Canada’s participation in several free trade agreements, coupled with its national Immigration and Refugee Protection Act, determine whether a foreign business person may live and work in Canada on either a temporary or indefinite basis. In response to abuses and cases of money-laundering, Citizenship and Immigration Canada’s has tightened its rules for “business class” permanent residents or landed immigrants.
The Government of Canada’s Immigration and Refugee Protection Act (IRPA) provides that only Canadian citizens or permanent residents of Canada may work in Canada without a valid work permit. As a general rule, a person who is neither a citizen nor a permanent resident (often referred to as a “landed immigrant”) may be employed in Canada only if no qualified Canadian is available to fill the position in question. Business people wishing to relocate temporarily or permanently to Canada, however, do have a number of other options open to them (as outlined below).
Temporary Business Visits
Canada maintains a list of countries whose nationals must obtain a visa prior to entering the country. Many foreign nationals may enter Canada without a work permit to work temporarily (generally for a period of 90 days or less) if they are permanent employees of corporations based outside Canada that carry on business in Canada, either directly or through a parent or subsidiary company.
Such employees may only be in Canada to meet and consult with other employees, sell goods to parties other than the general public, or purchase Canadian goods or services. They may not directly enter the Canadian labour market and their primary source of remuneration for the business activity must be outside Canada.
Business Visits Under Trade Agreements
The North American Free Trade Agreement (NAFTA) and the General Agreement on Trade in Services (GATS) set out additional categories of business visitors who may temporarily enter Canada for a period not exceeding six months to market their goods or services here or to take the steps necessary to establish a commercial presence in Canada to sell those goods or services here.
North American Free Trade Agreement (NAFTA)
Under NAFTA, business visitors from the U.S. and Mexico may enter Canada to sell goods or negotiate contracts for goods or services for a company of a signatory country provided they are not delivering goods or providing services. Direct sales to the general public are permissible provided the goods or services are not delivered or made available to the buyer at the time of the sale (i.e., on the same business trip).
A business visitor who practises a “Designated Professional Occupation” under NAFTA may participate in business meetings, negotiate the purchase or sale of goods or services, or market, distribute or provide after-sales services. Similar rules apply to Chilean business people coming to Canada under the Canada-Chile Free Trade Agreement (CCFTA).
General Agreement on Trade in Services (GATS)
To be eligible under GATS, a business visitor may not receive remuneration from within Canada and may not engage in making direct sales or supplying services to the general public. He or she may only participate in business meetings, including negotiations for the sale of services or other similar activities, including setting up a business in Canada.
Short-term business visitors should carry an employment letter confirming their continuing employment with the foreign company and indicating the duration, purpose and temporary nature of their visit to Canada. They may request a visitor record if they will be coming to Canada regularly over an extended period of time and the reason for the visit remains the same. A visitor record is issued by an immigration officer at his or her discretion and allows entry to Canada on subsequent visits.
Securing status as an “intra-company transferee” (which is the rough equivalent of an L-1 Visa in the United States) offers the quickest and most convenient method by which a foreign business visitor may temporarily relocate to Canada. To qualify, a proposed intra-company transferee must carry a letter from a company carrying on business in Canada which identifies the holder as an employee of a branch, subsidiary or parent of the company located outside of Canada. The individual also must seek entry to Canada to work in an executive or managerial position for a temporary period. A written job offer from a senior officer of the Canadian company, addressed to Citizenship and Immigration Canada, is required to satisfy this criterion. The offer must describe: the job in sufficient detail to demonstrate that it is at the senior executive or managerial level, the nature of the corporate affiliation between the offering company and the company from which the employee is being transferred, and the period of time for which the transfer is required.
Under NAFTA, CCFTA and GATS, companies within signatory countries may also arrange intra-company transfers for employees with specialized knowledge. The applicant must possess knowledge at an advanced level of expertise or have proprietary knowledge about the Canadian entity’s product, service, research, equipment, techniques, management or processes and procedures.
Under NAFTA, intra-company transferee and specialist employees must demonstrate continuous employment with the foreign company over a period of not less than one year within the three-year period immediately preceding the application. Under GATS, they must be employed by the foreign company for a period of not less than one year immediately prior to the application. Note that length of employment is one indicator of specialized knowledge. For American and Mexican citizens, NAFTA is generally a more advantageous route to obtain entry to Canada as an intra-company transferee than is GATS.
