Canada: Businessperson Or "Business Visitor": Canada's Business Visitor Visa Rules

Last Updated: November 23 2016
Article by Sarah McInnes and Meghan Felt

Canada's most important trading relationship might undergo some change with the results of the 2016 U.S. election. Facilitating cross-border mobility between Canada and the U.S., however, remains vital for both countries. The "business visitor" visa was designed to grant people, from the U.S. and elsewhere, entry to Canada without the usual requirement for a work permit. But the current criteria for who does – and doesn't – qualify as a "business visitor" and the process to obtain that status lack the clarity to achieve this objective.

Improving cross-border mobility was the driving force behind the inaugural 2016 U.S.-Canada S.A.G.E. Summit in June 2016. For the first time, more than 200 delegates representing 60 leading cross-border businesses, policy and political leaders from both Canada and the United States came together to discuss "strategies, advocacy, gateways and engagement" (S.A.G.E.) with the purpose of establishing a consistent message, from stakeholders to governments of both countries, of ways to streamline cross-border movement of goods and people. Summit delegates issued the initial "Columbus Declaration", a set of deliverables intended to advocate for fewer restrictions and headaches for business relationships between the two countries. Delegates identified labour mobility as one of the top three most pressing areas to be addressed, and specifically supported an immediate call to action by both governments to provide clarity and training of border officials so there is consistent processing of "business visitor" applicants. On October 5, 2016, 40 key stakeholders met again in Washington, D.C to adopt a final version of the Columbus Declaration and began work on a S.A.G.E. 2017 Platform members intend to present to both governments after the inauguration of the new U.S. President.

A current hindrance to that cross-border mobility is that a businessperson visiting Canada does not necessarily qualify as a "business visitor" for Canadian immigration law purposes. A person coming to Canada for business may require a work permit to enter and carry out their intended activities, even if they are only in Canada for a few days. However, a person who does qualify as a "business visitor" is exempt from that work permit requirement and is granted temporary entry to Canada for a stay of up to six months. This work permit exemption is valuable because obtaining one can be a complex process. There's a fee, and unless the individual meets one of the narrow exemptions for a labour market impact assessment (LMIA), it's very difficult to get a work permit without a LMIA – in itself a time-consuming and costly process.

Here are the criteria to qualify as a "business visitor" to Canada, the process to obtain that "business visitor" status, and five tips for dealing with the pitfalls.

THE "BUSINESS VISITOR" CRITERIA

Qualifying for "business visitor" status and the accompanying work permit exemption is entirely dependent on the nature of the intended activities, and the broad criteria leave plenty of room for ambiguity.

Immigration and Refugee Protection Regulations (IRPA). Under these regulations, foreign nationals are permitted to work in Canada without a work permit as a "business visitor". Defined broadly, a business visitor is a foreign national who seeks to "engage in international business activities in Canada without directly entering the Canadian labour market," and whose principal place of business, primary source of remuneration and the place of accrual of profits remain outside Canada. The Temporary Foreign Worker Guidelines (Guidelines) is a policy manual developed by the Canadian government to guide immigration officers in their interpretation and application of the IRPA and NAFTA. The Guidelines provide illustrative examples of qualifying activities, including: after sales service/warranty work, purchasing Canadian goods or services for a foreign business, or receiving training in respect of such goods or services; receiving or giving training within a Canadian affiliate of the corporation that employs them outside of Canada, if production resulting from the training is incidental; and representing a foreign business for the purpose of selling goods, but not making sales to the general public.

NAFTA. The North American Free Trade Agreement (NAFTA) also permits the nationals of member countries (the U.S. and Mexico) to work in Canada without a work permit as a "business visitor". NAFTA's business visitor criteria parallels that of the IRPA by reference to activities that are similar, but not identical, to IRPA's "permitted activities". NAFTA qualifying activities include those related to the following (and commonly include participating in business meetings, conventions, conferences, consultations and negotiations respecting them): research and design; growth, manufacture and production; marketing; sales; distribution; after-sales services/warranty work; and general service. U.S. and Mexican nationals can therefore enter Canada as a business visitor under IRPA and/or NAFTA with little practical distinction.

