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Canadian entry issues in the global marketplace

By Yusra Siddiquee


In an increasingly globalized marketplace, the movement of personnel across borders to work at subsidiary offices or to provide short-term

advisory services is commonplace. Legal and human resources professionals must be aware of the appropriate duties that international employees and contractors can perform in Canada as business visitors, and those activities that require the issuance of a work permit. This article will review the key factors to consider in determining the Canadian immigration requirements when utilizing the services of foreign nationals.


Business visit vs. work permit

A foreign national is a person who is not a Canadian citizen or permanent resident. Foreign nationals who enter Canada temporarily to provide employment-related services require a work permit unless they fit into one of the specifically enumerated criteria for entry as a business visitor. The challenge is differentiating between business and employment activities. The common misconception held by Canadian companies is that if the foreign national is not being paid in Canada, then they are automatically a business visitor. In fact, the most important criteria in determining whether an individual is a business visitor or requires a work permit is an analysis of the actual duties to be performed in Canada – not the source of remuneration, duration of entry or nationality of the individual.


Business visit

A business visitor is a foreign national who seeks to engage in international activities in Canada without directly entering the Canadian labour market. In order for a business visitor’s activity to be of an international nature, the foreign national should not receive remuneration from a Canadian source and their employer’s principal place of business and profits should be outside Canada. It is, however, the second part of the test that causes the greatest amount of confusion in the analysis, “without directly entering the Canadian labour market.” This phrase can best be described as the foreign national not doing an activity that a Canadian could have theoretically been hired to undertake, and/or requiring Canadian expertise or presence.

Examples of permissible activities that either fit within the definition of a business visit or are specifically exempt from the requirement to obtain a work permit include:

  • Attending conferences or trade shows.
  • Attending meetings with parties to acquire familiarization on a product or process, or to receive an update on an international project.
  • General marketing activities to a prospective client.
  • Negotiating contracts.
  • Reviewing prospective project requirements.
  • Reviewing documents for the purpose of an international audit.
  • Providing after-sales service pursuant to an international warranty for a product manufactured entirely outside Canada.
  • Purchasing Canadian goods or services or receiving training in respect of goods purchased.
  • Receiving or providing intra-company training at a related company, including incidental production of goods or services that results from the training.
  • Selling goods, provided the goods are not being sold to the general public in Canada.
  • Leading a seminar or workshop of five business days or less.
  • Short-term entry of high-skilled foreign nationals to work in Canada for no more than 15 consecutive days or less in a six-month period, or 30 consecutive days or less in a one-year period. It is important to be aware that the days are counted on a consecutive and not cumulative basis. This relatively new exemption was implemented for public policy reasons to address brief and/or rare trips to Canada where the time and effort to obtain a work permit would be substantially higher than the intended duration of entry.

Business visitors are usually able to travel on short notice, subject to being a national of a country for which a Temporary Resident Visa (TRV) is required to enter Canada. Depending on the passport held by the foreign national, a business visitor may have to obtain a TRV at a Canadian Embassy or Consulate outside Canada as a prerequisite prior to travelling to Canada. Alternatively, foreign nationals who do not require a TRV may require an Electronic Travel Authorization (eTA), which is applied for online at the Government of Canada website. The entry requirements for foreign nationals can be divided into three groups of travellers:

  1. Travellers requiring a TRV: Generally, these are citizens of ‘developing world countries’ such as all African countries, most Asian countries, most countries of the former Soviet Union and many countries in South America.
  2. Travellers requiring an eTA: These are citizens of countries that are TRV-exempt such as Western Europe, Japan, Singapore, South Korea, Mexico, Australia and New Zealand.
  3. Travellers not requiring a TRV or an eTA: Citizens of the United States are exempt from both requirements.

It is important that HR professionals and managers are aware of the nationality of their business travellers to commence visa applications in a timely manner and to manage expectations. A TRV can take several weeks to issue, with no guarantee of success, while an eTA can usually be issued within a day. Regardless of nationality, it is recommended that all business visitors have an introduction letter from the Canadian company they will be visiting to present to Immigration authorities on arrival in Canada.


