canadian corporate immigration: who knew canada …€¦ · ircc: immigration, refugees and...

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Canadian Corporate Immigration: Who Knew Canada Could be so WARM?Benjamin A. KrancCanadian Corporate Immigration Counsel

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IRPA/R: Immigration and Refugee Protection Act/Regulations ESDC: Employment and Social Development Canada (previously HRSDC)Service Canada(SC): Administers ESDC ProgramsLMIA: Labour Market Impact Assessment (previously LMO)NOC: National Occupational Classification

CEC: Confirmation Exemption CodeIRCC: Immigration, Refugees and Citizenship Canada (formerly CIC)CBSA: Canada Border Services Agency

NAFTA: North American Free Trade AgreementGATS: General Agreement on Trade in ServicesCCFTA: Canada Chile Free Trade AgreementCPFTA: Canada Peru Free Trade AgreementCCoFTA: Canada Colombia Free Trade AgreementCSKFTA: Canada South Korea Free Trade AgreementCETA: Canada-European Union Comprehensive Economic and Trade Agreement[TPP: Trans-Pacific Partnership - Cancelled (for now)]

IMMIGRATION TERMINOLOGY

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• Require LMIA and Work Permit• Requirements Set Out in IRPR s. 203

• Require Work Permit; LMIA Exempt (International Mobility Program [IMP])• Intra-Company Transferees• NAFTA, GATS, CCFTA, CPFTA, CCoFTA, CSKFTA Professionals• Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other

• Work Permit Exempt• Business Visitors• Other Exemptions

• [Ongoing Employer Compliance]

TEMPORARY WORKER SCHEME

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Whether:

• A - *Work is likely to fill a labour shortage

• B - *Work offered at prevailing wages and appropriate work conditions

• C - Employer will make reasonable efforts to hire/train Canadians

• D - Work is likely to result in creation/transfer of skills and knowledge to Canadians

• E - Work is likely to result in job creation/retention

• F - Work is likely to affect any labour dispute

• [Reasonable efforts in past to fulfill previous commitments re C, D, E]

LMIA CONSIDERATIONS

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• Since 2011

• Substantially the same

• Genuineness

• [4 year limit – now removed]

• Recruitment requirements• 4 weeks from 2• 2 sources plus job bank• Ongoing

• Filing Fee $1000 per position

LMIA ISSUES

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• June 2014

• Now: Labour Market Immigration Assessment (Previously LMO)

• Test redefined from • NOC based ‘High Skill’ to • Wage based ‘High Wage’

• High Wage Transition Plan

• Low Wage Caps and Restrictions

• 10 Day Processing in Some Cases

LMIA ISSUES (CONT.)

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• Global Talent Stream• 2 Week Processing• No Recruitment

• Category A• Designated Employers• Certification Process

• Category B• Certain Occupations, for example:

• Computer Information Systems Managers• Computer Engineers (other than software engineers and designers)• Information System Analysists

• Other Initiatives• 15 day/6 month or 30 days/1 year - NOC 0, A

• No Work Permit Required

LMIA ISSUES – GLOBAL SKILLS STRATEGY

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• √ Require LMIA and Work Permit• Requirements Set Out in IRPR s. 203

• Require Work Permit; LMIA Exempt (IMP)• Intra-Company Transferees• NAFTA, GATS, CCFTA, CPFTA, CCoFTA, CETA Professionals• Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other



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• Intra-Company Transfer

• Canadian company affiliated with foreign company

• Employee works in foreign affiliate for 1 Year in Last 3(except 6 months for Peru)

• Capacity: Executive/Senior Manager/Specialized Knowledge

• Note: NAFTA/GATS/FTAs/IRPR “Convergence”

LMIA EXEMPTIONS

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• Coming from foreign company to ‘Affiliated’ Canadian company

• ‘Affiliated’ can be

• Parent/subsidiary

• Sister corporations

• Look at control (could be < 50%)

INTRA-COMPANY TRANSFERS

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• One in last three years with overseas company

• Must be presently working there

• ‘Employment’ – past and future • can be ‘contract’ but needs to be dedicated arrangement

INTRA-COMPANY TRANSFERS (CONT.)

