Canada-Chile Free Trade Agreement

Chapter K - Temporary Entry for Business Persons

Article K-01: General Principles

Further to Article A-02 (Objectives), this Chapter reflects the preferential trading relationship between the Parties, the desirability of facilitating temporary entry on a reciprocal basis and of establishing transparent criteria and procedures for temporary entry, and the need to ensure border security and to protect the domestic labour force and permanent employment in their respective territories.

Article K-02: General Obligations

Each Party shall apply its measures relating to the provisions of this Chapter in accordance with Article K-01 and, in particular, shall apply expeditiously those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.

Article K-03: Grant of Temporary Entry

1. Each Party shall grant temporary entry to business persons who are otherwise qualified for entry under applicable measures relating to public health and safety and national security, in accordance with this Chapter, including the provisions of Annex K-03 and Annex K-03.1.

2. A Party may refuse to issue an immigration document authorizing employment to a business person where the temporary entry of that person might affect adversely:

• (a) the settlement of any labour dispute that is in progress at the place or intended place of employment; or
• (b) the employment of any person who is involved in such dispute.

3. When a Party refuses pursuant to paragraph 2 to issue an immigration document authorizing employment, it shall:

• (a) inform in writing the business person of the reasons for the refusal; and
• (b) promptly notify the other Party in writing of the reasons for the refusal.

4. Each Party shall limit any fees for processing applications for temporary entry of business persons to the approximate cost of services rendered.

Article K-04: Provision of Information

1. Further to Article L-02 (Publication), each Party shall:

• (a) provide to the other Party such materials as will enable it to become acquainted with its measures relating to this Chapter; and
• (b) no later than one year after the date of entry into force of this Agreement, prepare, publish and make available in its own territory, and in the territory of the other Party, explanatory material in a consolidated document regarding the requirements for temporary entry under this Chapter in such amanner as will enable business persons of the other Party to become acquainted with them.

2. Each Party shall collect and maintain, and make available to the other Party in accordance with its domestic law, data respecting the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documentation, including data specific to each occupation, profession or activity.

Article K-05: Working Group

The Parties hereby establish a Temporary Entry Working Group, comprising representatives of each Party, including immigration officials, to consider the implementation and administration of this Chapter and any measures of mutual interest.

Article K-06: Dispute Settlement

1. A Party may not initiate proceedings under Article N-07 (Commission - Good Offices, Conciliation and Mediation) regarding a refusal to grant temporary entry under this Chapter or a particular case arising under Article K-02 unless:

• (a) the matter involves a pattern of practice; and
• (b) the business person has exhausted the available administrative remedies regarding the particular matter.

2. The remedies referred to in paragraph (1)(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the institution of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.

Article K-07: Relation to Other Chapters

Except for this Chapter, Chapters A (Objectives), B (General Definitions), N (Institutional Arrangements and Dispute Settlement Procedures) and P (Final Provisions) and Articles L-01 (Contacts Points), L-02 (Publication), L-03 (Notification and Provision of Information) and L-04 (Administrative Proceedings), no provision of this Agreement shall impose any obligation on a Party regarding its immigration measures.

Article K-08: Definitions:

For purposes of this Chapter:

business personmeans a citizen of a Party who is engaged in trade in goods, the provision of services or the conduct of investment activities; and

temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.

Annex K-03

Temporary Entry for Business Persons

Section I - Business Visitors

1. Each Party shall grant temporary entry to a business person seeking to engage in a business activity set out in Appendix K-03.I.1, without requiring that person to obtain an employment authorization, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry, on presentation of:

• (a) proof of citizenship of a Party;
• (b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
• (c) evidence demonstrating that the proposed business activity is international in scope and the business person is not seeking to enter the local labour market.

2. Each Party shall provide that a business person may satisfy the requirements of paragraph 1(c) by demonstrating that:

• (a) the primary source of remuneration for the proposed business activity is outside the territory of the Party granting temporary entry; and
• (b) the business person's principal place of business and the actual place of accrual of profits, at least, predominantly, remain outside such territory.
  
  A Party shall normally accept an oral declaration as to the principal place of business and the actual place of accrual of profits. Where the Party requires further proof, it shall normally consider a letter from the employer attesting to these matters as sufficient proof.

