Organization of American States - Trade Unit
Chapter Sixteen Temporary Entry for Business Persons
Article 1601: General Principles
Further to Article 102 (Objectives), the provisions of this
Chapter reflect the preferential trading relationship between the
Parties, the desirability of facilitating temporary entry on a
reciprocal basis and of establishing transparent criteria and
procedures for temporary entry, and the need to ensure border
security and to protect the domestic labor force and permanent
employment in their respective territories.
Article 1602: General Obligations
1. Each Party shall apply its measures relating to the
provisions of this Chapter in accordance with Article 1601, and
in particular, shall apply expeditiously such measures so as to
avoid unduly impairing or delaying trade in goods or services or
conduct of investment activities under this Agreement.
2. The Parties shall endeavor to develop and adopt common
criteria, definitions and interpretations for the implementation
of this Chapter.
Article 1603: Grant of Temporary Entry
1. Each Party shall grant, in accordance with this Chapter,
including Annex 1603, temporary entry to business persons who are
otherwise qualified for entry under applicable measures relating
to public health and safety and national security.
2. A Party may refuse to issue an immigration document
authorizing employment to a business person where the temporary
entry of that person might affect adversely:
(a) the settlement of any labor dispute that is in progress
at the place or intended place of employment; or
(b) the employment of any person who is involved in such
dispute.
3. When a Party refuses pursuant to paragraph 2 to issue an
immigration document authorizing employment, it shall:
(a) inform in writing the business person of the reasons
for the refusal; and
(b) promptly notify in writing the Party whose business
person has been refused entry of the reasons for the
refusal.
4. Each Party shall limit any fees for processing applications
for temporary entry of business persons to the approximate cost
of services rendered.
Article 1604: Provision of Information
1. Further to Article 1802 (Publication), each Party shall:
(a) provide to the other Parties such materials as will
enable them to become acquainted with its measures
relating to the provisions of this Chapter; and
(b) not later than one year after the date of entry into
force of this Agreement, prepare, publish and make
available in its own territory, and in the territories
of the other Parties, explanatory material in a
consolidated document regarding the requirements for
temporary entry under this Chapter in such a manner as
to enable business persons of the other Parties to
become acquainted with them.
2. Subject to Annex 1604.2, each Party shall collect and
maintain, and make available to the other Parties in accordance
with its domestic law, data respecting the granting of temporary
entry under this Chapter to business persons of the other Parties
who have been issued immigration documentation, including that
specific to each occupation, profession or activity.
Article 1605: Working Group
1. The Parties hereby establish a Temporary Entry Working
Group, comprising representatives of each Party, including
immigration officials.
2. The Working Group shall meet at least once a year to
consider:
(a) the implementation and administration of this
Chapter;
(b) the development of measures to further facilitate
temporary entry of business persons on a reciprocal
basis;
(c) the waiving of labor certification tests or procedures
of similar effect for spouses of business persons who
have been granted temporary entry for more than one
year under Sections B, C, or D of Annex 1603; and
(d) proposed modifications of or additions to this
Chapter.
Article 1606: Dispute Settlement
A Party may not initiate proceedings under Article 2007
regarding a refusal to grant temporary entry under this Chapter
or a particular case arising under Article 1602(1) unless:
(a) the matter involves a pattern of practice; and
(b) the business person has exhausted available
administrative remedies regarding the particular
matter, provided that such remedies shall be deemed to
be exhausted if a final determination in the matter has
not been issued by the competent authority within one
year of the institution of an administrative
proceeding, and the failure to issue a determination is
not attributable to delay caused by the business
person.
Article 1607: Relation to Other Chapters
Except for Chapter One (Objectives), Chapter Two (General
Definitions), Chapter Twenty (Institutional Arrangements and
Dispute Settlement), Chapter Twenty-Two (Final Provisions) and
Articles 1801 through 1804, no provision of any other Chapter
shall impose any obligation upon a Party regarding its
immigration measures.
Article 1608: Definitions
For purposes of this Chapter:
business person means a citizen of a Party who is engaged in the
trade in goods, the provision of services or the conduct of
investment activities;
citizen means "citizen" as defined in Annex 1608;
existing means "existing" as defined in Annex 1608; and
temporary entry means entry into the territory of a Party by a
business person of another Party without the intent to establish
permanent residence.