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• Specialized Knowledge or Senior Managerial/Directorial Level

• Specialized Knowledge

• Advanced Experience / Proprietary Knowledge

• Managerial Experience

• Typically managing people, sometimes functional


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• Other considerations

• Caps• 5 years for specialized knowledge• 7 years for managerial positions

• Renewable in 2 year increments

• Startup considerations• 1 year • Substantiation of doing business in Canada


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• Effective June 2014

• Changes to assessment for Specialized Knowledge Cases

• Considerations as to meaning of ‘Specialized Knowledge’

• Salary Issues

• Control Issues


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• Specialized Knowledge:

• “Knowledge at an Advanced Level of Expertise”

PLUS

• “Proprietary Knowledge of the Company’s Product, Service, Research, Equipment, techniques or Management”

• (Test is ‘high degree’ of each of these, on a balance of probabilities)


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• Advanced Level of Expertise

• Specialized knowledge gained through significant and recent experience with the organization and used by the individual to contribute significantly to the employer’s productivity.

• Significant experience – no specific guideline, just that the longer the experience, the more likely the experience is specialized

• Recent – within the last five years


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• Proprietary Knowledge

• Company-specific expertise of a company's product or service where specifications that would allow other companies to duplicate the product or service would not have been divulged.

• Advanced Proprietary Knowledge:

• Uncommon knowledge of company’s products/services in international markets, or

• Advanced level of expertise or knowledge in company’s processes and procedures such as its production, research, equipment, and management.


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• Other Factors:• Wage

• Minimum of Prevailing Wage

• Do not include non-cash per diems (only directly paid monetary payments can be included)

• Control

• Worker to be clearly employed by, and under direct/continuous supervision of host company

• Typically, no training should be required


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• Exceptions/Breathing Room:

• Minimum Wage Guideline does NOT apply to ICTs under any Free Trade Agreement

• HOWEVER, it can still be a factor to be considered

• Note: GATS is NOT a Free Trade Agreement for our purposes

• Where agreement calls for different definitions, respect those definitions. • e.g. Peru Free Trade Agreements – 6 months’ experience


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• Corollary Issues:

• Difficulty ‘Parachuting’• Control issue means that sending someone for a few days may be difficult

• Issues re level of ‘Proprietariness’• How special does it have to be?

• NOC classifications• Reclassification could deny ICT status even if all other tests met

• Need for Alternatives/Creativity


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• Senior Managerial/Executive Intra-Company Transfers:

• Impact?

• Nothing Definitive

• Wages?

• Control?


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• Professionals• NAFTA; e.g. Management Consultant• GATS; industry specific, 90 day maximum• Other

• Reciprocal Benefit

• Significant Benefit

• Further Possibilities

LMIA EXEMPTIONS – OTHER CATEGORIES

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• Designated list

• Each has specific requirements• e.g. Bachelor’s Degree, membership in a professional association, etc.• Review NOC for considerations of profession

• Do not need Canadian licence for profession

• Need pre-arranged employment with Canadian company• ‘employment’ is often a contract for services• No self-employment

NAFTA PROFESSIONALS

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• List of approximately 60 occupations

• A random sampling includes:

• Agriculturist• Dentist• Seminary Teacher• Hotel Manager• Forester• Librarian

SPECIFIC NAFTA OCCUPATIONS

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• Engineer

• Degree or Licence

• Need not be licenced in Canada• (Note distinction for ‘letter of no objection’ in other categories)

SPECIFIC NAFTA PROFESSIONALS

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• Computer Systems Analyst

• Degree or Diploma/Certificate – Now field-related

• Must be doing ‘systems analysis’ – beyond basic programming

SPECIFIC NAFTA PROFESSIONALS (CONT.)

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• Management Consultant

• Degree in related field, or Five years’ experience

• Improving high level issues, not production

• Caution: open to abuse by clients, and skepticism by officers.


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• Scientific Technician

• Includes the fields of astronomy, biology, engineering, geology, and others

• Ability to solve practical problems

• Person being supported must qualify in their own right

• Questions about ‘construction trades’, e.g. electricians, aircraft technicians


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• GATS (Various Countries)• Engineers, Computer Specialists• 3 months

• CCFTA (Canada-Chile)• Engineer, Computer Systems Analyst

• CCoFTA (Canada-Colombia)• Negative list – no Pharmacists, Performing Artists, etc.

• CPFTA (Canada-Peru)• Negative list – no Pharmacists, Performing Artists, etc.

