Executive Transfers and Immigration
Canadian immigration rules are very complex and change frequently. Foreign companies doing business in Canada often have to send some of their employees to Canada to perform a variety of tasks in Canada, including attending business meetings, training, after-sales services and operations. A work permit may be required for some of these activities in Canada. Both the Canadian employer and the foreign national can face serious legal consequences when the required legal authorization to work in Canada is not obtained.
As a general rule, foreign nationals who wish to work in Canada, even temporarily, must obtain authorization to work in Canada in the form of a work permit, unless the foreign nationals are admissible to Canada as business visitors or under a work permit exemption class.
Temporary business visits
Business visitors engaged in international business activities in Canada, whose main source of income comes from outside Canada and who will not enter the Canadian labour market, may enter Canada as business visitors without the need for a work permit. In addition, the foreign country's country of citizenship will determine whether a temporary resident visa is required to travel to Canada. Foreign nationals from a temporary resident visa-exempt country (e.g. United States, United Kingdom, Australia, France, etc.) do not require a temporary resident visa to travel to Canada, but do require an Electronic Travel Authorization (eTA) to travel to Canada.
The most common activities permitted in this category of business visitors are:
1. Finding potential customers or introducing potential customers
2. Negotiating a contract with a Canadian client on behalf of a foreign company
3. Attend coordination meetings with representatives of a Canadian company related to the U.S. employer (subsidiary, parent or sister company, etc.), discuss certain policies or activities common to both companies.
4. Attend board meetings of a Canadian company
5. Participate in a business conference
Certain other activities are explicitly considered commercial activities by Canadian immigration regulations and guidelines or under the Canada-United States-Mexico Agreement (CUSMA). Examples of such activities include:
1. Entering Canada to provide after-sales services
2. Entering Canada to provide training to employees of a Canadian company or to receive training from a Canadian company when the foreign company and the Canadian company are affiliated entities, such as a parent/subsidiary relationship
In determining whether or not the foreign national could enter Canada as a business visitor, other criteria to be considered include the employee's source of remuneration, the employer's principal place of business, the duration and frequency of planned business visits, and whether or not the employee would perform practical work while arriving in Canada. However, short-term visits will not be systematically considered business visits, the key factors being: (i) the nature of the activity to be performed in Canada and (ii) on behalf of which company (i.e. a foreign company or a Canadian company) the services will be provided.
While many cases are crystal clear, in others, the employee's eligibility for admission as a business visitor will require careful analysis and the preparation of complete documentary evidence to support the application to enter Canada as a business visitor.
Work permit applications
A work permit is usually required when a foreign national is working in Canada. Work is defined in the Immigration and Refugee Protection Regulations as an activity for which wages are paid, or commissions are earned or in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.
This means that the Government of Canada may consider a foreign national working in Canada even if he or she is not remunerated in Canada if the foreign national's activity in Canada may be in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market. In general, work permits are issued under two programs: 1) the Temporary Foreign Worker Program, where a Labour Market Impact Assessment is required, and 2) the International Mobility Program, where a Labour Market Impact Assessment is not required. The work permit is either open without employment restrictions or closed with employment restrictions for the employer, profession and place of employment.
Labour Market Impact Assessment
Unless there is a Labour Market Impact Assessment (LMIA) exempt work permit category, the employer in Canada must first obtain a positive LMIA opinion from Employment and Social Development Canada (ESDC). Before applying for an LMIA, the employer must advertise the position while meeting ESDC's advertising criteria for at least four consecutive weeks and demonstrate that there are no qualified Canadian citizens or permanent residents for the advertised position.
The positive LMIA opinion confirms the genuineness of the job offer and the likelihood of its neutral or positive economic effect on the Canadian labour market. In addition, the positive LMIA is only issued if the employer provided all foreign employees with wages and terms and conditions of employment that were substantially the same as those set out in the initial offer of employment.
The LMIA opinion will be based on the following criteria:
1. Job creation or retention for Canadians expected from the foreign worker's contribution
2. Transferring skills and knowledge to benefit Canadians
3. The labour shortage that work could likely address
4. Wages and working conditions offered, in accordance with Canadian standards
Efforts to hire or train Canadians for the position.
Any ongoing labour dispute in the company at that time
Compliance with all commitments previously made by the employer.
Particular attention should be paid to recruitment efforts. With certain exceptions; a positive LMIA is only issued once the employer has proven that it has advertised the position strictly following the guidelines issued by ESDC. "Reasonable efforts" are not enough.
