Red flagging immigration issues for employers
Transferring key personnel to Canada is now more complex with the passing of the Immigration and Refugee Protection Act and Regulations (IRPA). This is mostly a result of the clarification of entry requirements, definition of the business visitor criteria, and of a wider scope of penalties for misrepresentations.
HR professionals are in the precarious position of making the right choice, amongst a wider list of possibilities, and facing possible long-term implications not contemplated at the time of the initial entry. Here’s what to look out for.
Business visitor or worker?
As a general rule, foreign nationals entering Canada for activities which do not involve typical employment activities are business visitors and do not need work permits. They can travel on a moment’s notice (subject to being a national of a country for which a Temporary Resident Visa is required). In most situations the business visitor need only present a letter of introduction from the foreign employer describing the business activities to be undertaken in Canada.
The challenge is differentiating between business and employment activities. A business visitor is a foreign worker who seeks to engage in international activities in Canada without directly entering the Canadian labour market. Regulations permit business visitors to come to Canada to:
•purchase Canadian goods or services, or receive training in respect of goods purchased;
•receive or give training within a Canadian parent or subsidiary, including incidental production of goods or services which results from the training; or
•sell goods provided they are not being sold to the general public in Canada.
For the business visitor’s activity to be of an international nature, the foreign worker cannot be paid by a Canadian business and the employer’s principal place of business and profits should be predominantly outside Canada.
There are situations where the judgment call is relatively simple, such as a visit of short duration to attend a meeting. Others call for greater scrutiny or care, particularly when the duration to attend a meeting in Canada is lengthy and the foreign worker will be undertaking a number of activities with the potential for some of these activities to be “hands on.”
Red flag: If a foreign worker enters Canada as a business visitor and undertakes employment duties in contravention of the visitor status, the individual:
•commits an offence under IRPA and is subject to arrest;
•loses status in Canada and is subject to removal;
•is barred from obtaining a work permit for a period of six months from the date of the contravention; and/or
•may be barred from entering Canada for two years if there is a determination of misrepresentation.
Business visitor status does not permit qualification for health insurance coverage or a spousal work permit. Accompanying children require study permits to attend primary or secondary school.
Selecting the appropriate category for a work permit application
One interesting dilemma facing HR decision-makers is the selection of the correct category of application for a work permit. The problem arises as a result of overlapping qualification criteria. It is possible for a foreign worker to qualify for a work permit based on different categories of processing such as:
•a labour market opinion;
•intra-company transfer rules, which exempt workers from obtaining a labour market opinion; and
•provisions of a treaty such as the North American Free Trade Agreement.
•Labour market opinion: The labour market opinion is the most onerous process, as it requires that the Human Resources and Skills Development department (HRSD) provide a neutral or positive labour market opinion. The factors considered include the potential for job creation arising from the employment of the foreign worker, the creation and transfer of skills and knowledge for the benefit of Canadians, fulfilling a labour market shortage, and whether the wages and working conditions are sufficient to attract Canadians.
It usually takes between two to four weeks to obtain an opinion letter. Until the HRSD opinion letter is issued, the application for a work permit cannot be processed at a Canadian visa office or presented at the port of entry.
Red flag: HRSD has not published formal guidelines to provide assistance in addressing the factors listed above. Accordingly, HR professionals have been providing substantially the same information used to address the “Canadians First Policy” which preceded IRPA.
Two important criteria will be the seniority of the position and the commencing wage. The general rule of thumb is that it is easier to find a positive economic labour impact the more senior the position and the higher the salary. Submissions should certainly address how the employment of the foreign worker will make the Canadian employer more competitive in Canada and globally, as well as how the Canadian workforce may be enriched through the transfer of knowledge or expertise.
•Intra-Company Transfer — C-12: The intra-company category permits a work permit to be issued to a foreign worker who can demonstrate employment with a parent, subsidiary or related company of the Canadian employer for at least one year and that she will be a senior manager or executive in Canada who will plan, organize or direct the business in Canada. The foreign worker cannot assume a position as a middle manager. If the application is based on the foreign worker’s specialized knowledge, it will be necessary to demonstrate that this relates to the Canadian employer’s products or services and is of an advanced level of knowledge or expertise.
There are considerable benefits to using this category. First, there is no need to seek a labour market opinion from HRSD. Second, the processing can be undertaken at the port of entry. Provided documentation is complete, and the foreign worker does not otherwise require a Temporary Resident Visa to travel to Canada, the work permit may be issued upon entry to Canada. This permits a transfer to Canada on short notice.