Work permit

If a foreign national undertakes an activity in Canada that could theoretically be performed by a Canadian, then a work permit is required. Work is defined as an activity for which wages, commission or other valuable consideration is earned, or an activity that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market. It is not relevant that there may not be a Canadian readily available to undertake the activity, nor is it relevant that the foreign worker will be paid from outside Canada.

Clear examples of functions requiring a work permit include a foreign-based employee who holds a title within a Canadian office, has direct reports in Canada or provides direction to a Canadian office. This captures senior managers who have cross-border managerial responsibility for employees or a function. The work permit definition also captures foreign management consultants engaged on a project for a Canadian client. Furthermore, where a Canadian office obtains the assistance of a foreign office’s employees to aid in the completion of a project, then those foreign employees are undertaking a work function for which a work permit is required.


Work permit categories

Once it is determined that a work permit is required, the next assessment to be undertaken is selecting the appropriate work permit category. There are over 20 work permit categories, each with its own procedure and processing time, and it is extremely important that the appropriate and most expedient category be selected. It is not the responsibility of Immigration, Refugees and Citizenship Canada to determine the most expedient category of entry for a foreign national. In fact, in the absence of a submission by the employer or legal counsel, Immigration officials may select the most difficult category under which to adjudicate the application. This can result in the refusal of a work permit application.

There are several expedient work permit categories. Canada is facilitative in permitting the entry of key employees to assist with the operations of an affiliate, subsidiary, branch or head office in Canada, pursuant to the intra-company transfer provisions. The Intra-company Transfer category is not tied to an applicant’s nationality, but rather requires that the applicant be employed with the related company abroad for at least one year prior to applying for a work permit. The simplified entry of business people is also addressed in several free trade agreements to which Canada is signatory.

Pursuant to NAFTA and the parallel free trade agreements with Chile, Colombia and Peru, Canada offers facilitative work permit options to American, Mexican, Chilean, Colombian and Peruvian citizens in strategic professions. The recent Canada-European Union Free Trade Agreement (CETA) has also created new categories for accelerated work permit issuance to EU nationals in limited scenarios. CETA, while certainly useful, is not as facilitative or comprehensive as NAFTA and the parallel South American agreements. Canada has also created a special category for the spouses of skilled workers and foreign students.

Depending on the permit category, and the nationality of the applicant, an application for a work permit can be processed in as quickly as one day, at the port of entry on arrival in Canada. However, if a foreign national does not qualify under one of the many “fast-track” work permit categories, then the Canadian employer is required to obtain a Labour Market Impact Assessment (LMIA) positive decision from Service Canada, our domestic labour authority. The Canadian company is required to provide comprehensive submissions to the authorities distinguishing the skill set of the foreign national from candidates in the Canadian labour market; evidencing through extensive recruitment efforts why a Canadian could not be hired or trained for the position. The total processing time to obtain a positive decision including the recruitment stage can take several months.

Alternatively, for certain technical occupations that comprise the Global Talent Stream of the LMIA, the Canadian company can complete a Labour Market Benefits Plan in which the company outlines specific activities it will undertake and targets it will achieve to invest in the skills and training of its Canadian employees, transfer the specialized knowledge of the foreign worker to Canadians and/or improve the company performance as a result of employing the foreign worker. The company commits to audits and evidencing its efforts several times per year. Although the processing time to achieve a positive decision is approximately two weeks, the ongoing reporting requirements are onerous.

It is therefore essential that legal and human resources professionals not only evaluate whether a foreign national is a business visitor or a worker, but also select the most expeditious and least onerous application category when a work permit is required. Depending on where the foreign national resides, they may also be required to complete an exam as part of the work permit process. Furthermore, if a foreign national has a serious medical condition or a criminal conviction, they can be refused entry to Canada. Being aware of these factors will enable professionals to manage human resource issues, as well as expectations.


Concluding remarks

It is important to be able to identify the duties that will trigger the requirement for a work permit and ensure that frequent business travellers are properly instructed on what to say and present to Immigration officials. The penalties for non-compliance with Immigration rules can result in fines to the company and exclusion of the foreign national from Canada for up to two years. To limit the risks associated with international travel, the development of a comprehensive Immigration policy is highly recommended.

Yusra Siddiquee is a partner at law firm Littler LLP.




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