I. Practice Advisory

Be Prepared for Business Visitors to Face Greater Scrutiny at Canadian Ports of Entry

We have been receiving reports at various ports of entry across Canada that the Canada Border Services Agency (CBSA) officials are closely examining applications made at the port of entry by Business Visitors. In fact, CBSA is taking a hard-line approach to those individuals misrepresenting themselves as Business Visitors when they intend to perform “work” in Canada, as defined by the Immigration and Refugee Protection Act.

In some instances, these individuals have been detained for significant periods of time at secondary inspection and ultimately instructed to return to the port of entry with a work permit application. In other cases, after extended interrogation, the CBSA officer has allowed individuals to enter Canada, but cautioned that he or she will not be admitted again without obtaining a work permit. In either situation, a “warning” or a refusal of an application is likely to be entered into the Canadian government’s database.  These negative data entries could have long-term implications - - not only for the individual employee, but for the employer’s entire Canadian immigration program thereby adversely affecting the mobility of employees seeking to enter Canada.

There are potential long-term consequences of non-compliance with the Immigration and Refugee Protection Act, not only for that foreign national, but for the company where he or she works.  Therefore, employers should conduct a thorough review of the company’s policies on business visitor travel when forming the company’s immigration strategy.

CBSA officials have been increasingly scrutinizing the purpose of travel into Canada to ascertain whether the proposed activities will constitute “work” requiring a work permit. While foreign national employees are encouraged to enter Canada as “Business Visitors” to attend passive meetings, conferences, information sharing events, or marketing and conducting sales presentations, it is unlawful to use the business visitor category to perform work activities or productive work, even if it is for a short period of time. Obtaining proper immigration advice prior to entering Canada as a business visitor is vital.  In order to qualify as a business visitor, very specific criteria must be satisfied on a case-by-case basis; the business visitor regulations cannot be applied uniformly to all situations.

Despite the heightened level of scrutiny, our clients continue to enjoy success with this category based on a thorough legal analysis of the proposed purpose of travel, the length of stay, frequency of visits, the underlying employment relationship, and by ensuring that our clients are equipped with the appropriate documentation to facilitate their entry into Canada.  Seyfarth Shaw works with its corporate clients to devise an immigration strategy that aligns with the employer’s business needs while ensuring compliance with the requirements of Canadian immigration laws.

II. Practice Pointer

Renewal of Intra-Company Transferee Work Permits: Returning to Canada After the Expiry of a Work Permit

Earlier this year, the Canadian government issued a change in policy regarding the eligibility requirements under the intra-company transferee work permit category.  Indeed, as part of the new requirements, the foreign national must now be currently employed by the enterprise outside Canada at the time a new work permit application is filed with the Canadian authorities.   While this new requirement is easily satisfied in the context of an initial transfer to Canada, it is far from being the case in situations where the foreign national leaves Canada while his/her current work permit is still valid and then re-enters Canada after it has expired.  Indeed, under this scenario, the foreign national is not usually employed by the foreign entity at the time of re-entry into Canada and would therefore be considered filing a new work permit application upon re-entry, hence triggering the requirement to be employed by the foreign entity.

As this poses a practical difficulty for almost every foreign national in this situation, we believe that the chances of successfully being re-admitted into Canada as a worker without having to meet the foreign employment requirement will increase significantly if a work permit extension is filed with the Case Processing Centre in Vegreville prior to the foreign national’s departure from Canada and while his/her current Canadian work permit is still valid.  Upon re-entry, we recommend that the foreign national carries with him/her a copy of the work permit extension pending with the Case Processing Centere as well as a new border application.

III. Government Updates

Student Work Abroad Programs: The Government of Canada’s International Experience Canada Program to Promote Youth Mobility

Citizenship and Immigration Canada (CIC) has entered into numerous reciprocity employment agreements with several countries to form the International Experience Canada (IEC) program. It encompasses what is commonly known as the “working holiday” programs. Applications from foreign nationals are reviewed first by Department of Foreign Affairs and International Trade (DFAIT) and then by CIC at missions abroad.

Essentially the IEC program enables students or recent graduates between the ages of 18 and 30 to obtain an open work permit to work in Canada pursuant to either bilateral arrangements between Canada and foreign governments or through participation in organizations recognized and monitored by DFAIT.  This program is known as the SWAP.

Notably, SWAP is a great tool if you are starting to recruit summer associate or student positions in Canada. It is essentially a program offered to citizens of various countries and the requirements vary depending on the national origin of the candidate.

For Americans, the SWAP program enables students or recent graduates to work in Canada for up to twelve months if the applicant is under the age of 30 . The student must have studied at an accredited U.S. college or university.  The applicant cannot be married, unless the spouse is also individually eligible and participating in the Work in Canada program. If the applicant has dependent children or a criminal record, he or she will not be eligible for the program. The applicant cannot have a criminal record and must make provisions for stipulated medical insurance. The student is not required to have a job offer and potential Canadian employers are not required to go through the Labour Market Opinion process.

Once an open work permit is granted through the program, one is still restricted from working in the following fields: childcare, health services, or teaching (in primary or secondary schools).  In order to renew work authorization, the foreign national must qualify under another work permit category and an employer may be required to obtain a Labour Market Opinion. Therefore, if you believe a foreign national may qualify for this position, it is important to devise a long-term Canadian immigration strategy in order to ensure that there is continuous work authorization. Please note that American students are permitted to repeat SWAP in Canada after they have completed another academic term in the U.S.