Red flag: One of the dangers in using this category for port of entry processing is the possibility that the foreign worker may not be able to satisfy the immigration office at the port of entry as to her specialized knowledge or senior manager duties. This may be particularly troublesome if the foreign worker is traveling from Europe or Asia and is subject to the uncertainty of processing after a lengthy flight. It is for this reason that due consideration should be given to processing the application at a visa office at a Canadian consulate or embassy prior to departing for Canada.
•Significant Benefit — C-10: This category is not well known or appreciated by HR professionals. It permits the issuance of a work permit for up to three years when there is an immediate need for a work authorization and an HRSD labour market opinion is not readily available. The Foreign Worker Manual indicates that this category is intended to address situations where the social, cultural or economic benefits to Canada of issuing a work permit are so clear and compelling that the importance of the HRSD confirmation can be overcome.
Red flag: This category should only be used in exceptional circumstances. The criteria for defining a significant benefit are quite vague.
Where to process a work permit application
One of the critical determinations to make in processing an application is where to file in situations where the foreign worker is visa exempt and the category of processing allows work permit issuance at a consulate/embassy or port of entry. For many years, the preferred choice was to process applications at consulates or embassies. The primary reasons were twofold:
•It was predictable because all issues could be addressed before the arrival of the foreign worker. Upon successful completion of the application process, an approval letter would be provided to the foreign worker to present to the immigration officer at the Canadian port of entry; and
•An application for temporary status involving employment could be processed at any visa office worldwide. Certain offices, such as the Canadian consulates in Buffalo, N.Y., and New York City, became known for their expertise and quick processing times.
Red flag: A change in local policies at Canadian consulates in the United States has resulted in confusion about the appropriate visa office for filing an application for a work permit. For example, the Canadian consulate in Buffalo will accept applications and require an interview for applicants who do not reside in Canada (foreign students) or the United States. Therefore, there may be issues as to whether the foreign worker has the requisite U.S. visa to obtain entry to attend the interview. However, the Canadian consulate in New York City has expressed a predisposition against accepting work permit applications from foreign workers who do not reside in Canada or the U.S. It is important to understand how the application will be processed in the particular office in which it will be filed. It is expected that new immigration guidelines will be announced shortly.
The dual intention rule
The dual intention rule addresses the situation where a foreign worker seeks a work permit with the intention of applying for permanent resident status at the first opportunity. This rule is now formally recognized in the IRPA.
The issue is not whether the foreign worker can maintain a temporary intention to reside in Canada with a work permit if an application for permanent residence is filed. The issue is whether the person will depart Canada when the temporary status expires. Visa officers will consider whether there is any prior misrepresentation, evidence of overstaying status or other factors that would support the view that the foreign worker would not leave Canada if required to do so. However, the mere fact that the foreign worker also wishes to become a permanent resident will not cause the temporary application to be refused.
Red flag: If the foreign worker has had any previous refusals for a visa or work permit, this should be comprehensively addressed in the current application in order for the visa officer to fully appreciate the circumstances of the refusal. The integrity of the foreign worker’s application has a direct impact on her credibility with respect to the prospect for leaving Canada if required to do so.
Compliance, work permits
The need to supervise foreign workers in Canada who hold work permits is an ongoing process. Typically, work permit holders are subject to three basic conditions: the specified occupation, the location of the employment and the duration the foreign worker can remain in Canada. A contravention of any of these conditions of entry results in an immediate loss of status. This may have far reaching implications, including maintaining eligibility for health coverage, spousal work status and the ability to remain in Canada. The particulars of a work permit must therefore be recorded and monitored by the Canadian employer.
Red flag: A promotion will, in most instances, result in the need to obtain a new work permit reflecting the new position before the change in job duties. Similarly, a change in location of employment will require a new work permit prior to assuming the job duties in the new location.
A contravention of any of the three conditions of the work permit will require an application for restoration of status. The Case Processing Centre in Vagerville, Alta., is authorized to consider this application within 90 days of the contravention. If the application is made after the 90-day limit, the application cannot be considered in Canada. The applicant must be processed for a new work permit outside Canada to re-acquire status.
For HR professionals, the new IRPA has made bringing workers into Canada more complex. In addition to the need to develop a sound understanding of the law, there are various policies that result in additional categories of processing and rules of entry.
There is an ongoing need to monitor changes to the employees’ circumstances to ensure their status in Canada is not lost.
