Canada: The Corporate Relocation Quarterly April 2006
An immigration Resource for HR Professionals

Waiting for work permit the better way
By Guidy Mamann, LL.B.

Starting a new job should be fun and exciting. But for some foreign nationals in Canada anxiety and frustration can easily creep into the process.

Once a job offer has been made, the prospective employer and employee are often eager to get started.

Accordingly, it is only natural that the employer and employee alike may be tempted to jump the gun and get the employee started even before the work permit has been issued. Often, it is agreed that the employee will begin an "orientation" or "training" until the work permit arrives. Sometimes, this activity is characterized as "volunteer" or "unpaid" work.

In the course of processing a work permit, it is not uncommon for an immigration officer to contact the proposed place of employment to pursue a hunch that the employee may already be working there. If this suspicion is confirmed, the officer is required to apply immigration regulation 200 (3)(e) which prohibits the issuance of a work permit to any foreign national who

"has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless a period of six months has elapsed since the cessation of the unauthorized activity."

This six-month ban does not apply to a foreign national who was authorized to work, but who was performing tasks that were not authorized or who was working for an employer, or at a location, not specified in the work permit. There is also an exception for applicants who are under an unenforceable removal order or who are making a refugee claim that has not been determined.

The only way to overcome the ban before the end of the six-month period is through the unlikely issuance of a Temporary Resident Permit (TRP). The most likely outcome will be the refusal of the work permit and/or TRP application followed by a request that the foreign national leave the country immediately or within a specified period (usually 30 days).

The refusal of the work permit together with the imposition of a six-month ban can wreak havoc on the plans of a prospective employer and employee. The benefits of this shortcut greatly outweigh its risks.

Unauthorized employment puts everyone in an uncomfortable position. The employee, who succumbs to financial or other pressures, could see long term plans for resettlement here scuttled. The employer risks losing a valuable addition to their work force and risks putting other employees in an uncomfortable position if confronted by a surprise call or visit by immigration authorities. There is also the risk, albeit small, of the prosecution of the Canadian employer for employing a foreign national who is not authorized to work.

Even the immigration lawyer who is preparing the application for the work permit is put in a difficult situation if he becomes aware of the unauthorized employment. Failure to disclose the unauthorized employment may put the lawyer in peril of prosecution for aiding an applicant to "withhold material facts" in connection with a work permit application. On the other hand, disclosure of the unauthorized employment will only trigger a refusal of the application and the likely termination of his client’s status in Canada.

In short, it is best for all those involved to be patient while the work permit is being processed. When it comes to immigration, patience is not only a virtue but it is an absolute necessity.

When is a business visitor visa (or B-1) required from a Canadian citizen? It can be a tricky category and often can lead to confusion at the border if the Canadian applicant is unsure of their entry category. 

Generally speaking, a B-1 business visitor is someone who is going to the United States to engage in commercial transactions without being an employee of the base of business. Under the North American Free Trade Agreement (NAFTA), the business visitor class is broadened in an attempt to encourage the flow of trade between the United States and Canada. 

There are seven general categories that a Canadian may utilize when entering the United States as a B-1 visa holder. They are (1) research and design; (2) growth, manufacture, and production; (3) marketing; (4) sales; (5) distribution; (6) after-sales service; and (7) ‘general services’ (which can mean management and supervisory services, tour bus operators, public relations personnel, etc.).

On first glance, these categories seem to catch an enormous number of occupations, falsely leading a Canadian worker to believe that a further work permit is not required. However, there are a number of limitations that are placed on this category, including the proviso that the Canadian worker receive no salary or other remuneration from the U.S. entity. 

To facilitate entry under this category, it is advisable that the Canadian prepare a package of information documenting the intent of the visit, as well as proof of citizenship. Often times, a well-prepared applicant can make the difference between a refusal and an entry at a border crossing.

There are many work permit options for a foreign national interested in working in the United States. Skilled workers can enter under an H visa, skilled Canadian or Mexican workers may be able to enter under NAFTA, and entrepreneurs/investors are able to enter under the E category, to name a few. Deciphering the alphabet soup of U.S. work permits can be tricky, and special care should always be taken that the employer’s needs are matched, not only to the right candidate, but also to the right work permit category.

Over the course of our next few issues, we will discuss many of these work permit categories, beginning this issue with visas under the North American Free Trade Agreement.

A Canadian worker must fall under one of the occupations enumerated in the NAFTA Appendix 1603.D.1. Generally speaking, these categories are limited to those occupations of a skilled nature. In most instances, there is a requirement that the applicant must possess either a bachelor’s degree that is relevant to the field in which they are seeking to work or a post-secondary diploma from a two-year accredited program.

Applicants must possess a job offer from an American employer that clearly states the position being offered and enumerates the duties the foreign national will perform. A foreign worker may work in an approved occupation for more than one employer, provided that they hold a permit for each employer.