The Ambiguity. At first blush, the activities qualifying a businessperson entering Canada as a work permit exempt "business visitor" appear straightforward. However, attempting to apply some of those activity criteria reveals ambiguity and inconsistency. The "after-sales service" category offers a useful illustration of this ambiguity. Both the IRPA and NAFTA expressly list after-sales service as a qualifying activity. In both, "after-sales service" includes after-lease and after-purchase service; this in turn includes the repair and servicing, and setting up and testing, of commercial or industrial equipment and the supervision of installers doing such work. On its face, arguably clear; in practice, however:

  • Both the IRPA and NAFTA specifically exclude "hands-on" installation and work generally performed by construction or building trades, such as electricians and pipe fitters, from the "business visitor" permitted activities. But precisely what constitutes "after-sales" or "hands-on" work can be unclear, leaving room for the individual immigration border officers to apply their discretion on a case-by-case basis, and ultimately uncertainty.
  • Entry to repair or service specialized equipment purchased or leased in the U.S. is a qualifying activity under both the IRPA and NAFTA – but only if the service is for newly purchased or leased equipment/software, or performed as part of the original or extended sales/lease agreement, warranty or service contract. But whether the services were intended to be performed as part of the original agreement is often unclear. And if the work to be performed isn't covered under a warranty or there's no service contract, a work permit is required for entry.
  • The "after-sales" category also covers people entering Canada to supervise the installation or dismantling of specialized machinery purchased or leased outside Canada, and those providing training services respecting such equipment. Under the Guidelines, where a Canadian employer has directly contracted for services from a foreign company, the foreign company's worker requires a work permit: although the worker's principal place of business and primary source of remuneration remain outside of Canada, their foreign employer receives payment for the service the worker is providing. Therefore, that worker's compensation is considered to derive from a Canadian source, the worker has entered the Canadian labour market, the "business visitor" criteria aren't met and the activities aren't work permit exempt.  

THE BUSINESS VISITOR (NON) APPLICATION PROCESS FOR U.S. (& OTHER VISA-EXEMPT) NATIONALS

Similarly, the process of applying for "business visitor" status – or more accurately, the lack of one – leaves room for clarification.

No official application. The lack of an official application is a perhaps welcome informality, but it creates uncertainty around whether a person qualifies as a "business visitor": Canadian immigration officers have wide discretion to accept or reject entry to Canada as a "business visitor", and that discretion is applied inconsistently at different ports of entry. 

No advance process. Adding to this uncertainty is that Americans and other visa-exempt foreign nationals can't seek authorization to enter Canada as a "business visitor" in advance, but must apply at a port of entry on arrival in Canada. And denial at that late time can create cost and business consequences. 

TIPS FOR BEING A GOOD (BUSINESS) VISITOR

Despite the issues inherent in the business visitor criteria and in the process (or lack thereof), obtaining "business visitor" status to enter Canada can be a fast and relatively stress-free process for visa-exempt foreign nationals, particularly those from the U.S.

Define the Activities. First, give some thought to the activities the businessperson intends to perform in Canada and the qualifying "business visitor" activities under IRPA and, if applicable, NAFTA. Determine which one(s) fit – or might fit. And write them down and bring them along.   

Documentation. A person who has determined their activities fall within the "business visitor" exemption must still ensure they prepare and have with them the proper documentation to demonstrate this. Here are five key documents a "business visitor" will not want to cross the U.S.-Canada border without:

  • A letter of invitation from the Canadian entity, if applicable, referencing the permitted activities and indicating how the businessperson's activities align with these.
  • A support letter from the foreign employer stating that the businessperson's principal place of business and remuneration remain outside of Canada, and that the profits resulting from the business activities will accumulate outside of Canada.
  • If the Canadian company and foreign company are affiliates, a corporate organizational chart and proof of affiliation.
  • If entering as after sales service personnel, proof that the software/equipment is "newly purchased/leased" or the original sales contract/purchase order indicating that the services to be preformed were part of the original or extended sales/lease agreement, warranty or service contract.
  • An Electronic Travel Authorization (eTA), unless you are a U.S. citizen or a foreign national with a valid temporary resident visa; visa-exempt foreign nationals, including those with a work permit, require an eTA.

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.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions