Getting Your Global Workforce Across the Canadian Border. By R. Reis Pagtakhan Aikins Law p: (204) e:

Transcription

1 Getting Your Global Workforce Across the Canadian Border By R. Reis Pagtakhan Aikins Law p: (204) e:

2 Table of Contents I. Introduction Page 2 II. Citizens, Permanent Residents or Foreign Nationals: What is the difference? Page 2 III. What are the first questions to ask when a multinational company Page 2 wants a foreign national to enter Canada? A. What is the employee s country of citizenship? Page 3 B. What is the employee s country of permanent residency? Page 3 C. Will the employee be a business visitor? Page 3 D. If the employee will not be a business visitor, does the employee Page 7 qualify as an intra-company transferee or free trade professional? E. Where has the employee been living for the past 12 months? Page 16 F. Is the employee subject to the 4 year time limit regarding Page 17 work in Canada? IV. Inadmissibility Page 17 A. What is criminal inadmissibility? Page 18 B. Is the foreign crime is equivalent to a Canadian crime? Page 19 C. How many years have passed since the end of the sentence? Page 19 D. Is the foreign national eligible for immigration rehabilitation? Page 20 E. If the foreign national does not qualify for rehabilitation, Page 21 can the foreign national qualify for a temporary resident permit? V. Immigration Compliance Issues for Canadian Companies Page 21 A. The Genuineness Test Page 21 B. The Substantially the Same Test Page 22 C. What are the consequences of non-compliance? Page 23 D. Immigration Compliance and The Impact on Page 24 Mergers and Acquisitions 1

3 I. Introduction One of the advantages multinational companies have is the ability to deploy their human resources from one part of the globe to another. This paper will discuss how to move your employees across the Canadian border. II. Citizens, Permanent Residents or Foreign Nationals: What is the difference? In the Canadian context, there are three types of individuals who work in Canada. These are citizens, permanent residents, and foreign nationals. Canadian citizens are individuals born in Canada or naturalized by Canada. These individuals have the right and privilege to work in Canada without restriction. Canadian permanent residents are individuals who have immigrated to Canada but do not have citizenship. For the most part, permanent residents can also work in Canada without restriction. For multinational corporations, the main issue is whether employees who are foreign nationals - non-canadians/non-canadian permanent residents - can work in Canada. III. What are the first questions to ask when a multinational company wants a foreign national to enter Canada? When a multinational company looks to move of one of their employees to Canada, the first questions that should be asked are as follows: A. What is the employee s country of citizenship? B. What is the employee s country of permanent residency? C. Will the employee be a business visitor? D. If the employee will not be a business visitor, does the employee qualify as an intracompany transferee or free trade professional? E. Where has the employee been living for the past 12 months? F. Is the employee subject to the 4 year time limit regarding work in Canada? 2

4 A. What is the employee s country of citizenship? Because Canada has different entry rules for citizens of different nations, a person s citizenship will often dictate the immigration options that are available and the amount of time it will take a foreign national to obtain authorization to enter Canada. In order to enter Canada, a foreign national must be authorized to enter as a temporary resident (more commonly known as a visitor). For a variety of reasons, Canada imposes visa requirements on citizens of various countries. If a foreign national is a citizen of one of these countries, the foreign national must apply for and obtain a temporary resident visa before entering Canada 1. In some countries, this process takes hours or days. In other countries, the process can take weeks or months. If a foreign national is a citizen of a county whose citizens do not need visas to enter Canada 2, the process for entering Canada becomes much easier. Citizens of these countries can simply present themselves at a Canadian port of entry (i.e. an international airport, a land border crossing, a sea port) with a passport. The processing time for entry at a port of entry is typically minutes. A foreign national s citizenship is also important when determining what immigration options may be applicable. For instance, Canada has entered into free trade agreements with various countries that provide preferred entry options for select citizens of these countries. B. What is the employee s country of permanent residency? In addition to citizenship, a foreign national s country of permanent residency can also be important. In this connection, permanent residency is not viewed as the foreign national s domicile but the foreign national s immigrant status in another country they may be living in. For instance, a foreign national who is a U.S. permanent resident does not need a temporary resident visas to enter Canada 3. C. Will the employee be a business visitor? The next question is whether the activities the foreign national will carry out in Canada will qualify him/her as a business visitor. Business visitors do not need work permits to work in Canada 4 and, as a result, if a person qualifies a business visitor, this is preferred. This being said, 1 s.22 of the Immigration and Refugee Protection Act 2 s.190 of the Immigration and Refugee Protection Regulations. While this is not an exhaustive list, countries whose citizens do not normally need visas to enter Canada include citizens of most European Union countries and citizens of Japan, Australia, New Zealand, South Korea, the U.S.A. and some Caribbean countries. 3 s.190(1)(c) of the Immigration and Refugee Protection Regulations 4 s.186 of the Immigration and Refugee Protection Regulations 3