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ANNEX 1603
Temporary Entry for Business Persons
Section A - Business Visitors
1. Each Party shall grant temporary entry to a business person
seeking to engage in a business activity set out in Schedule I,
without requiring that person to obtain an employment
authorization, provided that the business person otherwise
complies with existing immigration measures applicable to
temporary entry, upon presentation of:
(a) proof of citizenship of a Party;
(b) documentation demonstrating that the business person
will be so engaged 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.
2. Each Party shall provide that a business person may satisfy
the requirements of paragraph 1(c) by demonstrating that:
(a) the primary source of remuneration for the proposed
business activity is outside the territory of the Party
granting temporary entry; and
(b) the business person's principal place of business and
the actual place of accrual of profits, at least
predominantly, remain outside such territory. A Party
shall normally accept an oral declaration as to the
principal place of business and the actual place of
accrual of profits. If the Party requires further
proof, it shall normally consider a letter from the
employer attesting to these matters as sufficient
proof.
3. Each Party shall grant temporary entry to a business person
seeking to engage in a business activity other than those set out
in Schedule I, without requiring that person to obtain an
employment authorization, on a basis no less favorable than that
provided under the existing provisions of the measure set out in
Appendix 1603.A, provided that the business person otherwise
complies with existing immigration measures applicable to
temporary entry.
4. No Party shall:
(a) as a condition for temporary entry under paragraphs 1
or 3, require prior approval procedures, petitions,
labor certification tests, or other procedures of
similar effect; or
(b) impose or maintain any numerical restriction relating
to temporary entry under paragraphs 1 or 3.
5. Notwithstanding paragraph 4, a Party may require a business
person seeking temporary entry under this Part to obtain a visa
or its equivalent prior to entry. Before imposing a visa
requirement, such Party shall consult with a Party whose business
persons would be affected with a view to avoiding the imposition
of the requirement. With respect to an existing visa
requirement, a Party shall, at the request of a Party whose
business persons are subject to the requirement, consult with
that Party with a view to its removal.
Section B - Traders and Investors
1. Each Party shall grant temporary entry and provide
confirming documentation to a business person seeking to:
(a) carry on substantial trade in goods or services
principally between the territory of the Party of which
the business person is a citizen and the territory of
the Party into which entry is sought; 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 has committed, or is in the process of
committing, a substantial amount of capital, in a
capacity that is supervisory, executive or involves
essential skills,
provided that the business person otherwise complies with
existing immigration measures applicable to temporary entry.
2. No Party shall:
(a) as a condition for temporary entry under paragraph 1,
require labor certification tests or other procedures
of similar effect; or
(b) impose or maintain any numerical restriction relating
to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business
person seeking temporary entry under this Part to obtain a visa
or its equivalent prior to entry.
Section C - Intra-Company Transferees
1. Each Party shall grant temporary entry and provide
confirming documentation to a business person employed by an
enterprise who seeks to render services to that enterprise or a
subsidiary or affiliate thereof, in a capacity that is
managerial, executive, or involves specialized knowledge,
provided that the business person otherwise complies with
existing immigration measures applicable to temporary entry. A
Party may require that such business person shall have been
employed continuously by such enterprise for one year within the
three-year period immediately preceding the date of the
application for admission.
2. No Party shall:
(a) as a condition for temporary entry under paragraph 1,
require labor certification tests or other procedures
of similar effect; or
(b) impose or maintain any numerical restriction relating
to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business
person seeking temporary entry under this Part to obtain a visa
or its equivalent prior to entry. Before imposing a visa
requirement, such Party shall consult with a Party whose business
persons would be affected with a view to avoiding the imposition
of the requirement. With respect to an existing visa
requirement, a Party shall, at the request of a Party whose
business persons are subject to the requirement, consult with
that Party with a view to its removal.
Section D - Professionals
1. Each Party shall 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 Schedule II, if the business person otherwise complies
with existing immigration measures applicable to temporary entry,
upon presentation of:
(a) proof of citizenship of a Party; and
(b) documentation demonstrating that the business person
will be so engaged and describing the purpose of entry.