3. Each Party shall grant temporary entry to a business person seeking to engage in a business activity other than those set out in Appendix K-03.I.1, without requiring that person to obtain an employment authorization, on a basis no less favourable than that provided under the existing provisions of the measures set out in Appendix K-03.I.3, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry.

4. Neither Party may:

• (a) as a condition for temporary entry under paragraph 1 or 3, require prior approval procedures, petitions, labour certification tests or other procedures of similar effect; or
• (b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1 or 3.

5. Notwithstanding paragraph 4, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry. Before imposing a visa requirement, the Party shall consult with the other Party with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with the other Party with a view to its removal.

Section II - Traders and Investors

1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to:

• (a) carry on substantial trade in goods or services principally between the territory of the Party of which the business person is a citizen and the territory of the other Party into which entry is sought, or
• (b) establish, develop,administer or provide advice or key technical services to the operation of an investment to which the business person or the business person's enterprise has committed, or is in the process of committing, a substantial amount of capital,
  
  in a capacity that is supervisory, executive or involves essential skills, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry.

2. Neither Party may:

• (a) as a condition for temporary entry under paragraph 1, require labour certification tests or other procedures of similar effect; or
• (b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.

3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry.

Section III - Intra-Company Transferees

1. Each Party shall grant temporary entry and provide confirming documentation to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or affiliate thereof, in a capacity that is managerial, executive or involves specialized knowledge, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission.

2. Neither Party may:

• (a) as a condition for temporary entry under paragraph 1, require labour certification tests or other procedures of similar effect; or
• (b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.

3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry. Before imposing a visa requirement, the Party shall consult with the other Party with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with the other Party with a view to its removal.

Section IV - Professionals

1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to engage in a business activity at a professional level in a profession set out in Appendix K-03.IV.1, if the business person otherwise complies with existing immigration measures applicable to temporary entry, on presentation of:

• (a) proof of citizenship of a Party; and
• (b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry.

2. Neither Party may:

• (a) as a condition for temporary entry under paragraph 1, require prior approval procedures, petitions, labour certification tests or other procedures of similar effect; or
• (b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.

3. Notwithstanding paragraph 2, a Party may require a business person seeking temporary entry under this Section to obtain a visa or its equivalent prior to entry. Before imposing a visa requirement, the Party shall consult with the other Party with a view to avoiding the imposition of the requirement. With respect to an existing visa requirement, a Party shall consult, on request, with the other Party with a view to its removal.

4. Notwithstanding paragraphs 1 and 2, a Party may establish an annual numerical limit, which shall be set out in Appendix K-03.IV.4, regarding temporary entry of business persons of the other Party seeking to engage in business activities at a professional level in a profession set out in Appendix K-03.IV.1, if the Parties have not agreed otherwise prior to the date of entry into force of this Agreement. In establishing such a limit, the Party shall consult with the other Party.

5. A Party establishing a numerical limit pursuant to paragraph 4, unless the Parties agree otherwise:

• (a) shall, for each year after the first year after the date of entry into force of this Agreement, consider increasing the numerical limit set out in Appendix K-03.IV.4 by an amount to be established in consultation with the other Party, taking into account the demand for temporary entry under this Section;
• (b) shall not apply its procedures established pursuant to paragraph 1 to the temporary entry of a business person subject to the numerical limit, but may require the business person to comply with its other procedures applicable to the temporary entry of professionals; and
• (c) may, in consultation with the other Party, grant temporary entry under paragraph 1 to a business person who practices in a profession where accreditation, licensing, and certification requirements are mutually recognized by the Parties.

6. Nothing in paragraph 4 or 5 shall be construed to limit the ability of a business person to seek temporary entry under a Party's applicable immigration measures relating to the entry of professionals other than those adopted or maintained pursuant to paragraph 1.

7. Three years after a Party establishes a numerical limit pursuant to paragraph 4, it shall consult with the other Party with a view to determining a date after which the limit shall cease to apply.

Annex K-03.1

1. Business persons who enter Chile under any of the categories set out in Annex K-03 shall be deemed to be engaged in activities which are in the country's interest.