5 what a business visitor can do in Canada is greatly restricted and is not appropriate for most individuals who will be transferred to Canada for extended periods of employment. In order to determine if a foreign national is a business visitor, the first thing that must be determined is whether the foreign national will work in Canada. 1. What does immigration consider to be work? For immigration purposes, work is defined as: an activity for which wages are paid or commission is earned, or that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market 5 Clearly, whenever a person is paid for a task, that person will be working in Canada. However, this definition also allows for unpaid work to be considered work. Examples of unpaid work that meets the immigration definition of work include: A foreign technician coming to repair a machine even when that technician will not be paid directly by the Canadian company for whom they are doing the work; Self-employment such as operating a dry cleaning shop or fast-food franchise; and Unpaid employment undertaken for the purpose of obtaining work experience such as an internship or practicum 6 ; Unpaid work that is not work includes: Volunteer work for a board, charity or religious institution; Unremunerated help given to a friend or family member during a visit; and Long distance work done by telephone or internet by a foreign national whose employer is outside of Canada and who is remunerated from outside of Canada 7. This last example is designed to accommodate the business traveler or tourist who may be checking in with his or her home office while in Canada. As a result, care must be taken when trying to rely on this example. If the work is competitive in the Canadian marketplace, it still may be considered work even if it is for a short term. 2. Do all workers need a work permit? If a foreign national is found to be doing work, the next question is whether the foreign national is exempt from a work permit under immigration provisions for business visitors. In general, to qualify as a business visitor, the foreign national must: have no intent to enter the Canadian labour market, 5 s.2 of the Immigration and Refugee Protection Regulations, SOR/ Page 26 of Citizenship and Immigration Canada, FW1 Temporary Foreign Worker Guidelines, ed. (2011) (the Foreign Worker Manual ) 7 Page 26 of the Foreign Worker Manual 4

6 be carrying out an activity that is international in scope, have his or her primary source of remuneration come from an employer located outside Canada, show that the accrual profits of his or her employer is located outside of Canada 8. While this is the general criteria, there are situations of actual work that are expressly stated in legislation to be within the business visitor category. Examples include: Technicians providing certain after-sales service and warranty work 9 Trainers employed by multi-national companies seeking to train Canadian employees of a parent or subsidiary corporation 10 Corporate directors entering Canada for board meetings 11 and Employees of non-canadian companies overseeing the work being done by a company in Canada they have contracted with 12 These individuals do not need work permits to work in Canada. a. After Sales Service and Warranty Work One of the most common but confusing business visitor categories involves individuals entering Canada to perform after-sales service and/or warranty work. Under these rules, Canadian companies that buy or lease certain equipment, machinery or software from foreign companies and can take advantage of provisions that allow foreign nationals, on behalf of the vendor, to work in Canada to perform after-sales service without the need of a Work Permit. i. What products are covered? In order for Canadian purchasers to take advantage of the after-sales service provisions, the equipment, machinery or software must be commercial or industrial and cannot be for household or personal use 13. In addition, the equipment, machinery or software must have been manufactured and purchased or leased outside of Canada 14. For instance, if a Canadian manufactured product is sold in Canada by a U.S. business, U.S. personnel would not be able to enter Canada to perform aftersales service work. 8 s.187 of the Immigration and Refugee Protection Regulations 9 Pages 27 and 28 of the Foreign Worker Manual 10 s. 187(2)(b) of the Immigration and Refugee Protection Regulations 11 Page 29 of the Foreign Worker Manual 12 Pages 29 and 30 the Foreign Worker Manual 13 Page 27 of the Foreign Worker Manual 14 Page 27 of the Foreign Worker Manual 5

7 ii. When can after-sales service work be done? After-sales service work must be pursuant to the original sales contract or any warranty or service agreement incidental to the sale and must be carried out during the validity of these agreements 15. iii. What sort of work is allowed? Permitted after-sales service and warranty work includes: Installing, setting-up and testing the equipment, machinery or software; Training or supervising Canadian workers on the equipment, machinery and software; Repairing the equipment, machinery or software; and Software upgrades 16. iv. What sort of work is not allowed under the After Sales Service and warranty provisions? Under no circumstances can foreign personnel: Operate the equipment, machinery or software for production; or Perform hands-on building or construction work. As well, all work must require that the foreign national have specialized knowledge of the equipment, machinery or software 17. v. Does the warranty work have to be provided by the company selling the product? Third party service providers can carry out work as long as the sales agreement clearly indicates that a third party will perform the after-sales service work 18. vi. How do I word the contract or warranty? There is no set wording for these contractual provisions. As a result, when purchasing industrial or commercial products from a company outside of Canada, it is essential that the contract or purchase order be carefully reviewed to ensure that incorporates after-sales service work. 15 Page 28 of the Foreign Worker Manual 16 Page 27 and 28 of the Foreign Worker Manual 17 Page 28 of the Foreign Worker Manual 18 Page 28 of the Foreign Worker Manual 6