Howard Greenberg is a partner with Greenberg Turner, a human resources law firm, specializing in immigration issues, based in Toronto. Yusra Siddiquee is an associate at Greenberg Turner. For more information contact (416) 943-0288.
HR professionals are in the precarious position of making the right choice, amongst a wider list of possibilities, and facing possible long-term implications not contemplated at the time of the initial entry. Here’s what to look out for.
Business visitor or worker?
As a general rule, foreign nationals entering Canada for activities which do not involve typical employment activities are business visitors and do not need work permits. They can travel on a moment’s notice (subject to being a national of a country for which a Temporary Resident Visa is required). In most situations the business visitor need only present a letter of introduction from the foreign employer describing the business activities to be undertaken in Canada.
The challenge is differentiating between business and employment activities. A business visitor is a foreign worker who seeks to engage in international activities in Canada without directly entering the Canadian labour market. Regulations permit business visitors to come to Canada to:
•purchase Canadian goods or services, or receive training in respect of goods purchased;
•receive or give training within a Canadian parent or subsidiary, including incidental production of goods or services which results from the training; or
•sell goods provided they are not being sold to the general public in Canada.
For the business visitor’s activity to be of an international nature, the foreign worker cannot be paid by a Canadian business and the employer’s principal place of business and profits should be predominantly outside Canada.
There are situations where the judgment call is relatively simple, such as a visit of short duration to attend a meeting. Others call for greater scrutiny or care, particularly when the duration to attend a meeting in Canada is lengthy and the foreign worker will be undertaking a number of activities with the potential for some of these activities to be “hands on.”
Red flag: If a foreign worker enters Canada as a business visitor and undertakes employment duties in contravention of the visitor status, the individual:
•commits an offence under IRPA and is subject to arrest;
•loses status in Canada and is subject to removal;
•is barred from obtaining a work permit for a period of six months from the date of the contravention; and/or
•may be barred from entering Canada for two years if there is a determination of misrepresentation.
Business visitor status does not permit qualification for health insurance coverage or a spousal work permit. Accompanying children require study permits to attend primary or secondary school.
Selecting the appropriate category for a work permit application
One interesting dilemma facing HR decision-makers is the selection of the correct category of application for a work permit. The problem arises as a result of overlapping qualification criteria. It is possible for a foreign worker to qualify for a work permit based on different categories of processing such as:
•a labour market opinion;
•intra-company transfer rules, which exempt workers from obtaining a labour market opinion; and
•provisions of a treaty such as the North American Free Trade Agreement.
•Labour market opinion: The labour market opinion is the most onerous process, as it requires that the Human Resources and Skills Development department (HRSD) provide a neutral or positive labour market opinion. The factors considered include the potential for job creation arising from the employment of the foreign worker, the creation and transfer of skills and knowledge for the benefit of Canadians, fulfilling a labour market shortage, and whether the wages and working conditions are sufficient to attract Canadians.
It usually takes between two to four weeks to obtain an opinion letter. Until the HRSD opinion letter is issued, the application for a work permit cannot be processed at a Canadian visa office or presented at the port of entry.
Red flag: HRSD has not published formal guidelines to provide assistance in addressing the factors listed above. Accordingly, HR professionals have been providing substantially the same information used to address the “Canadians First Policy” which preceded IRPA.
Two important criteria will be the seniority of the position and the commencing wage. The general rule of thumb is that it is easier to find a positive economic labour impact the more senior the position and the higher the salary. Submissions should certainly address how the employment of the foreign worker will make the Canadian employer more competitive in Canada and globally, as well as how the Canadian workforce may be enriched through the transfer of knowledge or expertise.
•Intra-Company Transfer — C-12: The intra-company category permits a work permit to be issued to a foreign worker who can demonstrate employment with a parent, subsidiary or related company of the Canadian employer for at least one year and that she will be a senior manager or executive in Canada who will plan, organize or direct the business in Canada. The foreign worker cannot assume a position as a middle manager. If the application is based on the foreign worker’s specialized knowledge, it will be necessary to demonstrate that this relates to the Canadian employer’s products or services and is of an advanced level of knowledge or expertise.
There are considerable benefits to using this category. First, there is no need to seek a labour market opinion from HRSD. Second, the processing can be undertaken at the port of entry. Provided documentation is complete, and the foreign worker does not otherwise require a Temporary Resident Visa to travel to Canada, the work permit may be issued upon entry to Canada. This permits a transfer to Canada on short notice.