2. No Party shall:
(a) as a condition for temporary entry under paragraph 1,
require prior approval procedures, petitions, labor
certification tests, or other procedures of similar
effect; or
(b) impose or maintain any numerical restriction relating
to temporary entry under paragraph 1.
3. Notwithstanding paragraph 2, a Party may require a business
person seeking temporary entry under this Part to obtain a visa
or its equivalent prior to entry. Before imposing a visa
requirement, such Party shall consult with a Party whose business
persons would be affected with a view to avoiding the imposition
of the requirement. With respect to an existing visa
requirement, a Party shall, upon the request of a Party whose
business persons are subject to the requirement, consult with
that Party with a view to its removal.
4. Notwithstanding paragraphs 1 and 2, a Party may establish an
annual numerical limit, which shall be set out in Schedule III,
regarding temporary entry of business persons of another Party
seeking to engage in business activities at a professional level
in a profession set out in Schedule II, if the Parties concerned
have not agreed otherwise prior to the entry into force of this
Agreement for such Parties. In establishing such a limit, such
Party shall consult with the other Party concerned.
5. A Party establishing a numerical limit pursuant to paragraph
4, unless the Parties concerned agree otherwise:
(a) shall, for each year after the first year after the
date of entry into force of this Agreement, consider
increasing the numerical limit set out in Schedule III
by an amount to be established in consultation with the
other Party concerned, taking into account the demand
for temporary entry under this Part;
(b) shall not apply its procedures established pursuant to
paragraph 1 to the temporary entry of a business person
subject to the numerical limit, but may require such
business person to comply with its other procedures
applicable to the temporary entry of professionals; and
(c) may, in consultation with the other Party concerned,
grant temporary entry under paragraph 1 to a business
person who practices in a profession where
accreditation, licensing, and certification
requirements are mutually recognized by such Parties.
6. Nothing in paragraphs 4 or 5 shall be construed so as to
limit the ability of a business person to seek temporary entry
under a Party's applicable immigration measures relating to the
entry of professionals other than those adopted or maintained
pursuant to paragraph 1.
7. Three years after a Party establishes a numerical limit
pursuant to paragraph 4, it shall consult with the other Party
concerned with a view to determining a date after which the limit
shall cease to apply.
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ANNEX 1604.2
Provision of Information
The obligations under Article 1604(2) shall take effect with
respect to Mexico one year after the date of entry into force of
this Agreement.
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ANNEX 1608
Country - Specific Definitions
For purposes of this Chapter:
citizen means, with respect to Mexico, a national or a citizen
according to the existing provisions of Articles 30 and 34,
respectively, of the Mexican Constitution; and
existing means, as between:
(a) Canada and Mexico, and the United States and Mexico, in
effect upon the date of entry into force of this
Agreement; and
(b) Canada and the United States, in effect on January 1,
1989.
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Appendix 1603.A
Existing Immigration Measures
1. In the case of Canada, the Immigration Act, R.S.C. 1985 c.I-
2, as amended, and subsection 19(1) of the Immigration
Regulations, 1978, as amended.
2. In the case of the United States, Section 101(a)(15)(B) of
the Immigration and Nationality Act, 1952, as amended.
3. In the case of Mexico, Chapter III of the Ley General de
Poblacion, 1974, as amended.
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Schedule I
Research and Design
- Technical, scientific, and statistical researchers conducting
independent research, or research for an enterprise located in
the territory of another Party.
Growth, Manufacture and Production
- Harvester owner supervising a harvesting crew admitted under
applicable law.
- Purchasing and production management personnel conducting
commercial transactions for an enterprise located in the
territory of another Party.
Marketing
- Market researchers and analysts conducting independent research
or analysis, or research or analysis for an enterprise located in
the territory of another Party.
- Trade fair and promotional personnel attending a trade
convention.
Sales
- Sales representatives and agents taking orders or negotiating
contracts for goods or services for an enterprise located in the
territory of another Party but not delivering goods or providing
services.
- Buyers purchasing for an enterprise located in the territory of
another Party.
