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If you require a bit of legal advice applicable to your specific situation you may book a consultation with one of the immigration lawyers at Holthe Immigration Law. Show Notes: Intro Music Mark Holthe: Welcome back to the Canadian Immigration Podcast. This is Episode 125, and I'm your host, Mark Holthe. Today we're unpacking the intricacies of the CUSMA Trader and Investor work permits. These permits fall under the general category of what I call Canada Immigration’s best kept secrets. Jingle Transition Mark Holthe: Before we delve into the depths of today's topic, let's quickly summarize the basic elements of the CUSMA Trader and Investor work permits. Mark Holthe: The CUSMA Trader work permit is designed for individuals who engage in substantial trade between the U.S. or Mexico and Canada. To qualify, applicants must have American or Mexican citizenship, work for an enterprise of the same nationality, and their trade activities must be primarily directed to Canada, comprising at least 50% of the company's international trade. Additionally, the role in Canada should be of a supervisory, executive, or involve essential skills. Mark Holthe: Moving on to the Investor work permit—this category is for those making a significant and active investment in a Canadian enterprise. The investor, who must also be an American or Mexican citizen, should be investing in a venture that promises more than just a personal living; it should generate employment and contribute economically to Canada. The invested funds must be substantial, which means they should be proportionate to the nature and scale of the business. Jingle Transition Mark Holthe: With these summaries in mind, let's explore the nuanced criteria, application processes, and strategic considerations that come into play with these unique work permits. Full Disclosure: I don’t do many of these. But what I have learned has come from a combination of my limited exposure coupled with the things I have learned from the amazing members of our immigration bar that freely share their experience, insight and knowledge. I’ve attended countless seminars, conferences, webinars and workshops on immigration over the past few 20 years, and learned from my fellow colleague’s successes and failures. Because I have benefited so much from them, I created this podcast to pay it forward. So for this episode, I want to extend a special shout out to two outstanding business immigration lawyers David Garson and Joel Guberman who shared a ton of insight on these two very underutilized work permits in a fantastic webinar put on by the Canadian Bar Association’s immigration section back in April of 2021 during the relative height of the pandemic. The webinar was chaired by Robin Seligman so she get’s a shout out as well. Some of the scenarios and insight shared in this episode come from that webinar. So thanks so much David, Joel and Robin. Jingle Transition Mark Holthe: Okay, Let's talk about the Investor work permit first. Here, the crux is the investment itself. The funds must genuinely be at risk in a Canadian enterprise. You can't just plan to invest; the investment has to be made upfront before applying for the visa. Mark Holthe: So, what qualifies as a substantial investment? Well, it's not specified in dollar amounts. It's about what's necessary to establish the business in Canada. The investment can't be marginal—simply sustaining the foreign worker's income isn't enough. It should be significant enough to employ other local employees too. Jingle Transition Mark Holthe: The nationality of the company and the workers is key. Both must be either Mexican or American. The company must be U.S.-owned, and the individuals transferring must be U.S. citizens. And notably, for those with permanent residence in Canada or green card holders in the U.S., this permit isn't an option. Mark Holthe: In the case of global companies, if the headquarters are in the U.S. but the ownership isn't American—let's say, Dutch citizens own it—that doesn't fit the bill for the investor work permit. Jingle Transition Mark Holthe: To give you an example of how the Investor work permit may fit where others don’t, Consider that this work permit is suitable for executives, managers, or those with essential skills. Normally you would think….ICT, but what if the person hasn’t yet been with the company for a year? And what if there is no reciprocity with Canadian’s working abroad for the company? In this situation, but the ICT and C20 would be ruled out. However, the Treaty Investor may be the perfect fit in this situation. Another significant advantage of the investor work permit is its objectivity. It's easier to demonstrate that requirements are met, and there is far less discretionary decision making by the officer….as would be the case with the C10 Significant Benefit work permit. JOORNEY BUSINESS PLAN AD SCRIPT Mark Holthe: Shifting gears to Trader work permits. Here, the company must be at least 50% owned by American or Mexican citizens and engage in substantial trade with Canada—meaning, at least half of the company's international trade should be with Canada. This is what makes the trade substantial and primarily directed to Canada. Mark Holthe: Ownership determination can be tricky, especially with publicly traded companies. Generally, if it's traded exclusively on a