Red flag: One of the dangers in using this category for port of entry processing is the possibility that the foreign worker may not be able to satisfy the immigration office at the port of entry as to her specialized knowledge or senior manager duties. This may be particularly troublesome if the foreign worker is traveling from Europe or Asia and is subject to the uncertainty of processing after a lengthy flight. It is for this reason that due consideration should be given to processing the application at a visa office at a Canadian consulate or embassy prior to departing for Canada.
•Significant Benefit — C-10: This category is not well known or appreciated by HR professionals. It permits the issuance of a work permit for up to three years when there is an immediate need for a work authorization and an HRSD labour market opinion is not readily available. The Foreign Worker Manual indicates that this category is intended to address situations where the social, cultural or economic benefits to Canada of issuing a work permit are so clear and compelling that the importance of the HRSD confirmation can be overcome.
Red flag: This category should only be used in exceptional circumstances. The criteria for defining a significant benefit are quite vague.
Where to process a work permit application
One of the critical determinations to make in processing an application is where to file in situations where the foreign worker is visa exempt and the category of processing allows work permit issuance at a consulate/embassy or port of entry. For many years, the preferred choice was to process applications at consulates or embassies. The primary reasons were twofold:
•It was predictable because all issues could be addressed before the arrival of the foreign worker. Upon successful completion of the application process, an approval letter would be provided to the foreign worker to present to the immigration officer at the Canadian port of entry; and
•An application for temporary status involving employment could be processed at any visa office worldwide. Certain offices, such as the Canadian consulates in Buffalo, N.Y., and New York City, became known for their expertise and quick processing times.
Red flag: A change in local policies at Canadian consulates in the United States has resulted in confusion about the appropriate visa office for filing an application for a work permit. For example, the Canadian consulate in Buffalo will accept applications and require an interview for applicants who do not reside in Canada (foreign students) or the United States. Therefore, there may be issues as to whether the foreign worker has the requisite U.S. visa to obtain entry to attend the interview. However, the Canadian consulate in New York City has expressed a predisposition against accepting work permit applications from foreign workers who do not reside in Canada or the U.S. It is important to understand how the application will be processed in the particular office in which it will be filed. It is expected that new immigration guidelines will be announced shortly.
The dual intention rule
The dual intention rule addresses the situation where a foreign worker seeks a work permit with the intention of applying for permanent resident status at the first opportunity. This rule is now formally recognized in the IRPA.
The issue is not whether the foreign worker can maintain a temporary intention to reside in Canada with a work permit if an application for permanent residence is filed. The issue is whether the person will depart Canada when the temporary status expires. Visa officers will consider whether there is any prior misrepresentation, evidence of overstaying status or other factors that would support the view that the foreign worker would not leave Canada if required to do so. However, the mere fact that the foreign worker also wishes to become a permanent resident will not cause the temporary application to be refused.
Red flag: If the foreign worker has had any previous refusals for a visa or work permit, this should be comprehensively addressed in the current application in order for the visa officer to fully appreciate the circumstances of the refusal. The integrity of the foreign worker’s application has a direct impact on her credibility with respect to the prospect for leaving Canada if required to do so.
Compliance, work permits
The need to supervise foreign workers in Canada who hold work permits is an ongoing process. Typically, work permit holders are subject to three basic conditions: the specified occupation, the location of the employment and the duration the foreign worker can remain in Canada. A contravention of any of these conditions of entry results in an immediate loss of status. This may have far reaching implications, including maintaining eligibility for health coverage, spousal work status and the ability to remain in Canada. The particulars of a work permit must therefore be recorded and monitored by the Canadian employer.
Red flag: A promotion will, in most instances, result in the need to obtain a new work permit reflecting the new position before the change in job duties. Similarly, a change in location of employment will require a new work permit prior to assuming the job duties in the new location.
A contravention of any of the three conditions of the work permit will require an application for restoration of status. The Case Processing Centre in Vagerville, Alta., is authorized to consider this application within 90 days of the contravention. If the application is made after the 90-day limit, the application cannot be considered in Canada. The applicant must be processed for a new work permit outside Canada to re-acquire status.
For HR professionals, the new IRPA has made bringing workers into Canada more complex. In addition to the need to develop a sound understanding of the law, there are various policies that result in additional categories of processing and rules of entry.
There is an ongoing need to monitor changes to the employees’ circumstances to ensure their status in Canada is not lost.
Howard Greenberg is a partner with Greenberg Turner, a human resources law firm, specializing in immigration issues, based in Toronto. Yusra Siddiquee is an associate at Greenberg Turner. For more information contact (416) 943-0288.
