The electrical engineer from Mexico wants to enter Canada to provide services to a Canadian company. However, he is the employee of a Mexican company that was hired by the Canadian enterprise to provide the services. Does this qualify as a NAFTA professional, since the foreign worker has no intention on becoming the temporary employee of the Canadian company. He will also be paid by the Mexican company while in Canada. Should the application be framed as a business visitor instead?

If the temporary foreign worker is a Mexican citizen and has the appropriate qualifications as an electrical engineer, he should certainly be able to obtain a work permit as a NAFTA professional under section 204(a) of the Immigration and Refugee Protection Regulations (LMIA Exemption Code T23). This is not the case where you could be successful in a Business Visitor application, as the foreign national will certainly be entering the Canadian labour market and providing services to Canadians, even if the remuneration for the services is paid to his foreign employer.
IRCC's Program Delivery Instructions (PDIs) specifically provide for this type of arrangement under the exemptions for Free Trade Agreement professionals. In describing the type of pre-arranged services that are permissible for NAFTA professionals, the PDIs recognize the following three scenarios:

  • An employee-employer relationship with a Canadian enterprise (direct employee); OR
  • A contract between the professional and a Canadian enterprise (contractor); OR
  • Where services are provided under a contract between the professional's Mexican employer and a Canadian enterprise.What does not qualify as pre-arranged services is self-employment in Canada, which is exemplified at length in the PDIs. This certainly does not concern the scenario you mention.

Consequently, evidence of confirmation of pre-arranged employment for a NAFTA professional application can be provided through either:

  • A signed contract with a Canadian enterprise, OR
  • Evidence of an offer of employment from a Canadian employer, OR
  • A letter from the Mexican employer on whose behalf the service will be provided to the Canadian enterprise.

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