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Requirements to Investor Visitors

To qualify as a NAFTA/CCFTA Investor Visitor the following conditions have to be met by individual and/or business he/she represents:

  • applicant has American, Mexican or Chilean citizenship;

  • enterprise has American, Mexican or Chilean nationality;

  • substantial investment has been made, or is actively being made;

  • applicant is seeking entry solely to develop and direct the enterprise;

  • if the applicant is an employee, position is executive or supervisory or involves essential skills;

  • compliance with existing measures applicable to temporary entry.

Criteria to be met 

  • The applicant must be a citizen of the United States, Mexico or Chile and enterprise or firm to which the applicant is coming has American, Mexican or Chilean nationality.

Note: American, Mexican or Chilean nationality means that the individual or corporate persons who own at least 50% interest (directly or by stock) in the entity established in Canada must hold American, Mexican or Chilean citizenship. 

  • In parent subsidiary situations, the nationality of the corporate entity established in Canada should be looked at.

  • A letter attesting to ownership from a corporate secretary or a company lawyer may be used in determining nationality.

  • The place of incorporation of an enterprise is not an indicator of nationality. Nationality is indicated by ownership.

Develop and direct means that the applicant should have controlling interest in the enterprise. An interest of 50% or less usually will mean that the applicant does not have requisite control, particularly in smaller enterprises. An equal share of the investment, such as an equal partnership, generally does not give controlling investment in Canadian based corporations. However, in cases of American, Mexican or Chilean corporate investment in Canadian based corporations, the focus should be less on an arithmetical formula and more on corporate practice, since control of half or less of the stock sometimes gives effective control. A joint venture may also meet the "develop and direct" requirement, provided that the American, Mexican or Chilean corporation can demonstrate that it has, in effect, operational control.

  

Investment involves placing funds or other capital assets at risk in the commercial sense in the hope of gaining profit or a return on the funds risked. If the funds are not subject to partial or total loss , if investment fortunes reverse, than it is not an investment which can be used to support investor status. The applicant must be close to the start of actual business operations, not merely in the stage of signing contracts (which could be broken) or scouting for suitable location and property. The investment funds must be irrevocably committed to the business. Whether an investment has been, or will be made, the applicant must demonstrate prior or present possession and control of the funds or other capital assets.

  

Substantial investment. There is no minimum dollar figure established for meeting the requirement of "substantial" investment. Substantiality is normally determined by using a proportionality test in which the amount invested is weighted against one of the following factors:

  • the total value of the particular enterprise in question;

  • the amount normally considered necessary to establish a viable enterprise of the nature contemplated.

Only the amount already invested or irrevocably committed for investment can be considered in determining substantiality. The investment must be significantly proportional to the total investment. The total investment is the cost of an established business or money needed to establish a business. In business requiring smaller amounts of total investment, the investor must contribute a very high percentage of the  total investment, whereas in business of larger total investment, the percentage of the investment may be much less.

  

Real enterprise. The enterprise must be a real and active commercial or entrepreneurial undertaking which operates to produce some service or commodity for profit. It cannot be a paper organization or an idle, speculative investment held for potential appreciation in value. 

  

Criteria to be met to bring employee in investor status (Employer). To bring an employee to Canada in Trader status, the nationality requirement must be met:

  • the prospective employer in Canada must be a citizen of the United States, Mexico or Chile who is maintaining Investor status in Canada; or

  • if the prospective employer is a corporation or other business organization, the majority ownership must be held by citizens of the United States, Mexico or Chile, who if not residing in the United States, Mexico or Chile are maintaining Investor status in Canada.

Criteria to be met to bring employee in investor status (Employee). The applicant must be an American, Mexican or Chilean citizen who qualifies in a supervisory or executive capacity or possesses skills essential to the firm's operations in Canada. Supervisory or executive element of the position is a primary function. The supervisor is primarily responsible for directing, controlling and guiding subordinate employees and does not routinely involve engaging in hands on activities. Essential skills or services are special qualifications that are vital to the effectiveness of the firm's Canadian operations over and above qualifications required of an ordinary skilled worker. An employee with essential skills is not required to have previously worked for the enterprise unless the skills required could only be acquired by working for the enterprise.

  

Duration

An employment authorization issued at the time of entry can have a maximum duration of one year. Extensions should be granted for duration of 2 years provided that the requirements outlined above are met. Investor status would end upon taking another job, engaging in an activity which is not consistent with this status, closing down the business, etc.

  

Distinction between NAFTA and CCFTA

Unlike NAFTA which is a tri partite agreement among Canada, Mexico and the United States, the CCFTA is a bi lateral agreement between Canada and Chile only. Even though much of the CCFTA is modeled after NAFTA, the CCFTA is not binding upon the United States or Mexico. Thus, citizens of Chile should not presume that any of the rights and privileges granted to them under the CCFTA will apply with respect to the United States or Mexico. Similarly, citizens of the United States and Mexico should not presume that any of the rights and privileges granted to them under NAFTA will apply with respect to Chile.

  

  

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