Under NAFTA, the applicant may not use experience as an equivalent to education, unless they are applying as a Management Consultant. The applicant is not allowed to be self-employed, or to work for a corporation where they are the sole shareholder of that corporation. Evidentiary requirements are key to this application, as the application is generally determined on the spot. Lack of evidentiary proof can be the difference between a positive decision and a negative decision. NAFTA work permits are granted for a period of one year, and there is currently no fixed limit on the number of renewals. Spouses and unmarried minor children are allowed to accompany or to join the principal applicant, and are given visas to allow them to live with the primary applicant.

When done properly, a TN/NAFTA visa offers both the employer and employee quick, effective access to a wider job market across U.S.-Canadian-Mexican borders.

A misunderstanding of the definition of "management consultant" is triggering many work permit refusals at the Canada/U.S. border.

The North American Free Trade Agreement (NAFTA) was executed to facilitate the trade of goods and services between Canada, the United States, and Mexico. To this end the agreement also facilitates the entry of certain temporary workers who are citizens of any of the three member states. The agreement allows expedited entry for:

• Business visitors;

• Traders and investors;

• Intra-company transferees; and

• Professionals.

There are about 65 occupations listed in the professionals category. 

Accordingly, Canadians who wish to work in their profession in the U.S. must simply present themselves at a U.S. port-of-entry or U.S. pre-flight clearance with a written offer of temporary employment from a U.S. company together with proof that they meet the minimum educational and other requirements for the professional position being offered.

They must pay a small fee for the work permit and must not be inadmissible to the U.S. on criminal, medical or other grounds.

U.S. immigration officials will issue a TN visa, without appointment, in a matter of minutes or hours depending on border traffic at the time. The permits can be renewed annually provided the applicant can still prove that their position and residence in the U.S. is still temporary. 

The same requirements, considerations, and procedures apply to American citizens who wish to apply for a Canadian work permit pursuant in this category. 

Almost all of the occupations require a degree or diploma. One notable exception is that of management consultant.

It is not necessary to have a degree to qualify as a management consultant provided that the applicant can prove that they have "five years of professional experience in a field of specialty related to the consulting agreement." 

Many individuals who have not completed any post-secondary education but who have been offered a "managerial" position in an industry in which they have more than five years of experience think they qualify for a work permit under this category. They will be refused because a person who intends to "manage" is not a "management consultant."

A manager is a person who directs a certain aspect of a company’s operation, such as a sales or production manager. Such individuals work indefinitely for their employer and are very much "hands on." 

On the other hand a "management consultant" is usually brought in by a company to provide its management team with advice and recommendations as to how to improve the managerial, operating, and/or economic performance of the company. They are usually, but not always, independent contractors who are paid a consulting fee for their services.

Management consultants usually come in for a short time and then leave when their recommendations have been assessed and perhaps implemented. 

Few companies can legitimately justify having a management consultant for more than a year or two. Accordingly, those looking to work for a single employer for an extended period as a management consultant will find it increasingly difficult to renew these work permits.

Managing a business is not the same as advising a management team. Under- standing this distinction can prevent an unnecessary refusal.

Spouses or common-law partners of skilled people coming to Canada as temporary foreign workers, may be authorized to work in Canada without first having to obtain a confirmation from Service Canada.

There are two aspects to eligibility for spouses or common-law partners to qualify for a work permit:

The principal foreign worker must be doing work which is classified as skill level O, A or B of the National Occupational Classification Matrix. These occupations include management and professional occupations as well as skilled tradespersons. A complete list of NOC occupations can be viewed on HRSDC ’s website : 

http://www23.hrdc-drhc.gc.ca/2001/ e/generic/welcome.shtml

If the principal foreign work permit holder has been nominated for permanent residence by a province, their spouse or common-law partner will be entitled to an open work permit , irrespective of the skill level of the principal applicant. The spouse’s or the common-law partner’s work permit will be valid for the duration of the work permit of the nominated principal applicant. 

The spouse or common-law partner may be issued an open work permit that will be valid for the duration of the principal applicant’s work permit. The spouse or common-law partner can apply for their work permit at the same time with the principal applicant, either at the visa post abroad or at the port of entry, depending on where they are eligible to apply for the work permit. The issuance of the work permit remains subject to the applicant meeting all immigration requirements concerning security, criminality and health.

Spouses or common-law partners of full-time students studying at a university, community college, CEGEP, publicly-funded trade/technical school or at a private institution authorized by provincial statute to confer degrees, are eligible for a work permit if they are not a full-time student. 

These work permits are exempt from HRSDC confirmation. They could be open or open/restricted work permits depending on the requirement to pass a medical examination.

The work permit will be valid for the duration of the principal student’s study permit or the duration of their authorized work after graduation (post graduation employment).

The Corporate Relocation Quarterly ^™

is a quarterly review of current developments in Canadian and American immigration law relating to the international relocation of human resources. It is a publication of the lawyers and attorneys at the Toronto law firm of Mamann & Associates P.C. The articles contained herein are intended for lawyers, immigration professionals, human resources personnel and other consumers of professional immigration services. For a free subscription to The Corporate Relocation Quarterly ^™ or to other Mamann & Associates P.C. publications, visit www.migrationlaw.com.