8 b. What is a meeting? A question many foreign nationals have when coming to Canada for meetings is whether the foreign national can enter Canada as a business visitor. Whether a meeting is work depends on the tasks being performed. While this is not the official definition for immigration purposes, the general rule of thumb is that a meeting is talking about work. When one starts to direct work at a meeting or conduct work at a meeting, it could cease to be a business visitor meeting. If a foreign national is coming to attend a meeting in Canada and immigration or border officers determine that he or she will be working, the individual may be refused entry to Canada. In extreme situations, the foreign national could be temporarily barred from re-entering Canada or convicted for misrepresenting the purpose of their visit to Canada. D. If the employee will not be a business visitor, does the employee qualify as an intracompany transferee or free trade professional? If a foreign national is coming to Canada for work purposes, the next question is what procedure needs to be followed to give that foreign national the appropriate status to work in Canada. Under immigration laws, all companies in Canada must carry out due diligence ensure that all of their employees are legally entitled to work for them in Canada 19. In order for a foreign national to work in this Canada, that individual must obtain authorization to do so prior to commencing work 20. Typically, the authorization comes in the form of a work permit. The reason that a company should look first to the intra-company transfer and free trade professional categories is because foreign nationals entering Canada in these categories can obtain work permits without the Canadian company having to go through a series of government approvals showing that they attempted to recruit Canadians and Canadian permanent residents. If a company must establish recruitment attempts, that company normally must apply for what is called a Labour Market Opinion. A Labour Market Opinion is an opinion issued by Canada s department of Human Resources and Skills Development in which this department opines on whether a company can hire a foreign national for a position. This process can be lengthy (currently 4 months or more in some Canadian jurisdictions) and requires an employer to go through a number of tests which I will set out later in this paper. In addition the Labour Market Opinion process in certain Canadian provinces (such as Quebec and Manitoba), is also complicated by the involvement of provincial authorities. 19 s. 124 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Immigration and Refugee Protection Act ) 20 s.183 of the Immigration and Refugee Protection Regulations 7

9 1. Who qualifies as an Intra-Company Transfers? The best immigration solution for multinational companies wanting to bring global employees to Canada is usually the intra-company transfer. An intra-company transferee is an individual who occupies an executive, managerial or specialized knowledge position outside of Canada and who is seeking to transfer to Canada to work in a similar position 21. a. How does a person qualify as an intra-company transferee? In order to qualify as an intra-company transferee, the following questions must be answered in the affirmative: i. Does an intra-company relationship exist between the Canadian and foreign company? ii. Is the Canadian company a legitimate and continuing establishment? iii. Will the employee be taking a position in the Canadian company? iv. Does the employee meet the definition of an executive, manager or specialized knowledge employee? v. Has the employee worked in a similar position abroad for at least one year in the last three years? vi. Is the employee coming for a temporary period only? vii. Is the employee admissible to Canada? i. Does an intra-company relationship exist between the Canadian and foreign company? In order to qualify as an intra-company transferee, a qualifying relationship must exist between the foreign and Canadian employers. In general, a parent-subsidiary, branch or affiliate relationship must exist between the Canadian company and the company abroad. In addition, properly structured joint ventures can also qualify 22. A careful analysis of the intra-company structure is required to determine whether a qualifying relationship exists. ii. Is the Canadian company a legitimate and continuing establishment? If the company has been in existence for at least 18 months, it is usually easy to establish that the company is legitimate and continuing 23. This being said, there are special provisions for companies that are just being established in Canada 24 as well as companies who have recently undergone a merger or acquisition Page 60 of the Foreign Worker Manual 22 Page 61 of the Foreign Worker Manual 23 Page 60 of the Foreign Worker Manual 24 Page 60 of the Foreign Worker Manual 25 Appendix I of the Foreign Worker Manual 8

10 In addition to a company s length of operations, it is also necessary to establish that the Canadian and the foreign companies will continue doing business in both countries for the duration of the employee s transfer 26. If either the Canadian or foreign company close their operations during the period of time the employee is in Canada, the intra-company relationship would cease to exist. iii. Will the employee be taking a position in the Canadian company? Transferring employees must take on a position within the Canadian company. The Canadian employer must have the right to order and control the work of the employee 27. This being said, there is no requirement that the employee work full-time in Canada. It is permissible for the employee to divide his or her time between Canada and another country. As well, there is no requirement that the source of the employee s remuneration be the Canadian company. The foreign company can continue to pay the salary or wage. iv. Does the employee meet the definition of an executive, manager or specialized knowledge employee? In order to qualify as an intra-company transferee, the employee must take on an executive, managerial, or specialized knowledge position in Canada. In assessing whether a person will be classified under one of these categories, the job duties of the foreign national are more important than the job title. In order to be considered an executive, the employee must: direct the management of the organization or a major component or function of the organization; establish the goals and policies of the organization, or a component, or function of the organization; exercise wide latitude in discretionary decision-making; and receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization 28. In order to be considered a manager, the employee must: manage the organization, a department, subdivision, function, or component of the organization; supervise and control the work of: other managers or supervisors; professional employees, or, 26 Page 61 of the Foreign Worker Manual 27 Page 62 of the Foreign Worker Manual 28 Page 62 of the Foreign Worker Manual 9

