Doing Business in Canada: Business Immigration

by Bennett Jones LLP
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The Canadian immigration process has become increasingly complex and can be very time-consuming.  As such, it is prudent for an employer to start the process early to ensure that a worker is able to be in Canada in the time frame required. To receive the appropriate permit to work in Canada, a U.S. citizen or permanent resident must normally follow a two-step process, as outlined below. Non-U.S. citizens must also undergo a Consular application.

Labour Market Opinion

Should no exemptions apply, the first step in the process is to apply for a Labour Market Opinion (LMO) through the Service Canada office of the Canadian government. To qualify for an LMO, the employer must demonstrate that there are no qualified workers in Canada able to perform the services required. Normally this requires the employer to advertise in Canada for qualified individuals. When it can be demonstrated that no such Canadian individuals are able or willing to accept the job, the position will be opened for acceptance by a foreign worker. In some cases where the employee is currently employed by an affiliated company and possesses proprietary or specialized knowledge, the advertising requirement may be bypassed and the time necessary to process the confirmation shortened. Regardless, the standard processing time for such an application is approximately eight weeks. In urgent, exceptional circumstances, the office will occasionally expedite the application process. The following information is required to apply for an LMO:

(a) Foreign worker’s name, sex, residential address, date and place of birth.

(b) Name of the employer, including address, Revenue Canada taxation number, number of employees, date the corporation was organized, contact person and fax number.

(c) A detailed position description, including the education and experience requirements for the position.

(d) Recruitment efforts undertaken (such as advertising, industry contacts and letters of support from Union representatives).

Work Permit

Once the LMO has been issued, the individual is entitled to apply at Immigration Canada for a Work Permit when the foreign worker arrives at the Port of Entry seeking to enter Canada. He or she must demonstrate that he or she: meets the requirements for the job position that were previously described to Service Canada; is otherwise admissible to enter Canada; and has no criminal convictions that would bar his or her entrance into Canada. An Immigration processing fee of $150.00 must also be paid.

Exceptions

A number of exceptions may apply which will greatly shorten the application process.  The North American Free Trade Agreement (NAFTA) provides a number of categories that allow U.S. citizens to work in Canada without having to undergo the confirmation process; however, these workers are still generally required to pay the $150 fee and obtain a work permit. The most commonly used categories of exemption are as follows:

Professional Category

NAFTA allows people with designated educational degrees (i.e., engineers, geologists, scientific technicians, economists and accountants) to enter Canada to provide employment services in their field of expertise. They must present a corporate letter of support together with their degrees or certificates. This provision is frequently used and will likely be of considerable benefit. Normally, this category requires the foreign worker to possess a university degree. However, the scientific technician category allows entry to individuals who have a two-year scientific diploma or can otherwise indicate considerable expertise as a scientific technician.

Intra-company Transferees

Executives, senior managers and employees with specialized knowledge may be transferred to Canada. An executive or manager must exercise significant managerial authority and responsibility. Individuals will generally not qualify if they only manage front-line workers.

An employee who has expertise that is not available elsewhere (generally propriety or internal corporate information) may apply as a specialized knowledge worker and avoid the confirmation process. Note, however, that many immigration officers refuse to apply this provision. Instead, they require the company to undergo the LMO process. Also, to qualify, the worker must have worked abroad for an affiliated company for at least one year in the past three years. 

After-Sales Services/Installation

Workers who are coming to Canada to provide after-sales service or installation work on goods manufactured outside of Canada, but sold to a Canadian company, are entitled to provide these services in Canada. As long as the individual provides extensive supporting documentation, he or she is entitled to enter Canada without having to obtain a work permit or otherwise deal with lengthy immigration application processes. The most critical, mandatory piece of information required is a copy of the original sales invoice or contract that specifically states that after-sales services, installation or training services are included.

Business Visitor

The business visitor category permits an individual to enter Canada without formal immigration documentation where that person’s admission does not directly impact the Canadian labour market. The person must be receiving no pay or remuneration from a Canadian source. This means that the business visitor cannot be paid directly by a Canadian client; but, in some limited cases, the Canadian client may pay the U.S. corporation which, in turn, pays a salary to the employee. The employee may not do hands-on or productive work for a Canadian company.

Accordingly, general sales calls, pre-sale customer visits or marketing visits to clients in Canada as well as product training and paid customer training are permitted, provided the original sales agreement includes the necessary provision(s) as outlined above. Attendance at conferences sponsored by others is also permissible under the general business visitor category and no work permit is required. Actually producing goods or services for the client is not permissible.

Conclusion

This is a very brief summary of the business immigration process in Canada. There are numerous additional categories and exceptions that may apply. Individuals who do not qualify for any of the above provisions may qualify under a less frequently used provision. Immigration applications vary extensively depending on the particular qualifications of the individual seeking to come to Canada. A slight change in an individual’s qualifications may make a significant difference in whether the employee qualifies to enter Canada.

Bennett Jones LLP’s Business Immigration Group

Bennett Jones’ Business Immigration Group is highly experienced in all facets of immigration law and, in particular, business immigration. Led by Kevin Zemp, a former immigration officer, our Group provides extensive advice and expertise on the movement of company personnel and priority workers.  We are also licensed to provide U.S. immigration services and offer a wide range of U.S. work permit and residency assistance. With the ongoing integration of the North American economy, our clients rely on our ability to provide high-level advice on both sides of the border in efficiently transferring their personnel and retaining high-priority workers. 


 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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