U.S. stock exchange, it's a U.S. company. But if it's traded on multiple exchanges, you need to pinpoint where the majority of the trade occurs. Jingle Transition Mark Holthe: What defines substantial trade? It could be a few high-value transactions or many smaller ones that cumulatively are significant. For digital products, like apps, numerous low-value transactions can also meet the substantial trade criterion. Mark Holthe: There's a creative solution for companies that don't currently trade substantially with Canada. They could set up a separate 'Canada trading company' where 100% of its trade is with Canada, thereby meeting the substantial trade test. Jingle Transition Mark Holthe: And a bonus for traders: you don't need a physical presence in Canada. This is ideal for service technicians who need to travel in and out of Canada. It also benefits consultants who could have multiple Canadian contracts with just one work permit, unlike the CUSMA professional category, which requires a separate work permit for each Canadian client. Mark Holthe: As we wrap up today's episode on CUSMA Trader and Investor work permits, I want to leave my fellow immigration practitioners with some practical tips that can make all the difference in your applications. These are going to jump around a little bit, but think of these as factors to consider in your overall assessment of this particular tool in your business immigration toolbox. Jingle Transition Mark Holthe: When considering substantial investment, think of it as a sliding scale. It's not just about the amount—it's about the significance relative to the business. For instance, $100,000 might be substantial for a single restaurant acquisition but not for a franchise with multiple restaurants valued in the millions of dollars. Mark Holthe: Now, regarding arranged employment points under Express Entry, there's debate on whether CUSMA Trader and Investor entrants can gain these 200 points if they are self-employed or the actual owners of the involved companies. It appears that while Canadian work experience points may not be available, arranged employment points could be—if the applicant is a genuine T4 employee and not self-employed. Jingle Transition Mark Holthe: A word of caution when completing the IMM 5321 form for Trader/Investor Status: it's dual-purpose, so stay vigilant. Answer only what's relevant to your client's situation, and if a section doesn't apply—say so clearly. Mark Holthe: And remember, for treaty traders, there's no requirement to declare the value of trade within Canada. This permit isn't about investment within Canadian borders—it's about trade volume with Canada. Jingle Transition Mark Holthe: Lawyers should also note Canada's stance on investment. While the U.S. may be stricter, Canada welcomes solid applications that demonstrate economic benefits—like job creation within CAnada. So Strong advocacy is key here. Mark Holthe: Don't forget to explore agreements beyond CUSMA. Canada has other treaties, like CETA with the EU, which may not include trader permits due to different economic dynamics. Jingle Transition Mark Holthe: A challenging aspect of CUSMA permits is the initial permit is only issued for one-year. Contrast this with the U.S.'s five-year term, which is more conducive to business stability. We need to advocate for extensions—there's no cap on these, and we should push the envelope for our clients' benefit. If the facts are right and a client is willing, you may just want to take a run at the 1 year limit. Few companies may be willing to invest millions of dollars when they are only securing a one year work permit that must be extended. Now there are not caps on how many times you can extend; however, it does create more uncertainty. Mark Holthe: For those acquiring existing businesses, a business plan might not be necessary, but it's crucial for startups. Your business plan must detail the investment's trajectory within Canada. Jingle Transition Mark Holthe: Take advantage of the fact that these permits are not widely applied for. There's freedom in advocacy here. And if you're looking for guidance, the U.S. Foreign Affairs Manual can provide a valuable checklist to reference, though it's not a strict template for Canada, it can really point you in the right direction when you are considering how best to support these WP applications. Mark Holthe: A key limitation to remember: while both U.S. and Mexican citizens are eligible, there's no mixing and matching—U.S. companies can't bring in Mexican workers under these permits. Jingle Transition Mark Holthe: And for those needing to send technicians to Canada, the treaty trader permit is a golden ticket. It's more straightforward than LMIAs and doesn't necessitate a Canadian entity. Yet, ensure that at least 50% of the company's trade is with Canada—possibly through a dedicated U.S. division. Outro Music Mark Holthe: That's all for today's episode. Remember, each application is a story— and your job is to tell it well, and in a manner that an officer can get behind. Thank you for joining me today. Alicia will be back with me in the next episode where we continue our journey through the various international treaties Canada has entered into that can further expand your business immigration toolbox. Take care and all the best as we navigate our way through this crazy world of Canadian immigration. Outro Music Fades
