As we approach 2020, employers have increasing options for bringing skilled workers into Canada, while opportunities for employees to head south, to the United States, are increasingly limited. Field Law's Immigration Group projects three trends to watch in 2020:
Work Permits Under Canada's Trade Agreements
Canada's international trade agreements continue to provide options for Canadian employers wishing to utilize international workers or send their employees across the border.
The "new NAFTA", known as USCMA, continues to be the model for the human mobility provisions under trade agreements. The USCMA - recently signed though not implemented - maintains the same advantages as NAFTA from an immigration perspective. Under USCMA, citizens of the US, Mexico and Canada will continue to enjoy the ability to work in each member country in a broad range of categories including treaty investors/traders, professionals and intra-company transferees (as long as employed for at least one year prior to transfer). Put simply and notwithstanding President Trump's rhetoric, the new deal has changed very little in terms of immigration.
In 2018, Canada implemented the Comprehensive Economic Trade Agreement (CETA), which opened doors to the European labour market. Additionally, the CPTPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) is leading to new mobility options for ten other countries in the Asia-Pacific region: Australia, Brunei, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.
Both CETA and CPPTP largely mirror NAFTA with some minor differences. These differences have led to some uncertainty in their application. For example, the definition of independent professionals is expanded in CETA to include "management consultants", CETA also requires that the CETA citizen be "self-employed" and limits their work permits to 12 months (with possible though unclear extensions up to 24 months). Despite the evolving interpretation of these agreements, these are new and useful tools for employers seeking to expand their operations in a member country and/or recruit employees to Canada.
Difficulties at the US Border
While the USCMA remains positive for employers with cross border operations, the border itself may not always be as friendly.
There has been little to no change in US immigration law, yet the policies enforced by US Customs and Border Protection officers at ports of entry have evolved significantly under the current administration. Employees travelling to the US for business purposes are facing an increasing number of questions regarding planned activities, length of time in the US and, frequency of travel. Additionally, those with work permits for occasional travel are seeing increased scrutiny and frequent requests for additional documentation not previously required. In some instances, Canadian employees are denied entry into the US for discretionary reasons, and in more extreme cases, barred entry to the US for several years.
As the workforce overall becomes more mobile, both employers and employees need to be aware of the potential outcomes and consequences of business travel. While, entering into Canada for business or work purposes remains a relatively streamlined process, Canadian officials continue to require the completion of all relevant paperwork before the employee enters Canada or is presented at the port of entry.
Relative Good News at the Canadian Border
While the US tightens its rules, Canada's Global Talent Stream (GTS) continues to be a sought after measure for Canadian employers who:
- Are looking to expand in the STEM (Science, Technology, Engineering and Mathematics) or tech sector (Category B); or
- Are willing to commit to the hiring of more Canadian citizens/permanent residents (Category A).
Both GTS streams have proven to be effective and efficient ways to recruit and hire Global talent (often within the ten business day processing.) The Organization for Economic Co-operation and Development has even lauded this relatively new program (2017).
Employers outside of the STEM sector or unwilling to commit to significant labour expansion, however, are still subject to the dreaded LMIA (Labour Market Impact Assessment). The LMIAs' red tape continues to result in delayed review of the merits of applications, even of highly skilled employees, making processing times of LMIAs prohibitively long for some employers.
Finally, and most recently, Canadian employers should be aware that, going forward, inland Canadian employees are now required to provide biometrics to the Canadian government.
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