Canadian businesses increasingly recruit specialized talent across borders. For employers with candidates who are citizens of the United States or Mexico, the Canada-United States-Mexico Agreement (CUSMA) may provide an important immigration option.
CUSMA contains labour-mobility provisions that can facilitate temporary entry to Canada for certain eligible business persons, including qualifying professionals.
One significant advantage is that qualifying CUSMA work-permit categories may be LMIA-exempt.
However, being American or Mexican—or simply holding a professional job—is not enough by itself to qualify.
Canadian employers should assess the applicable CUSMA category, occupation, candidate’s credentials, job duties, employer requirements, and work-permit process before relying on this route.
What Is CUSMA?
CUSMA is the trade agreement between Canada, the United States and Mexico that replaced the North American Free Trade Agreement (NAFTA).
In addition to trade rules, CUSMA contains provisions facilitating temporary entry for certain categories of business persons.
Depending on the circumstances, these can include:
- business visitors;
- professionals;
- intra-company transferees; and
- traders and investors.
For Canadian employers recruiting U.S. or Mexican professionals, the professional category can be particularly relevant.
Why CUSMA Matters to Canadian Employers
Many employer-specific work permits require an employer to first obtain a Labour Market Impact Assessment (LMIA).
An LMIA can involve recruitment and other requirements intended to assess the impact of hiring a foreign worker on Canada’s labour market.
CUSMA can provide an LMIA-exempt route for qualifying candidates.
That does not mean there are no immigration requirements.
Instead, the employer and foreign worker must establish that the circumstances satisfy the applicable CUSMA and Canadian immigration requirements.
Who May Qualify as a CUSMA Professional?
CUSMA professional status is not available for every occupation.
The applicant generally needs to be a citizen of the United States or Mexico and seek entry to provide professional-level services in an occupation covered by the agreement.
The candidate must also satisfy the applicable educational or professional qualifications for that occupation.
Depending on the profession, this may involve:
- a university degree;
- a particular credential;
- professional licensing;
- relevant experience; or
- a combination of specified qualifications.
The Canadian position must also correspond to the eligible profession.
Job Titles Are Not Enough
Employers should not assume that a candidate qualifies simply because the job title resembles a listed profession.
Immigration authorities can examine the actual duties of the position, the candidate’s qualifications, and the relationship between the two.
For example, calling a position an “engineer” does not necessarily establish eligibility if the substantive duties do not correspond to the relevant professional category.
Similarly, a candidate with extensive industry experience may not satisfy a category requiring a specific academic credential.
The assessment should therefore be completed before the employer commits to a particular immigration strategy.
CUSMA Does Not Create an Open Work Permit
A CUSMA professional work permit is generally employer-specific.
That means the authorization relates to the particular Canadian employment described in the application.
The employer should therefore provide clear and accurate information concerning matters such as:
- the position;
- duties;
- location of employment;
- compensation;
- expected duration; and
- the candidate’s professional role.
Changes to employment circumstances can have immigration implications and should be reviewed when necessary.
What Does the Canadian Employer Need to Do?
LMIA-exempt does not mean employer-exempt.
For many employer-specific LMIA-exempt work permits, the Canadian employer must complete required steps through Canada’s immigration system before the worker applies.
Depending on the category and circumstances, this can include submitting an offer of employment through the appropriate employer process and paying the applicable employer compliance fee.
The information submitted by the employer should align with the supporting documents and the worker’s application.
Inconsistencies can create avoidable complications.
Documents Commonly Relevant to a CUSMA Professional Application
The required evidence depends on the profession and individual circumstances, but an application may involve documents establishing:
Citizenship
Evidence that the applicant is a U.S. or Mexican citizen.
Canadian Employment
A detailed employment or support letter describing the Canadian position.
Professional Qualifications
Degrees, diplomas, licences, certifications, or other evidence required for the applicable profession.
Job Duties
Documentation demonstrating that the actual work corresponds with the relevant CUSMA professional category.
Employer Information
Information concerning the Canadian company and the employment relationship.
Additional documentation may be necessary depending on the applicant, profession, employer and method of application.
Can a CUSMA Professional Apply at the Canadian Border?
Some eligible applicants may be able to apply for certain work permits at a Canadian port of entry, while others must or should apply through another process.
Current Canadian rules should always be checked before travel.
The fact that a person may be eligible to apply at a port of entry does not guarantee approval.
The applicant must still establish eligibility and provide sufficient supporting documentation.
For employers, relying on an employee simply arriving at the border with an offer letter is therefore not a sound immigration strategy.
CUSMA and Intra-Company Transfers
CUSMA can also be relevant where a U.S. or Mexican business has Canadian operations and wishes to transfer certain personnel into Canada.
An intra-company transferee analysis differs from a professional application and can involve factors relating to the corporate relationship, the employee’s prior employment, the Canadian entity, and the nature of the proposed role.
This can be particularly relevant for companies expanding operations into Calgary or elsewhere in Canada.
Employers should assess whether a professional, intra-company transfer, or another immigration category is the best fit rather than assuming a single route applies.
What If the Candidate Does Not Qualify Under CUSMA?
CUSMA is only one part of Canada’s work-permit framework.
If a candidate does not meet the CUSMA requirements, another LMIA-exempt category may potentially apply.
Alternatively, an employer may need to consider the Temporary Foreign Worker Program and whether an LMIA is required.
The appropriate strategy depends on factors including:
- citizenship;
- occupation;
- qualifications;
- employer;
- corporate relationships;
- location;
- duration of employment; and
- purpose of entry.
Common Employer Mistakes
Canadian employers can reduce immigration risk by avoiding several common assumptions.
Assuming Every U.S. or Mexican Professional Qualifies
CUSMA contains defined requirements. Citizenship alone is insufficient.
Looking Only at the Job Title
The actual duties and qualifications matter.
Ignoring Employer Compliance Requirements
An LMIA exemption does not necessarily eliminate employer obligations.
Preparing Inconsistent Documentation
The employment offer, employer submission and supporting letters should describe the role consistently.
Treating Border Applications as Automatic
Eligibility to make an application at a port of entry is different from eligibility for approval.
Waiting Until the Employee Is Needed Immediately
Immigration planning should form part of recruitment and workforce planning, particularly for key personnel.
CUSMA as Part of Cross-Border Business Planning
CUSMA can be especially valuable where businesses operate on both sides of the Canada-U.S. or Canada-Mexico borders.
For example, an international company establishing an Alberta operation may need legal advice concerning both:
- Corporate matters such as incorporation, ownership, commercial agreements and Canadian operations; and
- Immigration matters such as transferring executives or specialized personnel and hiring foreign professionals.
Coordinating the corporate and immigration strategy early can help prevent one part of the expansion from delaying another.
Hiring a U.S. or Mexican Professional in Alberta?
CUSMA can provide an efficient immigration pathway for qualifying professionals, but the eligibility analysis should be completed carefully.
Evergreen Solicitors advises Canadian businesses and foreign companies on business immigration matters, including CUSMA work permits, LMIA-exempt work permits, intra-company transfers, employer compliance, and corporate expansion into Canada.
For companies establishing or expanding Canadian operations, Evergreen Solicitors can also assist with the related corporate and commercial legal requirements.
Immigration programs, policies, eligibility criteria, and application procedures can change. This article provides general information only and does not constitute legal advice. Current requirements should be confirmed before an application is made.