11 if the employee does not manage any personnel, manage an essential function within the organization, or a department or subdivision of the organization. have the authority to hire and fire, or recommend these and other personnel actions, such as promotion and leave authorization or if no other employee is directly supervised, function at a senior level within the organization hierarchy or with respect to the function managed; and, exercise discretion over the day-to-day operations of the activity or function for which the employee has the authority 29. It should be noted that first line supervisors are not considered to be managers unless the employees being supervised are professionals 30. In order to be considered a specialized knowledge worker, the employee must demonstrate: specialized knowledge of the company's product or service and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures (product, process and service can include research, equipment, techniques, management, or other interests) 31. In recent years, Citizenship and Immigration Canada has enacted new rules and procedures that now make the specialized knowledge category a bit more challenging. The following are some of the issues any company seeking to transfer employees to Canada as specialized knowledge workers should be on the lookout for. (1) Are trades people and labourers specialized knowledge workers? One challenging aspect of intra-company transfers are trades people and labourers performing hands-on construction or similar work. Generally, these types of workers are not viewed as specialized knowledge workers. While there are occasions where individuals holding these positions could be classified as specialized knowledge workers, these applications can be challenging. Amongst other things, immigration officials will look closely at the skill level needed for the position to determine whether they deem that the knowledge is sufficiently specialized 32. Even though an individual only needs to be working in the company for one year to qualify for intracompany transfer status (6 months for Columbia and Peru free trade individuals), officers are now instructed to look at the level of experience to determine the sufficiency of the knowledge. Even though an individual may have one year or even more of experience, the knowledge they may have accumulated may not considered specialized. 29 Page of the Foreign Worker Manual 30 Page 63 of the Foreign Worker Manual 31 Page 63 of the Foreign Worker Manual 32 Page 65 of the Foreign Worker Manual 10

12 As well, officers are specifically instructed that familiarity with tools designed specifically for use by an employer will not, in and of itself, result in a finding of specialized knowledge 33. (2) Does the salary or wage paid matter for a specialized knowledge worker? Officers are also to determine whether the wage of the specialized knowledge worker approximates the average wage for the same occupation in Canada in the specified geographical location where that individual will be working 34. This is a dramatic change in the law and overturns a federal court decision released earlier in 2011 that stated that the wages paid to certain intra-company transferees are not relevant 35. One of the major items that must be paid attention to is that non-cash per diems are not included in the wage calculation 36. (3) Does an employee s level of education matter for a specialized knowledge worker? Immigration officers are now instructed to look at the educational background of specialized knowledge workers. If the knowledge obtained for specialized knowledge workers can be obtained over a short period of time of in-house or on-the-job training, there is an increased likelihood that immigration officers will find the work not to be specialized 37. If, on the other hand, the employee s knowledge comes from a series of progressively more complex training that may be combined with hands-on experience, the chances of finding specialized knowledge increases 38. (4) Does the availability of Canadian workers matter for a specialized knowledge worker? While intra-company transferees are exempt from any labour market test, it is also useful for employers to show the need for them as specifically trained employees. If it can be shown that the employee will be bringing expertise to Canada that cannot be easily sourced within a reasonable period of time or at a reasonable cost from within Canada, the chances of success increase 33 Operational Bulletin 316 July 4, 2011: Assessing Intra-Company Transferees Under Specialized Knowledge 34 Operational Bulletin 316 July 4, 2011: Assessing Intra-Company Transferees Under Specialized Knowledge 35 Arora v. Canada ( Citizenship and Immigration), 2011 FC 241 (T.D.) 36 Operational Bulletin 316 July 4, 2011: Assessing Intra-Company Transferees Under Specialized Knowledge 37 Page 65 and 66 of the Foreign Worker Manual 38 Page 66 of the Foreign Worker Manual 11

