Under the North American Free Trade Agreement (NAFTA), a NAFTA Investor may obtain a work permit without first obtaining a Labour Market Impact Assessment (LMIA).
In order to fall under this exemption, the following requirements must be met:
The NAFTA Investor must have either US or Mexican citizenship;
The company must have US or Mexican citizenship nationality (a majority of the company must be owned by persons of American or Mexican citizenship);
Substantial investment must have already been made, or is actively being made;
The NAFTA Investor is seeking entry into Canada for the sole reason for developing and directing the business; and
If the NAFTA Investor is also an employee of the company, his or her role must be executive or supervisory, or involve essential skills.
An “investment” should be considered as the placement of funds or other assets at risk, in the goal of generating a profit or return. Without the presence of such a risk, then one would not be considered to have made an investment under this title. This would therefore prevent NAFTA Investor status for non-profit organizations. Additionally, the NAFTA Investor must demonstrate prior or present possession and control of the investment. The type of investment (such as the investment of funds, the purchase of equipment, etc.) will also be taken into account when assessing whether an investment has actually been made.
In order for the investment to be considered “substantial”, it must be weighed against the total value of the business in question, or the amount normally required in establishing a venture of that nature. A determination must be made as to whether the investment is considered proportional to the total investment.
In order to be “developing and directing” the business, the NAFTA Investor must also demonstrate that they have a controlling stake in the company.
As an employee of the company, a NAFTA Investor must demonstrate that their primary tasks are to direct, control, and guide employees. Several factors are taken into consideration when determining whether an Investor falls under this label, such as their title, their place within the company’s hierarchy, their job duties, etc. Generally, NAFTA Investors do not generally partake in the company’s hands-on activities.
A NAFTA Investor who is employed in a capacity that involves essential skills must demonstrate that their specific expertise is vital to the American or Mexican company, who are operating within the requirements set out above.