Most foreign nationals wishing to work in Canada for a temporary period will require a work permit. Usually, such written authorization will be issued for periods ranging from a few months to three years. Renewals are available in appropriate circumstances.
Certain classes of persons (known as “business visitors”) carrying on certain types of limited business activities, do not require a work permit. Such persons include the following:
- • individuals coming into Canada to purchase goods for their country or corporation carrying on business outside of Canada, including individuals coming to Canada for the purpose of acquiring training or familiarization with the goods or services purchased;
- • representatives of a foreign business or government coming to Canada for the purpose of selling goods, but not directly to members of the public; and
- • individuals coming as trainees to a Canadian parent or subsidiary corporation, where the trainee will not be actively engaged in the production of goods and services.
In most other cases, where a work permit will be required, a visa officer located outside of Canada processing such an application must consider the opinion of a foreign worker officer at a Human Resources and Skills Development Canada (“HRSDC”) office in the province where the employment is to take place. Employers who wish to hire a foreign worker must apply for a job offer confirmation, which is also called a labour market opinion, by submitting a Labour Market Opinion application to HRSDC. In order to obtain the job offer confirmation, employers must demonstrate to an HRSDC officer: (i) the efforts made to recruit and/or train willing Canadians/permanent residents; (ii) that they are unable to find Canadians/permanent residents with the necessary training and experience available to fill the job; and (iii) that as a result of employing the foreign worker, some potential benefits to the labour market in Canada will occur. Once HRSDC confirms the job offer, a foreign worker must apply for a work permit at a Canadian High Commission, consulate or embassy, or at the port-of-entry. The initial work permit cannot be obtained from within Canada, though extensions to the work permit are available in Canada. Extensions to work permits that were issued pursuant to a positive labour market opinion, would require a new job offer confirmation by HRSDC.
There are exemptions, however, from the requirement for employment confirmation by the HRSDC. Employees of a related business outside Canada who are transferred on a temporary basis to a Canadian branch, parent or subsidiary, to work at a senior executive or managerial level, will be exempt from the requirement of obtaining HRSDC job confirmation, but will still require a work permit. If the documentation is in order, certain work permits may be issued by the Immigration Officer at the port of entry, upon payment of a regulated fee. For most other “foreign workers” of all categories, it is necessary to obtain the work permits in advance, before the employee leaves for Canada, by attending at the Canadian High Commission, embassy or consulate that serves the employee’s country of nationality, or the country in which the employee is present and has been lawfully admitted.
Visa Requirements, Medical & Security Checks
Depending on their citizenship, persons entering Canada for a temporary period for the purpose of engaging in employment or as a tourist or business visitor, are required to make an application for and obtain a visa, before appearing at a port of entry into Canada. There are, however, numerous exemptions from this entry visa requirement. The Immigration and Refugee Protection Act and its Regulations list some 50 countries, the nationals of which are not required to obtain a visa prior to entering Canada, including the U.S., the United Kingdom, Western European countries, Japan and Australia.
Foreign nationals may be refused entry into Canada if they are found inadmissible on criminal, security or medical grounds. Individuals coming to Canada to work in an occupation in which protection of public health is essential, and those individuals coming for more than 183 days who have previously resided in an area in which there is a high risk of communicable disease, must submit to an approved medical examination before entry into Canada. Individuals coming from the U.S., the United Kingdom and most countries in Western Europe, who are not about to work in any of the designated health-sensitive fields, are not currently required to undergo medical examinations.
Accompanying Family Members
An individual coming to Canada on a temporary work permit may be accompanied by his or her spouse, common-law partner and dependant children. The spouse or common-law partner of such an individual planning to attend school in Canada will need a study permit, but such permit may be obtained after entry into Canada. Although, generally, a spouse cannot work in Canada unless he or she obtains a work permit in the manner discussed above or below, legislation allows spouses to work in Canada if the other spouse has a work permit.
The North American Free Trade Agreement
The North American Free Trade Agreement (the “NAFTA”) between Canada, the U.S. and Mexico, contains reciprocal provisions intended to facilitate the temporary cross-border movement of business persons between the three countries. In order to gain entry to the other country as a business person pursuant to the NAFTA, business travellers must: meet normal public health, safety and national security requirements; be either a Canadian, U.S. or Mexican citizen; and qualify in one of the following four categories of business persons:
- • business visitors;
- • intra-company transferees;
- • entrepreneurs and investors; and
- • professionals.
All business persons covered by the NAFTA are exempt from employment confirmation so that a Canadian employer does not, for example, need to have a job offer confirmed by HRSDC for a NAFTA business person, in order to obtain a work permit for such an individual. Moreover, business persons who fall within the business visitor category can engage in business activities temporarily in Canada, without being issued a work permit, provided that they do not receive remuneration in Canada, although the remaining three categories must still obtain a work permit. Most NAFTA business persons who are citizens of the U.S. can apply to work in Canada at a port of entry. Mexican citizens must apply to work in Canada at a Canadian High Commission, embassy or consulate abroad, before departing for Canada. Those in the entrepreneur or investor category must apply at a Canadian High Commission, embassy or consulate abroad, before departing for Canada.
A business visitor must be entering Canada to engage in a prescribed occupation or business activity. The listed occupations involve some degree of skill and, in most cases, the type of activity carried out in Canada must be limited either in its nature or in that the principal beneficiary must be foreign-based.
The category of intra-company transferees includes managerial and executive personnel and personnel utilizing “specialized knowledge” (e.g. proprietary knowledge of a firm’s product, service, research, techniques, etc.), who are not managers of any kind. The total term of a work permit for intra-company transferees is seven years for senior manager/executives, and the total term of a work permit for intra-company transferees with specialized knowledge is five years.
The entrepreneur and investor classification under the NAFTA covers entrepreneurs carrying on a substantial trade in goods or services principally between Canada, the U.S. or Mexico, who are seeking temporary entry to Canada in a capacity that is supervisory or executive, or involves essential skills. The classification also covers a treaty citizen who would enter Canada on a temporary basis solely to develop and direct the operations of an enterprise in which the person, or his or her current employer, has invested or is in the process of investing, a substantial amount of capital. In both the entrepreneur and investor classifications, the enterprise or firm in Canada to which the individual is coming must have affiliations with the individual’s country of origin.
Pursuant to the fourth classification, citizens of a treaty country who are engaged in professions of a kind described in the NAFTA, and who possess the qualifications as enumerated therein, may enter the other country on a temporary basis for a term of three years. This does not mean, however, that they would then be entitled, as of right and without holding any relevant federal or provincial certification, to carry out professional activities of such a nature and duration as to constitute professional practice in a Canadian jurisdiction.
Additional posts from the blog
The Government of Canada has announced that the majority of Canada’s Anti-Spam Legislation (CASL) will enter into force on July 1, 2014
The CASL regime is aimed at unsolicited commercial electronic messages (CEMs).
Canada’s first set of harmonized derivatives rules (trade reporting) published by three provinces: Ontario, Quebec and Manitoba
As mandatory reporting of OTC derivative contracts to trade repositories (TRs) (one of the G20 commitments) takes effect globally, the Ontario Securities Commission (the “OSC”), the Quebec Autorité des marchés financiers (the “AMF”) and the Manitoba Securities Commission (the “MSC”) on November 14, 2013, simultaneously published the first province-specific set of harmonized derivatives rules (the “Rules”) in Canada.
In this presentation, Dentons' Jeff Bastien, Andrea Raso and Dana Hooker discuss the appropriate ways to deal with employee absence.