13 (5) Can a manager enter Canada as a specialized knowledge worker? If a manager does not meet the intra-company manager definition but meets the specialized knowledge definition, the manager should be able to qualify as an intra-company transfer. However, if a manager meets the intra-company definition of manager but is taking on a role that involves lesser responsibilities in Canada, there may be challenges. Officers are instructed to compare an employee s job description with similar job descriptions in Canada s National Occupational Classification. The National Occupational Classification is a Government of Canada reference on occupations in Canada that consists of over 30,000 job titles. If a person s duties abroad are at a higher level than the duties the person will carry out in Canada, the case for an intra-company transfer will be harder to meet 39. v. Has the employee worked in a similar position abroad for at least one year in the last three years? Not all employees of multinational companies qualify as intra-company transferees. In order to qualify, an employee must have been employed by the foreign company in a similar position and on a full-time basis for at least 1 year in the 3 years immediately preceding the date of the application 40. The exception to this are individuals entering Canada under intra-company rules found in free trade agreements Canada has with Columbia and Peru. For individuals who qualify under these treaties, the minimum term of employment is 6 months 41. It is important to note that this requirement does not mean that the employee must be a current employee. Former employees, as long as they have been employed for the minimum amount of full-time work experience with the transferring company in the last 3 years, can qualify 42. vi. Is the employee coming for a temporary period only? In most cases, initial work permits can be granted for periods of 3 years. Executives and managers are eligible for two extensions of 2 years while specialized knowledge workers are only eligible for one 2 year extension 43. Once a person reaches their maximum work permit duration of 7 or 5 years, the individual must complete 1 year of full-time employment in the foreign company outside of Canada should they 39 Operational Bulletin 316 July 4, 2011: Assessing Intra-Company Transferees Under Specialized Knowledge 40 Page 60 of the Foreign Worker Manual 41 Page 69 of the Foreign Worker Manual and Operational Bulletin 342 August 12, 2011: Implementation of the Canada-Columbia Free Trade Agreement 42 Page 69 of the Foreign Worker Manual. 43 Page 70 of the Foreign Worker Manual 12

14 wish to reapply as an intra-company transferee. However, if the employee spent any time outside of Canada during their 7 or 5 year stay, that time can be recaptured 44. For example, if an intra-company transferee is in Canada for six months of the year but is back in his/her home office for the other six months of the year, those additional six months can be added to the total time limit. If the individual has a seven year time limit, this could effectively give the individual the ability to enter Canada on this status for seven more half years. vii. Is the employee admissible to Canada? In addition to the company and employee being eligible under the intra-company transfer category, it is essential that the employee not be inadmissible. The most common ground of inadmissibility includes having a criminal record that would prevent entry to Canada. More on this issue will be discussed later in this paper. 2. Who qualifies as a free trade professional? Another option to consider is whether the foreign national is eligible for entry under a free trade agreement. This is a useful entry option to Canada since it also does not require that the company establish that there are no Canadians or Canadian permanent residents available for the job. a. What are the basic requirements to qualify as a free trade Professional? In order to qualify to enter Canada as a free trade professional, the foreign national must: i. Be a citizen of a country with a free trade agreement with Canada, ii. Be qualified in a profession that is set out in the free trade agreement, iii. Have prearranged employment with a Canadian employer to work in the occupation, iv. Be providing a professional level of service in that professional field, and v. Comply with existing immigration requirements for temporary entry. i. Is the foreign national a citizen of a country with a free trade agreement? Canada has signed free trade agreements with the U.S., Mexico 45, and Chile 46 that give certain citizens of these countries certain preferential entry options as professionals. For Columbia 47 and Peru 48, permanent residents of these countries (in addition to citizens of these countries) can also avail themselves of entry under these free trade treaties. 44 Page 70 of the Foreign Worker Manual 45 The North American Free Trade Agreement Implementation Act, S.C. 1993, c The Canada-Chile Free Trade Agreement Implementation Act, S.C. 1997, c The Canada-Columbia Free Trade Agreement Implementation Act, S.C. 2010, c The Canada-Peru Free Trade Agreement Implementation Act, S.C. 2009, c

15 In addition, citizens and select permanent residents of countries within the General Agreement of Trade in Service can enter Canada as well 49. However, the provisions for professionals under this treaty are quite restrictive and are not often used. (For instance, professionals under this treaty are typically only allowed to work in Canada for 90 days in any 12 month period 50.) As a result, I will not discuss this treaty in this paper. ii. Is the foreign national qualified in a profession in a free trade agreement? Each of the free trade agreements listed above contains a list of occupations for which entry is allowed as a professional and/or a person in a technical occupation. In order to qualify as a professional/technician under a free trade agreement, a foreign national must meet the definition set out. In most cases, there are minimum educational and/or experience requirements a foreign national must meet. In many cases, these are set out as a specific type of degree, diploma or license. If the foreign national does not meet these requirements exactly, the foreign national will not qualify under this category. Where, a degree, diploma or other education credential is required, the educational credential must come from a related educational program 51. (The requirement for an educational credential in a related educational program only appears in Citizenship and Immigration Canada s manual reference for applicants under the North American Free Trade Agreement. For applicants under free trade agreements with Peru and Columbia, slightly different requirements are set out for educational credentials.) Where the relevant free trade agreement specifies that an individual must hold a specific degree and not merely a related degree, this must be shown. For example, lawyers, librarians, dentists, physicians and veterinarians under the North American Free Trade Agreement must have specific degrees or licences to be qualified as a professional in their fields. If these professionals do not have the specified degree or licence they will not qualify. iii. Does the foreign national have prearranged employment? Free trade professional entry requires that the foreign national have prearranged employment with a Canadian entity 52. Essentially, this prohibits a foreign national from simply entering Canada to set up their own practise unless a client, customer or employer has already arranged to employ the foreign national Appendix D of the Foreign Worker Manual 50 Page 142 of the Foreign Worker Manual 51 Page 167 of the Foreign Worker Manual 52 Page 168 of the Foreign Worker Manual 53 Page 168 of the Foreign Worker Manual 14