2. Business persons who enter Chile under any of the categories set out in Annex K-03 and are issued a temporary visa shall have that temporary visa extended for subsequent periods provided the conditions on which it is based remain in effect, without requiring that person to apply for permanent residence.

3. Business persons who enter Chile may also obtain an identity card for foreigners.

Appendix K-03.I.1

Business Visitors

Research and Design

• Technical, scientific and statistical researchers conducting independent research or research for an enterprise located in the territory of the other Party.

Growth, Manufacture and Production

• Purchasing and production management personnel conducting commercial transactions for an enterprise located in the territory of the other Party.

Marketing

• Market researchers and analysts conducting independent research or analysis or research or analysis for an enterprise located in the territory of the other Party.
• Trade fair and promotional personnel attending a trade convention.

Sales

• Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the territory of the other Party but not delivering goods or providing services.

• Buyers purchasing for an enterprise located in the territory of the other Party.

Distribution

• Customs brokers providing consulting services regarding the facilitation of the import or export of goods.

After-sales Service

• Installers, repair and maintenance personnel, and supervisors, possessing specialized knowledge essential to a seller's contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract incidental to the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the territory of the Party into which temporary entry is sought, during the life of the warranty or service agreement.

General Service

• Professionals engaging in a business activity at a professional level in a profession set out in Appendix K-03.IV.1.
• Management and supervisory personnel engaging in a commercial transaction for an enterprise located in the territory of the other Party.
• Financial services personnel (insurers, bankers or investment brokers) engaging in commercial transactions for an enterprise located in the territory of the other Party.
• Public relations and advertising personnel consulting with business associates, or attending or participating in conventions.
• Tourism personnel (tour and travel agents, tour guides or tour operators) attending or participating in conventions or conducting a tour that has begun in the territory of the other Party.
• Translators or interpreters performing services as employees of an enterprise located in the territory of the other Party.

Definitions

For purposes of this Appendix:

territory of the other Party means the territory of the Party other than the territory of the Party into which temporary entry is sought.

Appendix K-03.I.3

Existing Immigration Measures

1. In the case of Canada, subsection 19(1) of the Immigration Regulations, 1978, SOR/78-172, as amended, made under the Immigration Act R.S.C. 1985, c. I-2, as amended.

2. In the case of Chile, Title I, paragraph 6 of Decree Law 1094, Official Gazette, July 19, 1975, Immigration Law ("Decreto Ley 1094, Diario Oficial, julio 19, 1975, Ley de Extranjería"), and Title III of Immigration Regulation("Decreto Supremo 597 del Ministerio del Interior, Diario Oficial noviembre 24, 1984, Reglamento de Extranjería").

Appendix K-03.IV.1

Professionals

Profession ¹ and Minimum Education Requirements and Alternative Credentials ²

General

Accountant - Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A. or C.M.A.; or Contador auditor or Contador público (University Title) ³

Architect - Baccalaureate or Licenciatura Degree; or state/provincial licence ⁴

Computer Systems Analyst - Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma ⁵ or Post-Secondary Certificate ⁶, and three years experience

Disaster Relief Insurance Claims Adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) - Baccalaureate or Licenciatura Degree, and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims

Economist (including Commercial - Baccalaureate or Licenciatura Degree Engineer in Chile)

Engineer - Baccalaureate or Licenciatura Degree; or state/provincial licence

Forester - Baccalaureate or Licenciatura Degree; or state/provincial licence

Graphic Designer - Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience

Hotel Manager - Baccalaureate or Licenciatura Degree in hotel/restaurant management; or Post-Secondary Diploma or Post-Secondary Certificate in hotel/restaurant management, and three years experience in hotel/restaurant management

Industrial Designer - Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience

Interior Designer - Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience

Land Surveyor - Baccalaureate or Licenciatura Degree; or state/provincial/national licence

Landscape Architect Baccalaureate or Licenciatura Degree

Lawyer (including Notary in the Province of Quebec) - LL.B., J.D., LL.L., B.C.L. or Licenciatura Degree (five years) or Abogado, or membership in a state/provincial bar

Librarian - M.L.S. or B.L.S. or Magister en Bibliotecología (for which another Baccalaureate or Licenciatura Degree was a prerequisite)

Management Consultant - Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as a management consultant, or five years experience in a field of specialty related to the consulting agreement