• CSKFTA (Canada-South Korea)• Contract Service Supplier• Independent Professional

• CETA (Canada-European Union)

NON-NAFTA PROFESSIONALS

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• Intra-Company Transfers• Senior Personnel• Specialists• Graduate Trainees

• Contractual Service Supplier/Independent Professionals:• Where there is contract between EU service supplier (with no Canadian office) and Canadian company• Up to 12 months• At least 1 year with EU-headquartered enterprise• University degree and professional licencing where applicable• Contractual Service Supplier: 3 years’ experience in sector• Independent Service Professional: 6 years’ experience in sector

CETA

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• Theory: Neutral Labour Market Impact

• Some formal programs, e.g.:• International Experience Class• Working Holidays

• Can be used by individual company• Need not be one for one• Need not be direct

• (i.e. Canada sends to Germany, Ireland sends to Canada)• Evidence:

• Rosters of Transfers In/Out; Global Mobility Policy

RECIPROCAL BENEFIT (C20)

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• Institutional Reciprocity

• Bilateral Agreements with Various Countries

• Various Programs, each with unique requirements

• Restrictions on:• Age • Renewal• Recently graduated (within the last year)

• Note: New ‘Pool’ System

INTERNATIONAL EXPERIENCE CLASS/WORKING HOLIDAYS

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• Must apply at visa post

• Trader:• Businessperson carrying on substantial trade between US or Mexico, and Canada

• Investor:• Businessperson establishing or advising an operation based on an investment in

Canada, where businessperson has committed or will commit a substantial amount of capital.

• Amount of capital relative to amount of investment• Intra-company alternative

INVESTORS/TRADERS

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• Significant Benefit• ‘Last Resort’• Allows for Creative Solutions;

e.g. consider impact, time frame, etc.

• Emergency Repair

• Provincial Programs• [Alberta Construction Workers]

OTHER NON-LMIA CATEGORIES

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• Employers must:• Pay $230 compliance fee • Provide an offer of employment via online portal• Provide specific company information

• Effect of non-completion/non-compliance• Refusal of Foreign Worker’s application• Possible other sanctions

NEW IMP APPLICATION REQUIREMENTS

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• √ Require LMIA and Work Permit• Requirements Set Out in IRPR s. 203

• √ Require Work Permit; LMIA Exempt (IMP)• Intra-Company Transferees• NAFTA, GATS, CCFTA, CPFTA, CCoFTA Professionals• Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other



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• IRPR ss. 186/187

• Examples:

• Clergy• Foreign Journalists• Certain Entertainers• Emergency Personnel

WORKERS NOT REQUIRING WORK PERMITS

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• Originally in FTA/NAFTA, now in broader IRPR

• IRPR s. 186(a)/187

• International Business activity/not entering labour market

• Examples:• Buying Canadian products or receiving training re goods• Intra-company training• Selling not to the general public• meetings

BUSINESS VISITORS

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• Remuneration must remain abroad

• Principal place of business must remain abroad

• Benefit inures to foreign company

• Consider aspects of ‘work’, ‘international in nature’, etc.

BUSINESS VISITORS (CONT.)

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• ‘eTA’• For non-visa nationals travelling to Canada• NOT a substitute for consideration of Business Visit vs. Work Permit• Effective November 10, 2016• Valid for 5 Years• Exceptions:

• US Citizens (US Permanent Residents Do Need an eTA)• Those with Study/Work Permit Issued after August 15, 2015• The Queen of England!

ELECTRONIC TRAVEL AUTHORIZATIONS

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• Port of entry vs. Visa Post

• Visa-Requiring Nationals with US Green Cards can use POE

• Traders/investors (even American) must use visa post

• Trade off: faster at port of entry, more thorough at Visa Post

• Visa Posts use ‘Visa Application Centres’ - issues

PROCEDURAL ISSUES

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• Pre-screening

• For Port of Entry opinion on non-LMIA (with no peripheral issues, e.g. criminality)• Not binding on POE, but, unless there is some major issue on entry,

should act as good insurance of validity of non-LMIA cases

• Send application to Immigration Mobility Worker Unit (IMWU – formerly TFWU)• Toronto for Ontario and west• Montreal for Quebec and east• Ensure proper forms depending on IMWU • Apply based on where person will be working

PROCEDURAL ISSUES (CONT.)

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• Work permit applications are legal procedures

• Legal procedures require evidence and legal argument

• Besides issues of rules of nature of evidence (e.g. when document should be certified), evidence should be considered to substantiate legal issues in question

DOCUMENTATION

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• Therefore, e.g.:

• Intra-company applications must establish• Affiliation of companies• Applicant’s history with company• Applicant’s specialized knowledge or managerial experience• Control issues• Anything else that may be considered in such an application

DOCUMENTATION (CONT.)