16 Employment, in this context, does not require an employer-employee relationship. Independent contractor relationships are acceptable as well as contractual relationships between two companies, one of which is the employer of the free trade professional 54. iv. Is the foreign national providing professional level of service in the field? Entry under a free trade agreement does not allow a professional to enter Canada to perform duties not consistent with that profession. For instance, an accountant must be entering Canada to perform activities as an accountant and not a bookkeeper 55. As well, an engineer can come to Canada as an executive as long as he/she is coming to do engineering work 56. v. Does the foreign national comply with requirements for temporary entry? As with all other categories, a foreign national entering Canada under a free trade agreement must meet all entry requirements to Canada including not being inadmissible. 3. Labour Market Opinions If the foreign national does not qualify as a business visitor, intra-company transfer, or free trade professional, the company hiring him/her will likely need to apply for what is called a Labour Market Opinion. Labour Market Opinion applications are applications that are filed with the government of Canada in which the Canadian employer must often establish that there are no Canadians or Canadian permanent residents willing or able to fill the job. In most cases, a prescribed method of advertisement and a prescribed time to run these advertisements are necessary to establish this 57. While there are other occupations that may be work permit or Labour Market Opinion exempt 58, for the most part, these exemptions would not apply to most multinational companies. This being said, a full canvass of this list of exemptions should be undertaken before applying for a Labour Market Opinion Page 168 of the Foreign Worker Manual 55 Page 169 of the Foreign Worker Manual 56 Page 169 of the Foreign Worker Manual 57 Human Resources and Skills Development Canada. Temporary Foreign Worker Program: Minimum Advertising Requirements, online: < 58 ss. 204 to 208 of the Immigration and Refugee Protection Act Regulations 59 Examples of other occupations that are work permit exempt include: diplomats, foreign government officers, certain military personnel, certain performing artists and athletes, reporters and media crews, public speakers, convention organizers, clergy, and emergency service providers. Examples of other occupations that are Labour Market Opinion exempt but require foreign nationals to obtain work permits include: emergency repair personnel, individuals coming under youth exchange programs, post-doctoral fellows, and certain foreign students. 15

17 The Labour Market Opinion process is quite arduous. It is detail oriented, and processing times can take upwards of four months. It is only after the Labour Market Opinion application is approved before a work permit application can be submitted 60. Under section 203(3) of the Immigration and Refugee Protection regulations, the following factors are considered when assessing Labour Market Opinion requests: a. whether the employment of the foreign national is likely to result in direct job creation or job retention for Canadian citizens or permanent residents; b. whether the employment of the foreign national is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents; c. whether the employment of the foreign national is likely to fill a labour shortage; d. whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards; e. whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and f. whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute. E. Where has the employee been living for the past 12 months? The actual country of residence a foreign national has been living in for the past 12 months is important in that Canada has indicated that certain nations are designated for the purposes of mandatory medical examinations 61. If a foreign national has lived in a designated country for 6 months in the one year preceding the date that he/she seeks entry to Canada, he/she must undergo an immigration medical before entering Canada if he/she intends to be in Canada for more than 6 months 62. In some instances, medical requirements add months to the work permit process. As a result, this should be built in to the timing of any work permit process. Please note that for agricultural workers and for people entering occupations that would bring the individual into close contact with people (i.e. health professionals, primary or secondary school teachers, child care workers, 60 S.198(2) of the Immigration and Refugee Protection Regulations 61 Citizenship and Immigration Canada. Designated country/territory list, online: < 62 Citizenship and Immigration Canada. Medical examination requirements for temporary residents (Visitors, students and temporary foreign workers), online: < 16