Once ESDC has issued a positive LMIA, the prospective employee can apply for a work permit to Immigration, Refugees and Citizenship Canada. When the prospective employee is a citizen of a visa-exempt country, the work permit application may be processed at the port of entry upon arrival in Canada.
A prospective employee from a visa-exempt country would need an eTA to travel to Canada.
If the place of employment is in Quebec, the consent of the Ministère de l'Immigration du Québec (MIFI) is usually required, and a separate application for a Quebec Acceptance Certificate (CAQ) is required. The LMIA will be issued jointly by ESDC and the MIFI, along with the Quebec Certificate of Acceptance.
It can be difficult to obtain a positive LMIA because the onus is on the employer to demonstrate a genuine need to hire a foreign worker for the position.
Labour Market Impact Assessment exemptions
LMICs are not required in all cases. Several exemptions are provided in the Immigration and Refugee Protection Regulations and under provisions of international agreements, such as the Canada-United States-Mexico Agreement (CUSMA), the General Agreement on Trade in Services (GATS), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Canada-European Union Comprehensive Economic and Trade (CETA). In most cases, these requests are the fastest and most preferred options.
CUSMA provisions for foreign workers
Entry under CUSMA is limited to citizens of the United States and Mexico, who can take advantage of LMIA exemptions designed for professionals, intra-company transferees, traders and investors. CUSMA does not apply to permanent residents of the United States or Mexico.
Please note that the criteria for entry into Canada, the documentation required and the length of authorized stay in Canada will vary from category to category and will depend on the activity proposed by the applicant in Canada. For example, intra-company transferees to CUSMA who hold senior management positions can stay in Canada for up to seven years. On the other hand, intra-company transferees with specialized knowledge may remain up to five, with a few exceptions.
General Agreement on Trade in Services (GATS) - Work permits for intrasyseaux transferees
Canada currently has free trade agreements with the United States, Mexico, Chile, Peru, Colombia, Korea, Panama, the EU and the United Kingdom.
Australia, New Zealand and Japan, and these free trade agreements contain special provisions for work permit applications, and an LMIA is not required.
This means that global mobility of skilled workers and employees is now more convenient.
If Canada does not have a free trade agreement with a designated country, the General Agreement on Trade in Services (GATS) could be used to facilitate the temporary transfer of employees from an office abroad to work temporarily in Canada when specific requirements are met. The general conditions are that the employee is currently employed by a multinational corporation and is seeking to work in a parent, subsidiary, branch or affiliate of that company; is transferred to a senior manager, executive or specialized knowledge position and has been continuously employed by the company that intends to do so outside Canada in a similar full-time position for at least one year in the three years immediately preceding the date of the initial work permit application.
Other LMIA Exemptions
Several other LMIA-exempt categories are provided based on Canadian interests. These are intended to facilitate the entry into Canada of foreign workers whose employment will have significant economic, cultural or social benefits for Canadian citizens or permanent residents or create reciprocal employment for Canadians in other countries. For example, spouses and common-law partners of temporary skilled workers or students will be eligible for an "open" work permit, allowing them to work for any employer in Canada without employment restrictions. Francophones working outside Quebec are also eligible for an LMIA-exempt work permit.
The documents required for these applications vary depending on the category of work permit and the applicant's situation.
A temporary resident in Canada may, at some point, wish to obtain permanent resident status. There are different categories for immigrating to Canada as a permanent resident. In general, dependent children under the age of 22 and single can accompany parents to Canada and be included in parents' applications for permanent residence.
One of the most common categories for immigrating to Canada as a permanent resident is the economic class, where a job offer from a Canadian employer is not required.
The economic class includes the Canadian Experience Class, the Federal Skilled Worker Program and the Federal Skilled Trades Program.
Since January 2015, a new case management system called Express Entry has been implemented in Canada to better manage the flow of qualified applicants for permanent residence based on their ability to settle and successfully participate in Canada's economy under the economic class. Foreign nationals interested in immigrating to Canada under the Canadian Experience Class, the Federal Skilled Worker Program, or the Federal Skilled Trades Program should create an online Express Entry profile. Candidates with the highest Express Entry CSE score in the online Express Entry pool may receive an invitation to apply for permanent residence.
The Government of Canada has announced that in 2023, it may issue invitations to apply based on occupation, education or language instead of the highest CRS Express Entry score. The Express Entry system applies to applicants who intend to settle in any province except Quebec. The Government of Canada aims to process Express Entry applications within six months. Other categories now take two years or more.
Quebec has its own selection process for permanent residents. In addition, various provincial programs are available to business people (self-employed, entrepreneurs or investors) and skilled workers.