Distribution
- Transportation operators transporting goods or passengers to
the territory of a Party from the territory of another Party or
loading and transporting goods or passengers from the territory
of a Party to the territory of another Party, with no loading and
delivery within the territory of the Party into which entry is
sought of goods located in or passengers boarding in that
territory.
- With respect to temporary entry into the territory of the
United States, Canadian customs brokers performing brokerage
duties relating to the export of goods from the territory of the
United States to or through the territory of Canada; with respect
to temporary entry into the territory of Canada, United States
customs brokers performing brokerage duties relating to the
export of goods from the territory of Canada to or through the
territory of the United States.
- Customs brokers consulting regarding the facilitation of the
import or export of goods.
After-Sales Service
- Installers, repair and maintenance personnel, and supervisors,
possessing specialized knowledge essential to a seller's
contractual obligation, performing services or training workers
to perform such services, pursuant to a warranty or other service
contract incidental to the sale of commercial or industrial
equipment or machinery, including computer software, purchased
from an enterprise located outside the territory of the Party
into which temporary entry is sought, during the life of the
warranty or service agreement.
General Service
- Professionals engaging in a business activity at a professional
level in a profession set out in Schedule II.
- Management and supervisory personnel engaging in a commercial
transaction for an enterprise located in the territory of another
Party.
- Financial services personnel (insurers, bankers or investment
brokers) engaging in commercial transactions for an enterprise
located in the territory of another Party.
- Public relations and advertising personnel consulting with
business associates, and attending or participating in
conventions.
- Tourism personnel (tour and travel agents, tour guides or tour
operators) attending or participating in conventions or
conducting a tour that has begun in the territory of another
Party.
- Tour bus operators entering the territory of a Party:
(a) with a group of passengers on a bus tour that has begun
in, and will return to, the territory of another Party;
(b) to meet a group of passengers on a bus tour that will
end, and the predominant portion of which will take
place, in the territory of another Party; or
(c) with a group of passengers on a bus tour to be unloaded
in the territory of the Party into which temporary
entry is sought, and returning with no passengers or
reloading with such group for transportation to the
territory of another Party.
- Translators or interpreters performing services as employees of
an enterprise located in the territory of another Party.
Definitions
For purposes of this Schedule:
territory of another Party means the territory of a Party other
than the territory of the Party into which temporary entry is
sought;
tour bus operator means a natural person, including relief
personnel accompanying or following to join, necessary for the
operation of a tour bus for the duration of a trip; and
transportation operator means a natural person, other than a tour
bus operator, including relief personnel accompanying or
following to join, necessary for the operation of a vehicle for
the duration of a trip.
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Schedule II
PROFESSION
Accountant
Architect
Computer Systems Analyst
MINIMUM EDUCATION REQUIREMENTS
AND ALTERNATIVE CREDENTIALS
Baccalaureate or Licenciatura
Degree; or C.P.A., C.A.,
C.G.A., C.M.A.