18 and domestics), mandatory medicals are needed regardless of where the individual may have previously lived 63. F. Is the employee subject to the 4 year time limit regarding work in Canada? As of April 1, 2011, a four year limit on the amount of time a foreign national can work in Canada has been imposed. In general, if a foreign worker works in Canada for four years, he/she will not be eligible to for another work permit for an additional four years 64. These regulations are not retroactive. As a result, the four year calculation period begins on April 1, 2011 which means that the earliest date a foreign worker can reach the limit is April 1, The four year limit does not apply to all foreign workers. Some of the exempt categories include executives, managers, professionals, and persons employed pursuant to free trade agreements 66. While the four year limit is calculated cumulatively, gaps in employment (such as periods of unemployment, extended unpaid leave, maternity/parental leave, and medical leave not covered by employment contracts or agreements) will not count toward the cumulative duration period 67. IV. Inadmissibility As indicated above, another important issue is whether a foreign national is inadmissible to Canada. Canada has a set of rules that makes people inadmissible to Canada for past criminal activity 68, medical reasons 69, and security reasons 70, amongst other things. There are numerous instances of people refused entry to Canada upon arrival at a Canadian airport or border crossing. As a result, before any foreign employee seeks entry to Canada, these issues should be canvassed to determine whether a problem could exist upon entry. The following is the list of questions that Citizenship and Immigration Canada typically asks on their work permit application forms to determine inadmissibility 71. While not all applicants to Canada must complete this form, these questions should be considered before entry to Canada. 63 Citizenship and Immigration Canada. Medical examination requirements for temporary residents (Visitors, students and temporary foreign workers), online: < 64 s.200(2)(g) of the Immigration and Refugee Protection Regulations 65 s.2.6 of Operational Bulletin 275-C April 1, 2011: Temporary Foreign Worker Operational Instructions for the Implementation of the Immigration and Refugee Protection Regulatory Amendments 66 Annex B of Operational Bulletin 275-C April 1, 2011: Temporary Foreign Worker Operational Instructions for the Implementation of the Immigration and Refugee Protection Regulatory Amendments 67 s.2.6 of Operational Bulletin 275-C April 1, 2011: Temporary Foreign Worker Operational Instructions for the Implementation of the Immigration and Refugee Protection Regulatory Amendments 68 s.36 of the Immigration and Refugee Protection Act. 69 s.38 of the Immigration and Refugee Protection Act. 70 s.34 of the Immigration and Refugee Protection Act. 17

19 a. Within the past two years, have you or a family member ever had tuberculosis of the lungs or been in close contact with a person with tuberculosis? b. Do you have any physical or mental disorder that would require social and/or health services, other than medication, during a stay in Canada? c. Have you every previously applied for any Canadian visas (For example: Permanent Resident, Temporary Resident (Visitor, Student, Worker), Temporary Resident Permit)? d. Have you ever been refused any kind of visa to travel to Canada? e. Have you ever been refused admission or been ordered to leave Canada or any other country? f. Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country? g. Have you ever been in a military, militia or civil defence unit or the police? h. Have you ever been employed by a government in a security-related capacity? i. Have you ever held a position of authority in any government, or judiciary or a political party? j. Have you ever in periods of either peace or war, been involved in the commission of a war crime or crime against humanity, such as: willful killing, torture, attacks upon, enslavement, starvation or other inhumane acts committed against civilians or prisoners of war, or deportation of civilians? Answering yes to some or all of the above questions will not necessarily result in a foreign national being inadmissible to Canada. However, answering yes should trigger further inquiries to determine if a problem exists. The most common issues companies face are with employees who may have issues relating to criminal inadmissibility. A. What is criminal inadmissibility? Under Canadian law, foreign nationals who have been convicted outside of Canada of certain crimes can be found to be inadmissible to Canada. If inadmissible, the foreign national cannot enter Canada even if he or she otherwise qualifies for entry unless special permission is obtained. If a foreign national has been convicted outside of Canada of any crime, it is important to analyze the impact of this conviction before attempting entry to Canada. It is important to note that even minor crimes that resulted in no jail sentence can result in a person being inadmissible. As well, crimes committed decades ago can also result in refusals of entry to Canada. Canada has a complicated process when assessing whether foreign convictions result in inadmissibility to Canada. The process involves: Determining if the foreign crime is equivalent to a Canadian crime; 71 Form IMM 1295 Application for Work Permit Made Outside Canada 18

20 Calculating the number of years from the end of the sentence; Determining whether the foreign national qualifies for immigration rehabilitation ; and If the foreign national does not qualify for rehabilitation, whether the foreign national can still be allowed into Canada under a temporary resident permit. While individuals can also be criminally inadmissible in the absence of a conviction 72, these situations are relatively rare in the context of foreign business persons and, as a result, will not be covered in this paper. B. Is the foreign crime is equivalent to a Canadian crime The first part in the analysis is to determine if the foreign crime is equivalent to a Canadian crime. This analysis is significant for the following reasons: Not all foreign crimes are equivalent to Canadian crimes. If the foreign crime is not equivalent, the foreign national will not be inadmissible If the foreign crime is equivalent to a Canadian crime, it must be determined if it is equivalent to criminality 73, serious criminality 74 or organized criminality 75. The more serious the crime, the more challenging it will be to enter Canada. For the purposes of this paper, we will discuss only criminality and serious criminality. Determining equivalency is a complicated process that involves comparing one or both of the following: the wording of the foreign statute and Canadian statutes, and the essential ingredients of the offence 76. C. How many years have passed since the end of the sentence Once it is determined that a foreign crime is equivalent to criminality or serious criminality, the next part of the analysis is to determine how many years have passed since the foreign national s sentence has ended. For immigration purposes, the end of a sentence is calculated from the later of the date: the foreign national was sentenced (in cases of suspended sentences) the foreign national s period of incarceration ended; the foreign national s period of parole ended; the foreign national s probation ended; the foreign national paid all fines and court ordered costs; 72 ss.36(1)(c) and 36(2)(c) of the Immigration and Refugee Protection Act 73 s. 36(2)(b) of the Immigration and Refugee Protection Act 74 s.36(1)(b) of the Immigration and Refugee Protection Act 75 s.37 of the Immigration and Refugee Protection Act. 76 Hill v Canada (MEI) (1987), 1 Imm LR (2d) 1, 73 NR 315 at para

