We use cookies to give you the best online experience. By using our website you agree to our use of cookies in accordance with our cookie policy. Learn more here.Close Me
It is common for companies to fill executive positions in Canada
and the United States with one executive. That person is
based in the US and commutes to Canada on a regular basis to
provide services to the Canadian affiliate. Since they are
providing services to a Canadian company, these people cannot
qualify as business visitors in Canada. Instead, they need a
work permit. Although not difficult to obtain under the NAFTA
exemption for intra-company transferees (citizens from other
countries in the same situation can also obtain work permits under
another non-NAFTA exemption), these work permits are time
limited. But on September 19, 2011, Citizenship and
Immigration Canada issued a new Operational Bulletin (OB 346) which
allows employers to "recapture" the foreign workers'
time not spent in Canada.
Maximum Length of Stay
The problem is the maximum length of stay. Those who are
transferred to Canada as persons possessing specialized knowledge
can only be issued work permits for a maximum of five years.
Those who are transferred to Canada because they fill a senior
managerial position cannot obtain an extension of their work permit
after seven years. Once having reached the cap, an
intra-company transferee can only obtain a new work permit after
spending a full year abroad without working in Canada. And
then the five or seven years start over again. The rationale
for the limit? To encourage those who are settling
permanently in Canada to apply for permanent residence status.
The Reverse Situation
For some time now, US Immigration has allowed, in the reverse
situation, Canadians based in Canada and commuting frequently to
the US, but not settling in the US, to recapture the time not spent
in the US. Until last month, Immigration Canada did not apply the
same principle, even when the rationale for the limit does not
apply to long-term commuters - they do not have the intention to
settle in Canada permanently but have the intention to continue
coming sporadically to provide services to the Canadian
affiliate. The practical consequence of the limits in Canada
is that, after five or seven years of holding a temporary work
permit in Canada under an intra-company transferee exemption, such
persons (or their employers) have to embark on a long and tedious
procedure to obtain a positive Labour Market Opinion from Service
Canada confirming that they are not taking a job opportunity away
from a Canadian.
Some Relief from Immigration Canada
Since September 19, 2011, Immigration Canada now says that the
days not spent in Canada can be deducted. The result is that
the work permits can be extended by an amount equal to the
recaptured time.
In order to deduct or recapture time, employers should keep good
records of the time not spent in Canada. We recommend
presenting:
a table of days of presence in Canada;
an affidavit;
corroborating proof such as plane tickets, stamps of entry into
Canada and hotel bills; and
proof that the person lives in the US such as a letter
from the US employer, payslips and W4s proving that they receive
their remuneration in the US, proof of US home ownership (or a
lease), US utility bills, etc.
This policy direction means greater flexibility for Canadian
employers and fewer hurdles for them when employing executives or
others who work in Canada and elsewhere and make their home
elsewhere.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
As part of its Economic Action Plan 2013, the Federal Government signalled that it would be taking action in the coming months to reform the Temporary Foreign Worker Program.
On Oct. 1, 2012, USCIS will begin accepting the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens who are outside the United States and seeking classification as a TN nonimmigrant visa under NAFTA.
