Before retaining a company or hiring a contractor from the United States to perform work in Canada, businesses must consider the implications from an immigration law perspective. It may come as a surprise that the worker can be prevented from entering Canada if he or she does not first have the appropriate paperwork in place. This article will review some of the basic immigration implications that should be considered before having an employee based in the United States perform work in Canada.
Generally speaking, an individual that is not a Canadian citizen or permanent resident of Canada must obtain a work permit before working in Canada. For the purposes of Canadian immigration law, “work” is defined in section 2 of the Immigration and Refugee Protection Regulations (IRPR) as an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market. Work includes a technician coming to Canada from the United States to conduct repairs, or perform a contract, even if he or she will not be paid directly by the Canadian company for whom he or she is doing the work.
Before the foreign worker can apply for a work permit, the Canadian company must first obtain a positive Labour Market Opinion (LMO) from Service Canada unless the employee can meet a specific exemption category from the LMO process. The processing times for an LMO application vary in each province and fluctuate from time to time depending on the number of applications received and the resources allocated to that particular office. If an LMO is required, it could significantly delay the worker’s entry into Canada. For example, it could take 8-10 weeks to process an LMO application in Alberta. In addition, the Canadian company would have to demonstrate it made efforts to recruit a Canadian citizen or permanent resident before submitting the LMO application by complying with Service Canada’s minimum advertising requirements. This usually includes advertising the position for a minimum of 14 calendar days. Provided that a positive LMO is issued by Service Canada, the foreign worker then needs to be provided a copy of it in order to apply to Citizenship and Immigration Canada for a work permit.
LMO EXEMPTIONS AND BUSINESS VISITORS
A foreign worker may be able to apply directly for a work permit without the need for an LMO if the worker qualifies under an exemption category. One of the more common exemption categories used is the NAFTA (North American Free Trade Agreement) Professional category. This category applies to specific occupations such as accountants, architects and engineers that are doing work in their profession for a company in Canada. They must be citizens of the United States or Mexico, be qualified to work in their profession, have pre-arranged employment or a contract with a Canadian employer, and provide professional level services in the field of qualification. In other words, a foreign worker with an engineering degree and a professional designation may not qualify as a NAFTA Professional engineer if he or she will be providing services in Canada that are completely unrelated to engineering.
Some workers may qualify for entry to Canada as a business visitor without the need for a work permit. A business visitor is a foreign national who seeks to engage in international business activities in Canada without directly entering the Canadian labour market, the primary source of remuneration is outside Canada and the principal place of business remains outside Canada. Included in this category are persons providing after-sales service. After-sales services include those provided by persons repairing and servicing, supervising installers, and setting up and testing commercial or industrial equipment (including computer software). “Setting up” does not include hands-on installation generally performed by construction or building trades (electricians, pipe fitters, etc.). This category also applies to persons seeking entry to repair or service specialized equipment, purchased or leased outside Canada, provided the service is being performed as part of the original or extended sales agreement, lease agreement, warranty, or service contract. Where the work is not covered under such an agreement, a work permit and an LMO may be required.
Even if the foreign worker has been provided a copy of the positive LMO for his position or it can be demonstrated that an LMO is not required, the foreign worker may still not qualify for a work permit or be prevented from entering Canada. The foreign worker must demonstrate to the Canada Border Services Agency (CBSA) or immigration officer at the port of entry (i.e. airport or border crossing) that they have the qualifications required for the position and must not pose a criminal, security or health risk to Canadians. For example, a citizen of the United States with an impaired driving conviction could be considered “criminally inadmissible” and be denied entry.
TEMPORARY RESIDENT VISAS AND MEDICAL EXAMS
Applicants from visa-exempt countries who have a positive LMO, or who qualify under an LMO exemption category, may be able to apply directly at the port of entry (i.e. airport or border crossing). Port of entry applications can significantly speed up the application process if the Canadian company needs the foreign worker in a hurry. However, not all applicants can apply for a work permit directly at the port of entry, such as those workers from a country that require a visa to transit to Canada.
There is often confusion caused by the terminology used in Canadian immigration matters. Canadian work permits are often referred to, incorrectly, as visas. A visa in Canada is normally a reference to Temporary Resident Visas, or “TRVs”. Citizens of some countries are required to obtain a TRV in order to enter Canada, including Mexico as of July 14, 2009. This is in addition to any work permit requirements. The person must apply for the TRV at a visa office outside of Canada prior to appearing at a port of entry. Citizens of the United States do not require a TRV. However, the foreign worker located in the United States that is hired by the Canadian company, or the worker being sent by the contracting company in the United States, may not necessarily be a citizen of the United States. As a result, it is important for the parties to know if the person requires a TRV before trying to enter Canada. If the foreign worker requires a TRV, this requirement could further delay the person’s entry into Canada. The length of this delay will vary depending on that particular visa office’s current processing times. For example, it could take approximately 4-6 weeks for the person’s TRV and work permit to be processed at a visa office. Some applicants may also be required to undergo a medical exam before entering Canada. If a medical exam is required by the local visa office, the processing times would be even longer.
A worker coming from the United States may encounter a number of issues that could result in a denial of his or her entry into Canada. The person’s entry may require a TRV application, a medical exam, recruitment activities for a minimum period of time and an LMO application before a work permit application is even submitted. Canadian companies should also not assume that the requirements of hiring for one position will be exactly the same for another person in a similar position. For example, a United States citizen who qualifies as a NAFTA Professional engineer may be able to apply directly at the port of entry for a work permit and be able to enter Canada relatively quickly to perform the work. On the other hand, it could take months to obtain a work permit for a citizen of another country that requires a TRV and does not qualify under an LMO exemption category to perform the same engineering services. Care must be taken to resolve these issues before the worker’s services are required, so as not to be caught off guard by the delay in processing immigration documentation that can occur.