Mathematician (including Statistician) - Baccalaureate or Licenciatura Degree

Range Manager/Range Conservationalist Baccalaureate or Licenciatura Degree

Research Assistant (working in a post-secondary educational institution) - Baccalaureate or Licenciatura Degree

Scientific Technician/Technologist⁷ - Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research

Social Worker - Baccalaureate or Licenciatura Degree or Asistente Social/Trabajador social (University Title)

Sylviculturist (including Forestry Specialist) - Baccalaureate or Licenciatura Degree

Technical Publications Writer - Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience

Urban Planner (including Geographer) - Baccalaureate or Licenciatura Degree

Vocational Counsellor - Baccalaureate or Licenciatura Degree

Medical/Allied Professional

Dentist - D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental or Licenciatura en Odontologia; or state/provincial licence

Dietitian - Baccalaureate or Licenciatura Degree or Dietista Nutricional (University Title); or state/provincial licence

Medical Laboratory Technologist (Canada)/Medical Technologist (Chile, Mexico and the United States of America)⁸ - Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience

Nutritionist - Baccalaureate or Licenciatura Degree or Nutricionista/Dietista Nutricional (University Title)

Occupational Therapist - Baccalaureate or Licenciatura Degree or Terapeuta Ocupacional (University Title); or state/provincial licence

Pharmacist - Baccalaureate or Licenciatura Degree; or state/provincial licence

Physician (teaching or research only) - M.D. or Doctor en Medicina or Médico Cirujano/ Médico (University Title); or state/provincial licence

Physiotherapist/Physical Therapist - Baccalaureate or Licenciatura Degree or Kinesiólogo/Kinesioterapeuta (University Title); or state/provincial licence

Psychologist - State/provincial licence; or Licenciatura Degree

Recreational Therapist - Baccalaureate or Licenciatura Degree

Registered Nurse State/provincial licence, or Licenciatura Degree, or Enfermera (University Title)

Veterinarian - D.V.M., D.M.V. or Doctor en Veterinaria or Médico Veterinario (University Title); or state/provincial licence

Scientist

Agriculturist (including Agronomist) - Baccalaureate or Licenciatura Degree

Animal Breeder - Baccalaureate or Licenciatura Degree

Animal Scientist - Baccalaureate or Licenciatura Degree

Apiculturist - Baccalaureate or Licenciatura Degree

Astronomer - Baccalaureate or Licenciatura Degree

Biochemist - Baccalaureate or Licenciatura Degree

Biologist - Baccalaureate or Licenciatura Degree

Chemist - Baccalaureate or Licenciatura Degree

Dairy Scientist - Baccalaureate or Licenciatura Degree

Entomologist - Baccalaureate or Licenciatura Degree

Epidemiologist - Baccalaureate or Licenciatura Degree

Geneticist - Baccalaureate or Licenciatura Degree

Geologist - Baccalaureate or Licenciatura Degree or Geólogo (University Title)

Geochemist

Geophysicist (including Oceanographer in Mexico and the United States of America) - Baccalaureate or Licenciatura Degree

Baccalaureate or Licenciatura Degree

Horticulturist - Baccalaureate or Licenciatura Degree

Meteorologist - Baccalaureate or Licenciatura Degree

Pharmacologist

Physicist (including Oceanographer in Canada and Chile) - Baccalaureate or Licenciatura Degree

Baccalaureate or Licenciatura Degree for Physicist; Oceanógrafo (University Title) for Oceanographer

Plant Breeder - Baccalaureate or Licenciatura Degree

Poultry Scientist - Baccalaureate or Licenciatura Degree

Soil Scientist - Baccalaureate or Licenciatura Degree

Zoologist - Baccalaureate or Licenciatura Degree

Teacher

College - Baccalaureate or Licenciatura Degree - Baccalaureate or Licenciatura Degree

Seminary - Baccalaureate or Licenciatura Degree

University - Baccalaureate or Licenciatura Degree

Appendix K-03.IV.4

Notwithstanding Annex K-03.IV.4, for the purposes of this Agreement, neither Party shall establish an annual numerical limit regarding temporary entry of business persons of the other Party seeking to engage in business activities at a professional level set out in Appendix K-03.IV.1.