA professional work permit – but it is required for those that work in a medical setting, such as dentists and physicians. The purpose of the medical at the work permit stage is to protect public health in Canada.

2. What are the “designated professions” under NAFTA?

 

Generally, the professional work permit is intended for professionals with some level of advanced education. NAFTA (in Appendix 1603.D.1) currently lists 63 “designated professions”, including health-care professionals (such as physicians and dentists), scientists, teachers, engineers, accountants, lawyers and management consultants. NAFTA also sets out the minimum education requirements and alternative credentials for each designated professional category and, in some cases, the minimum number of years of required experience in their profession. For example:

• Dentists, physicians, engineers and lawyers require a minimum education of, “Baccalaureate or Licenciatura Degree; or state/provincial license”; none require minimum experience, so recent graduates of these professions are eligible for NAFTA professional work permits (so long as they have a qualifying job offer).

• Management consultants require either a Baccalaureate or Licenciatura Degree, or equivalent professional experience as established by “statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement”. So Management Consultants can be eligible without a Bachelor Degree so long as they have a minimum of 5 years working experience in the relevant field (and a qualifying job offer).

• Scientific technicians/technologists, however, aren’t required to meet any minimum educational requirements; rather, their work experience must meet this criteria: “[p]ossession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research”. They must also work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics (for example, an engineering technologist must be working in direct support of an engineering professional).

3. How does an applicant for a NAFTA professional work permit apply at the “port of entry”?

Both U.S. and Mexican citizens can apply for work permits at a Canadian port of entry (POE): an airport or land crossing into Canada. In general, an individual applying for a work permit at a POE is expected to present all of these documents:

• Proof of citizenship (normally a passport).
• An employment contract or offer of employment confirming pre-arranged employment with a Canadian enterprise. The contract or offer should include details of the position (including the title, duties, duration of employment and payment arrangements) and the required educational qualifications.
• Evidence they have the required educational credentials; this could be copies of degrees, diplomas, professional licences, detailed resume and so on.

For a NAFTA professional work permit applicant, it’s also helpful to offer additional proof they are qualified to work in Canada in their profession. Thus it’s best if the applicant also brings copies of key correspondence with their Canadian regulatory body and of any conditional approval for a professional license they’ve received.

4. Can a person who enters Canada on a NAFTA professional work permit be self-employed in Canada?

 

No: to be eligible for a NAFTA professional work permit, the applicant and must have pre-arranged employment in Canada – and can’t be self-employed. The policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff for purposes of NAFTA’s International Mobility Program specifically prohibits NAFTA professional work permit immigrants from “hanging out a shingle” in Canada, and requires the Canadian employer to be “separate” from the work permit applicant. Non-Canadians seeking to enter Canada on the basis of self-employment must apply under another category.

 

5. When can a NAFTA professional work permit holder apply for permanent residence in Canada?

 

Temporary entry lays the foundation for a permanent residence application: after working in Canada for one year, NAFTA professional work permit holders can apply for permanent residence status in Canada through the Federal Skilled Worker (FSW) Program  or the Canadian Experience Class. Depending on the province in which the applicant seeks to reside, the applicable Provincial Nominee Program or the Atlantic Immigration Pilot Program, neither of which usually require one year of Canadian work experience to qualify, might also be a good option to pursue permanent residence status.

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Please contact your McInnes Cooper lawyer or any member of the Immigration Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

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McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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