Regulatory framework and trends

Trends and developments

Have there been any notable recent trends or developments regarding business-related immigration in your jurisdiction, including any government policy initiatives?

On June 12 2017 the government launched the much-anticipated Global Skills Strategy, a new stream of the Temporary Foreign Worker Programme, which aims to help innovative companies to acquire highly skilled talent more quickly.

Highlights of the Global Skills Strategy include:

  • a two-week processing standard for work permits if the Canadian employer is:
    • referred to the Global Talent Stream by a designated partner; or
    • hiring a worker in a position on the Global Talent Occupations List;
  • a new work permit exemption for certain highly skilled occupations for short stays of 15 days every six months or 30 days every 12 months; and
  • a new work permit exemption for researchers working on research projects at publicly funded institutions for stays of 120 days every 12 months.

Domestic law

What legislation and regulations govern immigration in your jurisdiction?

The primary statute governing immigration law is the Immigration and Refugee Protection Act, accompanied by the Immigration and Refugee Protection Regulations. Other relevant legislation includes the Citizenship Act.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Canada is party to the following free trade agreements:

  • the North American Free Trade Agreement;
  • the Canada-Chile Free Trade Agreement;
  • the Canada-Peru Free Trade Agreement;
  • the Canada-Colombia Free Trade Agreement;
  • the Canada-Korea Free Trade Agreement; and
  • the General Agreement on Trade in Services.

Citizens of the United States, Mexico, Chile, Peru, Colombia, Korea or one of the 124 countries that are signatories to the General Agreement on Trade in Services may be eligible to apply for a work permit under these international treaties.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers?

Immigration laws are mainly enforced by the following federal government departments:

  • Immigration, Refugees and Citizenship Canada (IRCC) – responsible for Canadian immigration and citizenship; and
  • the Canada Border Services Agency – responsible for border services and Customs.

In addition, Employment and Social Development Canada is responsible for labour market impact assessments.

Can the decisions of these authorities be appealed?

If the IRCC refuses an immigration application, the right to challenge the decision depends on the immigration category under which the application was made. The Immigration Appeal Division hears appeals on immigration-related matters, including sponsorships, removal orders and residency obligations.

For some applications, if the process is felt to be unfair, a judicial review can be applied for through the Federal Court of Canada. However, it is often faster and more cost effective simply to apply again and address the concerns raised in the refusal.

Recent case law

Has there been any notable recent case law regarding immigration?

The recent case of Jeyakannan Kanthasamy v Canada (Minister of Citizenship and Immigration) (2015 SCC 61), broadened the scope and definition of humanitarian and compassionate grounds under the Immigration and Refugee Protection Act.

 

Business visitors

Visa requirements

In what circumstances is a visa required for business visitors?

Business visitors do not require a work permit. A work permit is required only if:

  • the visitor will be in Canada for more than six months;
  • the visitor’s main place of business, source of income and profit is in Canada; or
  • the visitor intends to complete an activity – including volunteering – that is in direct competition with the activities of Canadian citizens or permanent residents.

There are some exemptions where work activities are allowed without a work permit.

Restrictions

What restrictions are imposed on business visitors in terms of the work that they may undertake and their period of stay in your jurisdiction?

Many tasks can be completed in Canada without a work permit if certain conditions are met, including business meetings, installation work or after-sales services. Business visitors cannot participate in any hands-on activity unless an exemption applies. Every business visitor must receive payment from outside Canada and the principal place of business and profit of their employer must remain predominantly outside Canada.

Application and entry

How are business visitor visas obtained and what is the typical turnaround time?

Entry requirements vary by country. The processing time for visas for business visitors varies depending on the jurisdiction and ranges from around two weeks to six months.

Are any visa waiver or fast-track entry programmes available?

Business visitors from visa-exempt countries (such as most European countries, Australia and South Korea) do not require a visitor visa to enter Canada. Some may require an Electronic Travel Authorisation (eTA) before boarding a commercial flight.

Short-term training

What rules and procedures apply for visitors seeking to undertake short-term training in your jurisdiction?

Internal company training falls under the business visitor category. Training that is provided outside the company may require a work permit. Evaluations are made on a case-by-case basis as there may be exemptions, such as an after-sales service contract.

Transit

In what circumstances is a transit visa required to pass through your jurisdiction? How is it obtained?

Most people who travel through Canada need a visitor visa, a transit visa, or an eTA.

The documents required depends on:

  • the type of travel document with which the visitor is travelling;
  • the country that issued the travel document;
  • the visitor’s nationality; and
  • how the visitor will travel to Canada.