21 the foreign national completed all other court ordered requirements of their sentence (such as attendance at court ordered programs, payment of restitution); and the driving prohibition ended (for driving offences) 77. The number of years since a sentence has ended is important as it will usually indicate when a foreign national is eligible to have their conviction erased for Canadian immigration purposes through a process known as rehabilitation. D. Is the foreign national eligible for immigration rehabilitation Rehabilitation is a process that Canada offers to foreign nationals convicted of crimes that can erase a criminal conviction for immigration purposes. There are two types of rehabilitation that are available: deemed rehabilitation and individual rehabilitation. Deemed rehabilitation is a process that erases a foreign national s criminal convictions as a result of the passage of time 78. For most crimes, 10 years have to pass since the end of the sentence to be eligible for deemed rehabilitation. Once a person is deemed rehabilitated, the criminal inadmissibility is erased. In order to prove deemed rehabilitation, a foreign national first has to prove the conviction. The foreign national then has to prove that the prescribed period of time has passed since the end of the sentence. Individual rehabilitation requires a foreign national to prove both that a prescribed period of time has passed (typically 5 years) and that he/she has been rehabilitated 79. When assessing individual rehabilitation, some of the factors taken into account are as follows: The stability of the individual s lifestyle (family life, employment, community establishment and involvement, involvement with faith communities); Whether the offence was an isolated event, temporary lapse, or one of many crimes; For each offence, the circumstances of the offence; The likelihood the individual will be involved in further criminal activity; Whether there are any issues of substance abuse; The presence or lack of social skills, vocational skills, and higher education; Whether the individual understood the offence and took responsibility for the offence; Evidence of any contrition or evidence of remorse; and The payment of restitution, where applicable, and the completion of any rehabilitation programs Citizenship and Immigration Canada. Rehabilitation for persons who are inadmissible to Canada because of past criminal activity (IMM 5312), online: < 78 Citizenship and Immigration Canada. Rehabilitation for persons who are inadmissible to Canada because of past criminal activity (IMM 5312), online: < 79 Citizenship and Immigration Canada. Rehabilitation for persons who are inadmissible to Canada because of past criminal activity (IMM 5312), online: < 20

22 E. If the foreign national does not qualify for rehabilitation, can the foreign national qualify for a temporary resident permit? Not all foreign nationals are eligible for rehabilitation. The most common situation is with foreign nationals who have not seen 5 years elapse since the end of their sentence. For these foreign nationals, entry to Canada is only available with the issuance of a temporary resident permit. For individuals entering Canada for business purposes, the following should be provided in addition to the evidence of individual rehabilitation when requesting a temporary resident permit: a letter from the employer showing: o an awareness of and support for the visits to Canada; o the importance of the particular individual to the company; o whether the foreign national has special skills, experience or knowledge; and if the applicant is visiting one business on behalf of another, letter from the other business outlining the above as well 81 V. Immigration Compliance Issues for Canadian Companies Last Fall, a Canadian company was fined $36,000 for employing foreign nationals not authorized to work in Canada 82. In a separate case, an individual was fined $8,000 for telling a group of foreign nationals to state they were coming to Canada to visit when they were coming for work 83. With over a dozen legislative, regulatory and operational changes affecting companies with foreign national employees, coming into effect since early 2011, immigration compliance is an increasingly important issue. The following are some of the major compliance issues. A. The Genuineness Test Before a foreign national will be offered a work permit, the employer must establish that the job offer is genuine. In assessing genuineness, the following will be considered: 80 Page of Citizenship and Immigration Canada, ENF 14/OP 19 Criminal Rehabilitation, ed. 81 Bailey, Catherine, Immigration Program Manager, Consulate General of Canada, Buffalo, NY. TRP, Rehabilitation and ARC submissions a visa officer wish list, Paper presented at the Ontario Bar Association s Citizenship and Immigration Law: When the past comes back to haunt your client Criminal Inadmissibility, Temporary Resident Permits and Rehabilitation 82 CBC, Edmonton company fined for foreign workers, online: < 83 Canada Border Services Agency, Prosecutions and Seizures, Pacific Region, News Release: Misrepresentation nets man $8,000 fine, online: < 21