Baccalaureate or Licenciatura
Degree; or state/provincial
license
Baccalaureate or Licenciatura
Degree; or Post-Secondary
Diploma or Post-Secondary
Certificate, and three years
experience
Disaster Relief Insurance
Claims Adjuster (claims
adjuster employed by an
insurance company located in
the territory of a Party, or
an independent claims
adjuster)
Economist
Engineer
Forester
Graphic Designer
Hotel Manager
Industrial Designer
Interior Designer
Land Surveyor
Baccalaureate or Licenciatura
Degree, and successful
completion of training in the
appropriate areas of insurance
adjustment pertaining to
disaster relief claims; or
three years of experience in
claims adjustment, and
successful completion of
training in the appropriate
areas of insurance adjustment
pertaining to disaster relief
claims
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree; or state/provincial
license
Baccalaureate or Licenciatura
Degree; or state/provincial
license
Baccalaureate or Licenciatura
Degree; or Post-Secondary
Diploma or Post-Secondary
Certificate, and three years
experience
Baccalaureate or Licenciatura
Degree in hotel/restaurant
management; or Post-Secondary
Diploma or Post-Secondary
Certificate in
hotel/restaurant management,
and three years experience in
hotel/restaurant management
Baccalaureate or Licenciatura
Degree; or Post-Secondary
Diploma or Post-Secondary
Certificate, and three years
experience
Landscape Architect
Lawyer (including Notary in
the Province of Quebec)
Librarian
Management Consultant
Mathematician
(including Statistician)
MEDICAL/ALLIED PROFESSIONAL
Dentist
Dietitian
Baccalaureate or Licenciatura
Degree
LL.B., J.D., LL.L., B.C.L., or
Licenciatura Degree (five
years); or membership in a
state/provincial bar
M.L.S. or B.L.S. (for which
another Baccalaureate or
Licenciatura Degree was a
prerequisite)
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
Baccalaureate or Licenciatura
Degree
D.D.S., D.M.D., Doctor en
Odontologia, or Doctor en
Cirugia Dental; or
state/provincial license
Baccalaureate or Licenciatura
Degree; or state/provincial
license
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Medical Laboratory
Technologist (Canada)/Medical
Technologist (United States
and Mexico)
Nutritionist
Occupational Therapist
Pharmacist
Physician (teaching or
research only)
Physiotherapist/Physical
Therapist
Psychologist
Recreational Therapist
Registered Nurse
Veterinarian
Research Assistant
(Working in a post-secondary
Baccalaureate or Licenciatura
Degree; or Post-Secondary
Diploma or Post-Secondary
Certificate, and three years
experience
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree; or state/provincial
license
Baccalaureate or Licenciatura
Degree; or state/provincial
license
M.D. or Doctor en Medicina; or
state/provincial license
Baccalaureate or Licenciatura
Degree; or state/provincial
license
State/provincial license or
Licenciatura Degree
Baccalaureate or Licenciatura
Degree
State/provincial license or
Licenciatura Degree
D.V.M., D.M.V., or Doctor en
Veterinaria; or
state/provincial license
Range Manager/
Range Conservationalist
Research Assistant
(Working in a post-secondary
educational institution)
Scientific
Technician/Technologist
SCIENTIST
Agriculturist (including
Agronomist)
Animal Breeder
Animal Scientist
Apiculturist
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Possession 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
such disciplines, or the
ability to apply principles of
any of such disciplines to
basic or applied research
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Astronomer
Biochemist
Biologist
Chemist
Dairy Scientist
Entomologist
Epidemiologist
Geneticist
Geologist
Geochemist
Geophysicist (including
Oceanographer in Mexico and
the United States)
Horticulturist
Meteorologist
Pharmacologist
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Pharmacologist
Physicist (including
Oceanographer in Canada)
Plant Breeder
Poultry Scientist
Soil Scientist
Zoologist
Social Worker
Sylviculturist
(including Forestry
Specialist)
TEACHER
College
Seminary
University
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
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Technical Publications Writer
Urban Planner
(including Geographer)
Vocational Counsellor
Baccalaureate or Licenciatura
Degree; or Post-Secondary
Diploma or Post-Secondary
Certificate, and three years
experience
Baccalaureate or Licenciatura
Degree
Baccalaureate or Licenciatura
Degree
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Schedule III
United States of America
1. Commencing on the date of entry into force of this Agreement
as between the United States and Mexico, the United States shall
annually approve as many as 5,500 initial petitions of business
persons of Mexico seeking temporary entry under Section D of
Annex 1603 to engage in a business activity at a professional
level in a profession set out in Schedule II.
2. For purposes of paragraph 1, the United States shall not
take into account:
(a) the renewal of a period of temporary entry;
(b) the entry of a spouse or children accompanying or
following to join the principal business person;
(c) an admission under Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 1952, as amended,
including the worldwide numerical limit established by
Section 214(g)(1)(A) of such Act; or
(d) an admission under any other provision of Section
101(a)(15) of such Act relating to the entry of
professionals.
3. Paragraphs 4 and 5 of Section D of Annex 1603 shall apply as
between the United States and Mexico for no longer than:
(a) the period that such paragraphs or similar provisions
may apply as between the United States and any other
Party or non-Party; or
(b) 10 years after the date of entry into force of this
Agreement as between such Parties,
whichever period is shorter.
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