 

Sponsored immigration

New hires

What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Most employers seeking to hire a foreign national may need to obtain a positive Labour Market Impact Assessment (LMIA) for the position. The success of the LMIA will depend on the duties that the employee will undertake in Canada and the specific position. The employer must advertise for the position for a minimum of four weeks and conduct similar recruitment activities consistent with the practice within the occupation. The main goal of the process is to demonstrate that the presence of the foreign worker will not have a negative impact on the Canadian labour market.

There are some situations where an LMIA is not required, such as where one of the following applies:

  • a free trade agreement;
  • an intra-company transfer;
  • a significant benefit work permit;
  • a significant investment work permit;
  • a mobilité francophone permit;
  • a reciprocal employment work permit;
  • an International Experience Canada Young Professionals Programme work permit;
  • a religious or charitable nature work permit; and
  • certain postdoctoral research and other education-based work permits.

There are also other situations where an LMIA may not be required.

Intra-company transfers

What sponsored visas or work permits are available to multinational employers seeking to transfer foreign employees to your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

An intra-company transfer work permit is available to those who have been employed by a company outside Canada for at least one year out of the three previous years, including immediately before the transfer. The applicant must hold a senior managerial or executive position or a specialised knowledge position. The transfer to Canada must be to a similar position. The corporate relationship between the company in Canada and the company abroad must be parent, subsidiary, affiliate or branch.

The maximum period of stay is five years for specialised knowledge positions and seven years for managerial or executive positions is seven years.

Do any special rules govern secondments?

N/A.

Sponsor requirements and considerations

What are the eligibility and procedural requirements for employers to sponsor foreign employees?

The eligibility and procedural requirements vary by application. For an LMIA, employers are generally required to:

  • demonstrate that they have a legitimate business;
  • advertise for the position for a minimum of 30 days;
  • be up to date with the Canada Revenue Agency, as several documents are required;
  • have been open for at least one year; and
  • offer the prevailing wage for the position.

 

What ongoing reporting and record-keeping requirements apply to sponsors?

Employers are required to advise of any changes to the employment, such as a wage increase or change in location. Further, employers must keep all documents and records associated with any work permit application and any documents that demonstrate their compliance with the programme conditions, must be kept for a period of six years.

In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?

See above.

Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?

International youth exchange programmes as part of International Experience Canada have quota limits which vary between jurisdictions.

Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?

There are schemes that occur provincially and change according to need. It is best to check regularly to see what is current.

How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?

It depends if a visa is required or a port of entry application may occur. Processing times for visas are nationality dependent and range from two weeks to six months. Expedited processing is available at the discretion of immigration officers at consulates and is applied on a case-by-case basis.

What rules govern the hiring of foreign third-party contractors?

Rules for the hiring of foreign third-party contractors vary according to the individual context.

What are the penalties for sponsor non-compliance with the relevant immigration laws and regulations?

The consequences for non-compliance vary according to the severity of the offence and can range from a warning to a fine ranging from C$500 to C$100,000 per violation, up to a maximum of C$1 million over one year, per employer.

Are there any other special considerations for sponsors in your jurisdiction?

N/A.

General employee requirements

Must sponsored employees meet any language requirements?

N/A.

Are sponsored employees subject to any medical checks?

Employees from certain countries who intend to stay for more than six months may be required to undergo medical and biometric checks.

Must sponsored employees meet any medical or other insurance requirements?

Employees must be medically admissible to Canada.

Are sponsored employees subject to any security or background checks?

When processing work permit applications, an immigration officer will consider whether the applicant is inadmissible based on any criminal or medical factors.

Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?

Sponsored employees must have their employer’s name on the work permit and are allowed to work only for this specific employer.

Volunteering is possible, but there are restrictions depending on the type of volunteer position.

If a course or programme in Canada lasts six months or less, a study permit is required.

Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?

Qualification requirements vary depending on the classification.

What are the penalties for employee non-compliance with the relevant immigration laws and regulations?

Penalties can be issued with an exclusion order and subjects can subsequently be deported from Canada.

Unsponsored immigration

Highly skilled individuals

What unsponsored immigration routes are available for highly skilled foreign nationals to seek employment in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

There are a number of unsponsored immigration routes and their applicability would need to be assessed on a case-by-case basis. The Global Skills Strategy is one example, as mentioned above.

Entrepreneurs

What unsponsored immigration routes are available for entrepreneurs seeking to establish a business in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

The Start-up Visa Programme offers permanent residency to foreign entrepreneurs who agree to bring their companies to Canada. Successful applicants are linked with private sector organisations in Canada, where they can receive funding, guidance and expertise in opening and operating their enterprise in Canada.

