Author: Benjamin A. Kranc, Kranc Associates
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Despite the musings of some, Canada remains an independent country, with a distinct immigration system – and notably, distinct from the American system. Travelling to Canada for work or for business has various legal issues, and companies seeking to send workers / business visitors to Canada must be cautious about their ability to do so.
(1) Overview of Considerations
In a spider web of issues, we must first break down procedural vs. substantive issues. Certainly, these can impact each other, but to properly navigate the system, it is important to look at them distinctly.
Procedure relates to how applications are processed. Substance relates to the legal considerations within an application –whether it qualifies someone to secure entry to Canada for work or business travel, and on what basis.
(2) Procedural Issues
(2)(a) Visas / Work Permits / Electronic Travel Authorisations (eTA)
It is important to first understand the distinction between a work permit and a visa. A visa is a document that permits travel to Canada. A work permit permits work in Canada. These are two distinct matters/documents. That being said, where a person requires a visa (see below), the process to secure both the work permit and visa are combined into one application.
(2)(a)(i) Visas
In terms of how to apply, the first question is whether a person needs a visa. The list of countries whose citizens requir e a visa to travel to Canda can be found at https://ircc.canada.ca/english/visit/visas.asp. Again, where a work permit is involved, these processes are combined. Note that the visa (and work permit approval) will be issued by the relevant embassy/consulate, but the work permit will be issued on arrival in Canada. Where no visa is required (which would generally be the case for EU citizens), the entire process of adjudication occurs upon arrival at the Port of Entry in Canada.
(2)(a)(ii) Electronic Travel Authorisations
For those who do not need a visa, they first require an eTA. There are some exceptions (e.g. US citizens), but eTAs will generally be required of EU citizens. It is important to note that an eTA is NOT a substitute for any other process discussed in this article. An eTA essentially vets for inadmissibility (notably, criminality), but is not in any way determinative of the substance of the matter (e.g. 'do you qualify as an intra-company transferee?'). That is, those that do not need a visa can seek their work permit directly at the Port of Entry, and the substance of the case still needs to be adjudicated by an officer (and it is possible that the answer will be 'no'). The obtainment of an eTA does not change this. In essence, the Port of Entry substantive application should be looked at as if the eTA system did not exist.
(2)(b) Pre-Screens
In addition to the above, there is one procedural process which will be of value in the corporate immigration sphere: In many situations, where a person does not need a visa, it is possible, to have the case reviewed in advance, rather than just get on a plane and take your chances on arrival. This obviously adds comfort to the process, and usually takes 1-2 weeks to process.
(3) Substantive Issues
Now, let's consider whether a person may in fact be permitted to enter Canada, and on what basis. In this regard, we must now divide the considerations between matters that necessitate work permits, and those which may be 'business visitation'. Though the term 'business visitor' is often thrown around lightly, knowing when one crosses the line between business visitor and worker is actually very difficult, and getting it wrong, may mean denial of entry (or other ramifications).
Qualification for any type of status - business visitor or worker - should never be taken for granted.
(3)(a) Business Visitors (BV)
The law allows people to enter the country for 'international business purposes'. However, the definition in this regard is very vague. It is often said that it means that no productive work is being conducted, but this is not fully determinative. Some activities are commonly seen as BV activities, such as 'meetings', or providing intra-company training. But there is no definitive demarcation, and each case must be considered individually. Getting it wrong may mean denial, return to the home country, and consideration of whether a work permit is feasible. Note that people often talk of factors such as remuneration remaining outside Canada, and brevity of visit, but these factors are also not fully determinative.
(3)(b) Work Permits
Work Permits divide into two broad categories: those that need a Labour Market Impact Assessment (LMIA), and those that do not.
(3)(b)(i) LMIA-based Work Permits
LMIAs are the gate by which the Canadian government seeks to regulate the flow of foreign workers (and therefore, protect the Canadian labour market). LMIAs generally require a company to recruit, prove they could not find a Canadian, and carry out some other processes before the hiring of a foreign worker can be justified. There are some subsets of LMIAs, such as the Global Talent Stream, which streamlines LMIA considerations for certain occupations. The availability of such non-standard LMIAs must be considered on a case-by-case basis.
(3)(b)(ii) Non-LMIA-based Work Permits (also known as the 'IMP' – International Mobility Program)
Based on various government policies, however, the law allows for certain exemptions from the need for an LMIA. Quite often, the essence of the matter becomes whether such a non-LMIA work permit can be justified, to bypass the LMIA process. This will make life easier for everyone.
Examples of non-LMIA work permit categories include:
- Intra-Company Transfers
- As with all other discussions herein, eligibility should not be taken for granted. There are various legal issues including the relationship of the companies, the position of the person, the nature of the work, etc.
- Professionals under various free trade agreements
- Including CETA – the Canada/EU Free Trade Agreement (as well as the equivalent UK version – the CUKTCA)
- Reciprocal Benefit
- Where a company shows that it gives opportunities to Canadians abroad, it may be able to justify hiring foreign workers in Canada
- Frankophone Mobility
- A program for French speakers destined for provinces other than Quebec
- Significant Benefit
- A discretionary category that can be of value in crucial situations
There are further categories, and each of the above have various legal requirements and details, and, yet again, qualification should never be taken for granted. (4) Other Considerations
(4) Other Considerations
There may be other considerations including criminality of an applicant, and how to overcome it, compliance requirements, and other factors beyond the scope of this article, but all these must be considered in each case.
(5) Summary
Canada's corporate immigration system provides both opportunities and obstacles. However, with proper navigation and understanding of the issues, companies can secure necessary foreign workers / business visitors to carry out their functions in Canada.
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.
