Comparative Guide Chile - U.S. FTA and DR - CAFTA - Chapter 14: Temporary Entry for Business Persons

A Comparative Guide to the Chile-United States Free Trade Agreement and the
Dominican Republic-Central America-United States Free Trade Agreement


Chapter Fourteen: Temporary Entry for Business Persons


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Only the Chile-U.S. FTA contains a chapter that deals with Temporary Entry for Business Persons. This Chapter is not a part of DR-CAFTA and the issue is not treated in the latter Agreement. Consequently this summary discusses the Chile-U.S. FTA text only.

General principles and obligations: set out in Articles 14.1 and 14.2, these ensure that nothing in the Chapter affects the ability of either Party to carry out immigration or security measures, i.e. those measures “…necessary to regulate the entry of natural persons into, or their temporary stay in, its territory…”. These include security measures. The right of both Parties to require visas for entry or for the conduct of investment activities is also unaffected by the Agreement. However, the Parties are to try and ensure that these immigration and visa measures do not unduly delay trade and investment activities. Additionally, Article 14.1 makes it clear that the Chapter does not apply to measures regarding citizenship, nationality, permanent resident, or employment on a permanent basis.

Grant of temporary entry: sets out (in Art.14.3) the obligation to grant temporary entry to business persons of the other Party (as specified in the categories set out in the Annex 14.3 described below) under applicable measures relating to public health and safety and national security and when the temporary entry might adversely affect the settlement of any labor dispute. In case of refusal, the Party is obliged to inform the business person in writing and the other Party as well of the reasons.

Provision of information: obliges each Party to provide material to familiarize the other Party with its immigration laws and visa procedures and other relevant measures, and additionally to publish and provide a consolidated document of references to applicable laws and regulations no later than six months after the entry into force of the Agreement. Each Party is also required to collect data on the granting of temporary entry to business persons, specific to each occupation, profession or activity, and to make this available to the other Party.

Committee on Temporary Entry: establishes a Committee on Temporary Entry with representatives of the two Parties, including immigration officials. Article 14.5 sets out the tasks of this Committee which include: establishing procedures to exchange information; developing measures to further facilitate temporary entry of business persons; and developing common criteria and interpretations for implementing the Chapter.

Dispute settlement: specifies (in Art.14.6) that a Party may not initiate proceedings regarding a refusal to grant temporary entry under the Chapter unless: “ (a) the matter involves a pattern of practice; and (b) the business persons has exhausted the available administrative remedies regarding the particular matter”. The latter is further defined as a situation in which a determination in the matter has not been issued within a one-year period of time.

Relation to other chapters: states (in Art.14.7) that no provision of the Agreement shall impose any obligation on a Party regarding its immigration measures, and that nothing in Chapter Fourteen shall impose obligations or commitments with respect to other Chapters of the Agreement.

Transparency in development and application of regulations: sets out provisions (in Art.14.8) that complement those in Chapter Twenty (Transparency). The Article provides for each Party to do the following:

i) establish/ maintain mechanisms to respond to inquiries regarding regulations relating to temporary entry;

ii) provide a statement addressing comments received on proposed regulations relating to temporary entry;

iii) allow a reasonable period of time between the date of publication of final regulations and their entry into force;

iv) inform applicants of the status of their application without undue delay and of a decision concerning their application within a reasonable period of time.

Definitions: sets out (in Art.14.9) definitions relevant to the Chapter. These include definitions for the following terms: business person; immigration measure; national; professional; and temporary entry.

Annex 14.3: Temporary Entry for Business Persons: the Annex to Article 14.3 on Temporary Entry for Business Persons specifies the four categories that are encompassed within the provisions of Chapter 14. These include: Business Visitors; Traders and Investors; Intra-Company Transferees; and Professionals.

Under the relevant sections, namely Section A for Business Visitors, Section B for Traders and Investors, Section C for Intra-Company Transferees and Section D for Professionals, the text specifies what requirements each category of worker must satisfy in order to be granted temporary entry. The text also specifies in Sections A, B and C that neither Party may require labor certification tests or impose or maintain any numerical restriction relating to temporary entry, while Section D authorizes the Parties to establish an annual numerical limit on the temporary entry of Professionals.

Additionally, there are three Appendices under the Annex 14.3. The first is an Appendix relevant to the first category of Business Visitors. The second is an Appendix relevant to the fourth category of Professionals. The third is an Appendix setting out commitments by the United States for temporary entry quotas.

The first Appendix 14.3(A)(1) sets out the various types of activity in which Business Visitors may be engaged, namely:

i) Meetings and Consultations;
ii) Research and Design;
iii) Growth, Manufacture, and Production;
iv) Marketing;
v) Sales;
vi) Distribution;
vii) After-Sales Service; and
viii) General Service.

The second Appendix 14.3 (D)(2) lists the minimum education requirements and alternative credentials for the following professions:

i) Disaster Relief Claims Adjuster;
ii) Management Consultant;
iii) Agricultural Manager; and
iv) Physical Therapist.

A third and final Appendix 14.3 (D)(6) under the title “United States” sets out the commitment by the United States to annually approve as many as 1,400 applications for business persons of Chile seeking temporary entry under the category of Professionals (not including accompanying family members).

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