It is common for companies to fill executive positions in Canada and the United States with one executive. That person is based in the US and commutes to Canada on a regular basis to provide services to the Canadian affiliate. Since they are providing services to a Canadian company, these people cannot qualify as business visitors in Canada. Instead, they need a work permit. Although not difficult to obtain under the NAFTA exemption for intra-company transferees (citizens from other countries in the same situation can also obtain work permits under another non-NAFTA exemption), these work permits are time limited. But on September 19, 2011, Citizenship and Immigration Canada issued a new Operational Bulletin (OB 346) which allows employers to "recapture" the foreign workers' time not spent in Canada.
Maximum Length of Stay
The problem is the maximum length of stay. Those who are transferred to Canada as persons possessing specialized knowledge can only be issued work permits for a maximum of five years. Those who are transferred to Canada because they fill a senior managerial position cannot obtain an extension of their work permit after seven years. Once having reached the cap, an intra-company transferee can only obtain a new work permit after spending a full year abroad without working in Canada. And then the five or seven years start over again. The rationale for the limit? To encourage those who are settling permanently in Canada to apply for permanent residence status.
The Reverse Situation
For some time now, US Immigration has allowed, in the reverse situation, Canadians based in Canada and commuting frequently to the US, but not settling in the US, to recapture the time not spent in the US. Until last month, Immigration Canada did not apply the same principle, even when the rationale for the limit does not apply to long-term commuters - they do not have the intention to settle in Canada permanently but have the intention to continue coming sporadically to provide services to the Canadian affiliate. The practical consequence of the limits in Canada is that, after five or seven years of holding a temporary work permit in Canada under an intra-company transferee exemption, such persons (or their employers) have to embark on a long and tedious procedure to obtain a positive Labour Market Opinion from Service Canada confirming that they are not taking a job opportunity away from a Canadian.
Some Relief from Immigration Canada
Since September 19, 2011, Immigration Canada now says that the days not spent in Canada can be deducted. The result is that the work permits can be extended by an amount equal to the recaptured time.
In order to deduct or recapture time, employers should keep good records of the time not spent in Canada. We recommend presenting:
- a table of days of presence in Canada;
- an affidavit;
- corroborating proof such as plane tickets, stamps of entry into Canada and hotel bills; and
- proof that the person lives in the US such as a letter from the US employer, payslips and W4s proving that they receive their remuneration in the US, proof of US home ownership (or a lease), US utility bills, etc.
This policy direction means greater flexibility for Canadian employers and fewer hurdles for them when employing executives or others who work in Canada and elsewhere and make their home elsewhere.