THE COMMON MISCONCEPTION HELD BY CANADIAN COMPANIES
IS THAT IF THE FOREIGN NATIONAL IS NOT BEING PAID IN CANADA,
THEN THEY ARE AUTOMATICALLY A BUSINESS VISITOR.
by the employer or legal counsel, Immigration officials may select
the most difficult category under which to adjudicate the applica-tion.
This can result in the refusal of a work permit application.
There are several expedient work permit categories. Canada is
facilitative in permitting the entry of key employees to assist with
the operations of an affiliate, subsidiary, branch or head office in
Canada, pursuant to the intra-company transfer provisions. The
Intra-company Transfer category is not tied to an applicant’s
nationality, but rather requires that the applicant be employed
with the related company abroad for at least one year prior to
applying for a work permit. The simplified entry of business peo-ple
is also addressed in several free trade agreements to which
Canada is signatory.
Pursuant to NAFTA and the parallel free trade agreements
with Chile, Colombia and Peru, Canada offers facilitative work
permit options to American, Mexican, Chilean, Colombian and
Peruvian citizens in strategic professions. The recent Canada-
European Union Free Trade Agreement (CETA) has also created
new categories for accelerated work permit issuance to EU nation-als
in limited scenarios. CETA, while certainly useful, is not as
facilitative or comprehensive as NAFTA and the parallel South
American agreements. Canada has also created a special category
for the spouses of skilled workers and foreign students.
Depending on the permit category, and the nationality of
the applicant, an application for a work permit can be pro-cessed
in as quickly as one day, at the port of entry on arrival in
Canada. However, if a foreign national does not qualify under
one of the many “fast-track” work permit categories, then the
Canadian employer is required to obtain a Labour Market Impact
Assessment (LMIA) positive decision from Service Canada, our
domestic labour authority. The Canadian company is required
to provide comprehensive submissions to the authorities distin-guishing
the skill set of the foreign national from candidates in the
Canadian labour market; evidencing through extensive recruit-ment
efforts why a Canadian could not be hired or trained for the
position. The total processing time to obtain a positive decision
including the recruitment stage can take several months.
Alternatively, for certain technical occupations that comprise
the Global Talent Stream of the LMIA, the Canadian company
can complete a Labour Market Benefits Plan in which the com-pany
outlines specific activities it will undertake and targets it will
achieve to invest in the skills and training of its Canadian employ-ees,
transfer the specialized knowledge of the foreign worker to
Canadians and/or improve the company performance as a result
of employing the foreign worker. The company commits to audits
and evidencing its efforts several times per year. Although the
processing time to achieve a positive decision is approximately two
weeks, the ongoing reporting requirements are onerous.
It is therefore essential that legal and human resources profes-sionals
not only evaluate whether a foreign national is a business
visitor or a worker, but also select the most expeditious and least
onerous application category when a work permit is required.
Depending on where the foreign national resides, they may also be
required to complete an exam as part of the work permit process.
Furthermore, if a foreign national has a serious medical condi-tion
or a criminal conviction, they can be refused entry to Canada.
Being aware of these factors will enable professionals to manage
human resource issues, as well as expectations.
It is important to be able to identify the duties that will trigger
the requirement for a work permit and ensure that frequent busi-ness
travellers are properly instructed on what to say and present
to Immigration officials. The penalties for non-compliance with
Immigration rules can result in fines to the company and exclusion
of the foreign national from Canada for up to two years. To limit
the risks associated with international travel, the development of
a comprehensive Immigration policy is highly recommended. n
Yusra Siddiquee is a partner at law firm Littler LLP.
alexskopje / 123RF Stock Photo
There are over 20 different work permit categories in Canada,
each with their own procedure and processing time
38 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL