Temporary Entry of Business Persons - Chapter 16

The Temporary Entry Working Group (TEWG) met in November 1995 in Washington, D.C., and in November 1996 in Ottawa, Canada, in fulfilment of its obligations under Article 1605. The meetings provide the opportunity to discuss issues arising from the application of Chapter 16 of the NAFTA by each party and to develop common understanding among the three Parties.

The Parties met their obligations under Article 1604. 2, relating to the exchange of statistical data regarding the temporary entry of business persons into their respective territories. Each Party also exchanged information on its procedures for the temporary entry of business persons (1995, 1996). Mexico fulfilled its commitment under Article 1604.1(b) to publish explanatory material on the temporary entry of business persons into Mexico under NAFTA (1995). The Parties signed a protocol for administering Article 1603.3(b), stipulating the information to be shared in cases where entry is refused because of adverse impact on the settlement of a labour dispute in the receiving Party (1995).

In considering the addition of occupations to the professionals' list in the NAFTA in 1995, the United States requested technical information about the temporary entry of nurses and other healthcare professionals into Canada and Mexico from the United States and labour market conditions for registered nurses in both countries. The U.S. and Canada exchanged information on the entry of nurses into their respective countries. In reviewing the possible addition of occupations to the professionals' list in 1996, the United States indicated that there is a need for the Parties to come to a common understanding of how modifications are made to Chapter 16. The United States seeks clarification that, after reaching consensus among the three Parties, occupations could be deleted from the list of professionals, as well as added or modified. Both Mexico and Canada maintain that the main purpose of the Agreement should be expansion. Issue papers on the interpretation of Article 1605.2(d) were exchanged, and Mexico agreed to undertake further internal consultations on this issue. Further discussion by the TEWG will be required.

Recognizing the difficulties in moving issues forward within the TEWG and seeking to streamline processes involved in external consultations and internal processes, a subgroup was created to analyze procedures by which outside groups may approach the TEWG and how the TEWG should respond, and how the TEWG should manage its internal affairs regarding Chapter 16 for each country (1995). The Parties continued to explore closer harmonization, including the manner in which it deals with associations seeking coverage. The TEWG initiated a process to reach agreement on interpretations of Chapter 16 and to streamline its processes with a view to improving the workings of the group. The Parties are committed to improving the administration and procedure of the working group to move agenda items forward. A number of mechanisms were suggested and agreed to, includingstricter adherence to deadlines (1996).

An issue was raised regarding the interpretation of the temporary entry of professionals into a Party country who is coming from, or representing businesses. located, outside a NAFTA Party. The TEWG forced a subgroup to study this apparent ambiguity concerning the applicability of the NAFTA and to review the impact of extending privilege to professionals who represent non-NAFTA firms (1995). The TEWG continued to review the issue of NAFTA presence in the receiving party, that is, whether persons delivering a service on behalf of non-NAFTA firms are covered by Chapter 16. Canada and the United States agree that a party should not look beyond the citizenship of the business person. Mexico continues to maintain that the benefits of NAFTA should not be extended beyond the Parties. Mexico will provide information on the magnitude of the problem (1996).

The work of the sub-group formed to review the issue or self-employment by business professionals in a receiving party completed its analysis (1995). Having reached agreement that business professionals, whether or not self-employed abroad, cannot be self-employed in the receiving party, each party will develop appropriate guidelines for its immigration officers at ports-of-entry (1996).

Spousal coverage continues to be discussed. Canada provided a formal proposal in 1995 to waive the labour certification process for spouses of intra-company transferees and traders and investors, which is supported by Mexico. The United States agreed to review this proposal internally and with interested entities (e.g. Congressional and labour advisors) before reaching a formal conclusion. In 1996, the United States expressed its concerns about the Canadian proposal because of the implications of extending spousal benefits to all spouses of intra-company transferees, investors, and traders in the United States, as well as labour market conditions, educational requirements and licensing. In order to move forward on this issue, the United States agreed to provide detailed questions about its concern with the proposal for response by Canada and Mexico.

The subgroup formed to review the minimum education requirements applicable to scientific technicians and technologists to make the criteria more transparent met informally and agreed to Continue to study the issue using the schedule provided by the Canadian delegation (1995). The sub-group agreed to exchange information on the education, training, and certification for scientific technicians and technologists in each party (1996).

Mexico tabled the issue of the numerical limitation placed on the admission of Mexican citizens as professionals under NAFTA. Mexico agreed to send a formal, written proposal concerning the numerical limitation to the United States, and the United States agreed to pursue this issue via its normal consultation process with interested entities upon receipt of the proposal (1995). The United States responded to Mexico in writing that it was not prepared to consider increasing thenumerical limits on professionals in view of the demand compared with the overall limitation. The United States agreed to consider any future specific request that Mexico may wish to offer (1996).

The Parties agreed to investigate possible inaccurate practices and interpretations of the agreement and exchange information to improve the application of the temporary entry measures at ports-of-entry.


Source: International Trade Canada


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