Spouses of Intra-company Transferees
Neither GATS nor NAFTA accommodates spouses of intra-company transferees who wish to work in Canada. However, Citizenship and Immigration Canada will grant work permits to eligible spouses of senior executives, managers and highly skilled individuals without the need of a specific Human Resources and Skills Development Canada (HRSDC) temporary foreign worker approval in the form of a labour market opinion. This policy applies to spouses of intra-company transferees whose occupation is eligible for the spousal work permit program under a list maintained by Immigration Canada.
Many classes of professionals may gain temporary admission to Canada under either GATS or NAFTA. GATS covers six occupations: engineers, agrologists, architects, forestry professionals, geometrics professionals and land surveyors. NAFTA covers more than 60 occupations, including accountants, computer systems analysts, economists, management consultants, lawyers as well as biochemists, biologists, chemists and other types of scientists.
Under GATS, a professional may be admitted for a maximum of three months. An extension maybe granted with an HRSDC labour market opinion. A professional admitted under NAFTA will be granted a work permit for one year, with one-year renewals possible thereafter, provided the individual continues to occupy a temporary professional position in Canada (usually less than 7 years).
Employment Categories Requiring HRSDC Approval
HRSDC must approve applications from those who do not come from a country that is a signatory to NAFTA, GATS or CCFTA or who do not qualify for temporary admission to Canada as a business visitor or intra-company transferee or as an applicant in another foreign worker approval-exempt category. This process is similar to obtaining an employment certification in the United States.
While HRSDC approval is challenging, may be expensive and usually takes 8 to 10 weeks, an application will be approved where there is proof that no qualified Canadians is available to assume the position, or where granting the approval will create or maintain significant employment benefits or opportunities for Canadian citizens or permanent residents of Canada (i.e., generally through training, the creation of new jobs, or the preservation of jobs that might otherwise disappear).
Permanent Resident Status
Those wishing to reside and work indefinitely in Canada must obtain permanent resident (or “landed immigrant”) status. Many business people qualify to apply for this status as a skilled foreign worker. A permanent resident may work for any employer in Canada and his or her spouse and dependent children may also accept employment or attend school in Canada without authorization. However, while a temporary work permit can be obtained in a matter of weeks, an application for permanent residence can take 18 to 24 months (or longer) to process and complete. New immigration targets and restrictions are set each year. Those applying for permanent residence in Canada are assessed on standard point-scoring selection criteria including education, experience, knowledge of English or French, ties to Canada and whether the applicant has “validated” employment in Canada. A score of 67 points out of 100 is currently required for a successful application. Note that independent immigrants (i.e., investors and entrepreneurs) are assessed on different points and criteria.
After abuses and cases of money-laundering were revealed in the late 1990s, Citizenship and Immigration Canada tightened its rules for “business class” permanent residents or landed immigrants. Today, there are business class programs for self-employed individuals, entrepreneur and investors.
A “self-employed person” is someone who has the relevant experience and ability in cultural, athletics or farm management to be self-employed in Canada (i.e., he or she will, at a minimum, establish a business that creates employment for at least his- or herself). The capital investment in the business of a self-employed applicant need not be as high as that required for entrepreneurs (see below), nor does the business proposal need to be as detailed.
An “entrepreneur” is someone who:
- has managed and controlled a percentage of equity of a qualifying business;
- has a certain required minimum amount to invest in that business;
- has the intention and ability to control a percentage of a qualifying business in Canada;
- will provide ongoing and active management of the business; and
- will create at least one full-time new job for a Canadian citizen or permanent resident.
The last three requirements must be fulfilled within three years of the entrepreneur’s acceptance as an immigrant under this program.
An “investor” is an immigrant who has adequate business experience; a legally obtained net worth of at least $800,000; and indicates in writing that he or she intends to make (or has made) an investment in Canada. The investor places a prescribed investment of $400,000 with the Receiver General of Canada. That investment, which is used by participating provinces to build their economies and create jobs, is returned, without interest, approximately five years after the applicant has obtained landed immigrant status.