Landing a contract with a Canadian customer can mean that you or your employees may need to enter Canada to perform work. In recent years, immigration authorities at the Canadian border have increased the level of scrutiny applied to those seeking entry to Canada to work or do business. As a result, many businesses which used to send their employees to Canada routinely have experienced inconvenient refusals or delays at the border.
How do you make sure that your employees will be able to enter Canada on schedule? How can you prepare them for increased scrutiny at the border? There are a few options available to foreign employers which may be helpful to you:
Professional Work Permits
If the work to be done in Canada is professional in nature, your employees may be eligible for Professional Work Permits. This type of work permit is based on international treaties such as NAFTA and other bilateral agreements, which means that it is only available to citizens of certain countries, including the US, Mexico, Chile, Peru and Columbia. Guidelines for Professional work permits also limit the type of professional work which is eligible and specify the educational credentials your employees must hold in order to qualify. Because Professional work permits are exempt from Labour Market Opinions, the process is relatively simple, speedy and low cost as compared to other types of Canadian work permits. For this reason, professional work permits are an excellent option for engineers, computer systems analysts, management consultants, scientists, scientific technicians, and a range of other professionals.
Professional work requiring less than 90 days of work in Canada may also qualify for a GATS Professional work permit. GATS work permits are available to credentialed professionals such as engineers and senior computer specialists who are citizens of any of the 159 World Trade Organization member countries; however, the list of eligible occupations is much more limited than the NAFTA list.
Work without a work permit—After Sales Service
Canada’s immigration system allows some foreign nationals to work in Canada without work permits if they are providing after sales service to Canadian customers. Even though no work permit is required, gaining entry to Canada as an after sales service provider may still require as much documentation and advance preparation as some work permit applications. However, like the Professional work permit categories it is typically faster and requires less effort than work permits based on Labour Market Opinions.
To qualify, the contract with your Canadian customer must be primarily for the sale of commercial goods such as industrial equipment or software and it must include provision for the installation of the product, training, or other after sales services. A service agreement which is separate from the contract for the sale of goods is not eligible.
The after sales service work permit exemption does not cover hands-on work in the building or construction trades. If your product requires this type of hands-on installation work, your employees will only be eligible to enter Canada if their work will be purely supervisory. In this case, the immigration authorities may expect you to show that Canadians have been hired locally to do the hands-on work.
Permission to do after sales service work in Canada is typically granted for short periods less than 6 months, but longer authorizations may be available depending on nature of the product sold and the scope of the services provided for in the sales contract.
If you anticipate doing business in Canada on a long-term basis, you may consider setting up a branch or subsidiary in Canada. Having a branch or subsidiary may enable you to transfer key executive, managerial and specialized knowledge workers from your parent company to Canada as needed. People you intend to transfer must have worked full-time for the parent company in an equivalent capacity for at least one year before the transfer and must be currently working for the parent company at the time of application. This type of work permit applies both to employees or managers who will work in Canada for several years at a time and to those who will divide their time between your Canadian office and the parent company.
The immigration authorities are wary of issuing intra-company transfer work permits for companies which might not end up actually doing business in Canada. As part of your application, you will need to show that your new Canadian operations are viable, typically by providing a business plan which includes evidence that you are leasing business premises in Canada and intend to hire Canadians in the future.
While the intra-company transferee category allows for a much broader range of activities than the professional work permit categories, not all types of work qualify. The work in Canada must be in an executive or senior managerial position or it must require specialized knowledge. Specialized knowledge must be both uncommon in your industry and critical to the well-being of your Canadian business.
Work permits based on a Labour Market Opinion
If it seems like one of the above options does not fit your situation, you will likely require a positive Labour Market Opinion (LMO) before your employees can apply for Canadian work permits. Depending on the nature of the work, your Canadian customer may need to assist you in making the application for the LMO. In some cases, foreign employers are granted LMOs directly.
The premise of the LMO system is that the Canadian government will allow companies to hire foreign workers for jobs in Canada if there is a demonstrated labour shortage in the occupation and/or hiring foreign workers will benefit the local labour market in some way. Compared to the other options discussed, an LMO application is much more time consuming. To obtain one, you must usually advertise the job in Canada for at least 4 weeks and allow 1-3 months for processing of the LMO application, during which time your job advertisements must remain active. You must wait to receive the positive LMO before your employees can apply for their work permits at the Canadian border or visa office.
Crossing the border with confidence
Sending qualified workers to Canada need not be a headache; however, making sure the process goes smoothly does require an understanding of the main avenues available under Canadian immigration law.
In some cases, you may need to begin the application process months before your employees are scheduled to arrive in Canada, while in other situations the lead time is much shorter. In either case, your employees must be prepared to show appropriate documentation at the border.
“No two businesses are exactly alike, and as such no two applications for work in Canada will look exactly the same,” said Attorney David Cohen. “It is important that businesses and their employees are well versed in the rules and requirements surrounding temporary work in Canada so that their applications are accepted the first time around.”
Expanding into the Canadian labour market can greatly benefit your business, as well as your Canadian clientele. With a little advanced planning and preparation, you and your employees can rest assured that your work can be carried out unhindered by unexpected immigration problems.
If you have questions about the work permit application process, or for more information on obtaining work authorization, please contact Campbell Cohen Law Firm today.