For companies wishing to set up commercial operations in Canada, one of the important steps that sometimes gets lost in the shuffle of creating corporations, picking a location and navigating through the maze of Canadian legal issues, is the issue of bringing in temporary foreign workers to help get the business running in the crucial first year of operation.
A foreign-based company will typically want to bring in its own personnel at the outset to ensure that the operation conducts its day-to-day business in accordance with the parent company’s practices and standards. To accomplish this goal, an employee who is neither a Canadian citizen nor a Canadian permanent resident must successfully apply for a Canadian work permit.
Subject to the exemptions described below, Canadian immigration law generally requires that a foreign worker who wishes to work in Canada must first have his or her prospective employer in Canada obtain a positive labour market opinion from a local Service Canada office. The office will issue a positive labour market opinion if it determines that no Canadian citizens or permanent residents are available to fill the position, or that the impact of the foreign national in Canada would have a positive effect on the Canadian labour market. The worker may then apply for a work permit for admission to Canada, either through a Canadian embassy or Consulate abroad or, in some cases, at the border or port of entry.
The best way for an employer opening up a new office in Canada to avoid this first bureaucratic process and obtain a work permit for Canada is to apply through the Intra-Company Transfer Category, either under the North American Free Trade Agreement (NAFTA) or through the Global Regulations under the Canadian Immigration and Refugee Protection Act. NAFTA entry to Canada is open to citizens of the United States and Mexico, while entry under the Global Regulations is open to citizens of all other countries in the world. A Service Canada labour market opinion is not required for individuals who qualify under one of these processes.
To qualify for these transfer categories, a person must be intended to occupy a managerial or executive position, or a position that requires specialized knowledge. Specialized knowledge means special knowledge of a company’s product or service and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. Managerial capacity refers to a position in which the employee primarily manages the organization, or a department, subdivision, function or component of the organization. Under the NAFTA category, individuals admitted to Canada to open an office or to be employed in a new office may be issued an initial permit for a maximum period of one year.
Another criterion for admission in either transfer category requires the company in Canada to be doing business, which means regularly, systematically and continuously providing goods and/or services. (Note that the definition does not include the mere presence of an agent or office in Canada.)