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• Professional applications must establish

• Professional qualifications• Citizenship • Pre-arranged ‘employment’ with Canadian entity• Anything else that may be considered in such applications


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• Evidence:

• Onus on Applicant

• Documentation could include:

• Resume• Reference letters• Company support letters• Job description

• (showing, e.g., training acquired, years of experience, degrees in the field)

• Company support letters• Publications/Awards• Description of Work to be Performed in Canada


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• Types of documentation to support:

• Use common sense

• Documentation to support issues in that case, e.g.• Pay stubs show work history• Corporate shares could show affiliation• No limit per se common sense


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• In addition to the above, of course, relevant forms should be provided depending on situation, e.g.:

• IMWU form for Toronto IMWU• Application for work permit at visa post

• Submissions are what tie facts/evidence/legal issues together

• The onus is on you to ensure officer has what he/she needs to make a decision, and to persuade him/her that the applicant qualifies under the relevant provision


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• Work Permit vs. Visa• Notations on work permits• Inland (Ottawa) visa processing

• Dependents (Work Permits)• Spouses anywhere (based on NOC: 0, A, or B)

• Dual Intent

• Others • non-immigration issues as well: tax, employment law, etc.

ANCILLARY ISSUES

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• Criminal matters

• Misrepresentation:• Directly/indirectly Misrepresenting or Withholding Material Facts• 2 Year Bar

• Previous Unauthorized Work• 6 Month Bar for New Work Permit

INADMISSIBILITY

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• Failure to Comply• Must meet requirements of LMIA, Work Permit, and General Law

• Violations can include:• Unapproved change of wages• Breach of Provincial Employment Standards• Failure to Maintain Records

• Therefore:• Maintain Records: 6 Years, including:

• Wages• Immigration Documentation• Other

• Proactive Compliance Systems

EMPLOYER COMPLIANCE

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• Failure to Comply - Impact

• Non-compliance can lead to

• Publication on ‘Black List’

• Inability to Renew LIMAs and Work Permits

• 1, 2, 5, 10 Year and Lifetime Bans on Hiring Foreign Workers (new)• Formerly 2 Year Bar

• Administrative Monetary Penalties (AMPs) up to $100,000 (new)

EMPLOYER COMPLIANCE (CONT.)

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• Factor 1: Types of Violations

• Group A:• Failure to demonstrate 6 years’ accuracy of work permit• Failure to retain necessary documents• Failure to comply with Compliance Review

• Group B:• Failure to comply with applicable Federal/Provincial law• Failure to provide foreign worker ‘substantially the same’ wages/working conditions as set out in application• Failure to fulfill obligations (e.g. transition plan) upon which work permit was based

• Group C:• Failure to keep workplace free from abuse• Failure to establish that company is actively engaged in business under which employment was offered


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• Inspection• there is reason to suspect non-compliance (i.e. a tip was received);• previous non-compliance; or• random selection [25% chance]

• Employer Compliance Review• Upon LMIA Application

• ‘Ministerial Instruction’• Information re Violation of Specific LMIA


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• Immigration, Refugees, and Citizenship Canada• www.cic.gc.ca

• NOC• http://noc.esdc.gc.ca/English/noc/welcome.aspx?ver=16

• Wages• www.jobbank.gc.ca

• ESDC Foreign Worker Program• http://www.esdc.gc.ca/eng/jobs/foreign_workers/index.shtml

• Employer Compliance Program:• http://www.esdc.gc.ca/en/foreign_workers/employers/employer_compliance.page#h2.1-h3.4

RESOURCES

http://www.cic.gc.ca/

http://noc.esdc.gc.ca/English/noc/welcome.aspx?ver=16

http://www.jobbank.gc.ca/

http://www.esdc.gc.ca/eng/jobs/foreign_workers/index.shtml

http://www.esdc.gc.ca/en/foreign_workers/employers/employer_compliance.page#h2.1-h3.4

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425 University AvenueSuite 200Toronto, Ontario M5G 1T6Tel: (416) 977-7500E-mail: [email protected]: www.kranclaw.comTwitter: @kranclawLinkedIn: ca.linkedin.com/in/benjaminkranc

Canadian Corporate Immigration

Who Knew Canada Could be So Warm?

Benjamin A. Kranc

canadian corporate immigration: who knew canada …€¦ · ircc: immigration, refugees and...

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