In order to be eligible the applicant must:

  • meet minimum language requirements in English or French (ie, Canadian Language Benchmark Level 5 in all abilities);
  • have sufficient funds to settle in Canada;
  • plan to settle in a province other than Quebec;
  • pass Canadian security and medical clearances;
  • prove that their business is supported through a designated organisation; and
  • show that their business meets ownership requirements.

Investors

What unsponsored immigration routes are available for foreign investors seeking to invest in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Many participating provinces and territories have an investment or entrepreneur stream for business applicants who wish to own or invest in a business. Eligibility criteria includes:

  • having demonstrated business or management experience; and
  • having the intention to reside in that particular province or territory.

Depending on the province, applicants need to have a net worth of between C$300,000 to C$1,500,000 and make a personal investment of a minimum of C$75,000 to C$1,000,000. The requirements vary by province.

Individuals who have US or Mexican citizenship and are setting up or buying a business in Canada may qualify for a North American Free Trade Agreement investor work permit. To be eligible, the following requirements apply:

  • the investor must have either US or Mexican citizenship;
  • a majority of the company must be owned by persons of US or Mexican citizenship;
  • substantial investment in the company must have already been made or be actively being made;
  • the investor must be seeking entry into Canada for the sole reason of developing and directing the business; and
  • if the investor is also an employee of the company, his or her role must be executive or supervisory in nature or involve essential skills.

Ancestry

Are any immigration routes open to foreign nationals based on ancestry or descent?

Canada offers citizenship by descent for individuals who have a parent that was a Canadian citizen at the time of their birth, limited to the first generation. Every situation is different and there have been many changes to the Citizenship Act, resulting in multiple scenarios leading to citizenship.

Other routes

Are there any other unsponsored immigration routes?

There are immigration categories for investors as mentioned above.

Some foreign nationals may be eligible for open work permits. The holder of an open work permit can work for any Canadian employer, without having a confirmed offer of employment. An open work permit is not job specific.

The following persons can apply for open work permits:

  • permanent residence applicants who have applied to an office in Canada;
  • dependent family members of some permanent residence applicants;
  • spouses and common law partners of some workers and international students;
  • refugees, refugee claimants, protected persons and their family members;
  • some temporary resident permit holders; and
  • some young workers participating in special programmes.

Additional criteria apply in each of these situations.

Extensions, permanent residence and citizenship

Extensions and status changes

Can short-term visa or work permit holders switch to long-term visas? If so, what conditions and procedures apply?

Visa extensions are permitted in certain circumstances. Canada has several pathways to permanent residence by virtue of gaining work experience in Canada.

Under what conditions can long-term visas be extended?

A bona fide explanation is required for extensions.

Permanent residence

Can long-term visa holders apply for permanent residence? If so, what conditions and procedures apply?

There are many pathways to permanent residence. Individuals who are long-term visa holders may be suitable candidates for the Federal Express Entry Programme or one of the provincial skilled worker programmes.

Under the Federal Express Entry Programme, if a foreign national has the equivalent of at least 12 months’ full-time skilled work experience in Canada in the three years immediately preceding their application and meets certain language requirements, they may be eligible to apply for Canadian permanent residence under the Canadian Experience Class Programme.

Permanent residence applications through the Federal Express Entry Programme can be processed in less than six months.

Citizenship

Can long-term visa holders or permanent residents apply for citizenship? If so, what conditions and procedures apply?

Permanent residents may be eligible to apply for Canadian citizenship after being physically present in Canada for four out of six years if they also meet language and knowledge requirements. A bill to change the Citizenship Act was recently passed, reducing this requirement to three out of five years. The new changes will allow applicants who have spent time in Canada on temporary status – such as on a work or study permit – to count a portion of this time towards the three-year requirement. This change is expected to come into effect in Autumn 2017.

Dependants

Eligibility

Who qualifies as a dependant for immigration purposes?

On October 24 2017 Immigration, Refugees and Citizenship Canada (IRCC) will raise the maximum age of a dependent child who may be included on an application to immigrate to Canada from under 19 years of age to under 22 years of age. This means that principal applicants immigrating to Canada will be able to include their children aged 21 and under on their immigration application, if they are not married or in a common law relationship.

Conditions and restrictions

What conditions and restrictions apply to bringing dependants to your jurisdiction (including with respect to access to labour markets, education and public benefits)?

Dependants cannot be medically or criminally inadmissible to Canada. There are certain circumstances in which an individual’s immigration application may be refused if their dependants are inadmissible.