Author: Kranc Associates

One of the most difficult distinctions to make in Canadian corporate immigration law is establishing whether someone is entitled to enter Canada as a ‘business visitor’, or whether that person requires a work permit.

The lines are blurred, and getting it wrong can have significant consequences for both the ‘worker’, in terms of being turned away at a port of entry, being penalized for having worked without a work permit, and other issues, as well as for the employer, who may have failed to meet various legal and compliance requirements.

Immigration, Refugees and Citizenship Canada (IRCC) has now updated its guidance with regard to business visitors, which we will discuss below. Before looking at the guidance, a few notes about important considerations when it comes to business visitors:

• Firstly, it must be recognized that qualification as a business visitor is separate from the considerations of who needs a visa.
  • There is often a misconception that if you don’t need a visa, you can come to Canada as a ‘business visitor’. This is not correct – it depends on the activity, and the activity may require a work permit, no matter where you’re from.
• The brevity of the anticipated time to be spent in Canada is not determinative of whether someone is a business visitor.
  • There is another misconception that a brief visit as well means that it may be ‘business visitation’. Though brevity may provide some indicia of whether someone is entering the labour force, that factor alone does not necessitate a finding of ‘business visitor’.
• The fact that someone is being paid from abroad as well is not determinative of whether someone is a business visitor.
  • Yet another misconception – that being paid from abroad removes you from the possibility of needing a work permit. It is true that to be a business visitor, remuneration must be paid by an entity outside Canada. However, the fact that the outside entity is paying the worker, again, does not in and of itself tell us that he/she is a business visitor.

Looking now at the new IRCC guidance, the basic principles vis-à-vis business visitors remain in large part unchanged, but IRCC has enhanced some explanations and examples. Below are some pertinent elements of current guidance (incorporating prior and new provisions):

• Two primary principles vis-à-vis business visitor, are:
  • (a) That the prospective visitor is not to be competing in the Canadian labour market. Though the concept still leaves room for interpretation, this is refined by saying that a prospective visitor is not directly entering the Canadian labour market if:
    • the primary source of the remuneration for the business activity remains outside Canada
    • the principal place of business of the foreign national is located outside Canada
    • the accrual of profits remains outside Canada, and
  • (b) That the activity must be ‘international in scope’. IRCC again tries to provide examples of such activities, e.g.:
    • purchasing for a foreign company
    • receiving training from a Canadian parent or subsidiary of a foreign company

The list is not exhaustive (and therefore, again, not definitive).

• The above being said, IRCC then breaks down some of the more common situations where a foreign national may be considered a business visitor, the ones being most pertinent to corporate immigration being as follows:
  • Attendance at a Board of Directors’ meetings
  • Producers and essential personnel in commercial (advertising) shoots (e.g. actors, technicians) may be permitted entry as business visitors for a limited period (usually up to about 2 weeks)
  • Employees of foreign companies contracting Canadian companies
    • This may occur, e.g., where a Canadian company is providing service to a foreign company, and the foreign company needs to send staff to Canada to review the Canadian company’s progress.
      • The foreign employee must remain on foreign payroll, and the foreign company remains the beneficiary of the employee’s efforts.
    • After-sales service, where called for under a warranty or sales agreement, is permitted.
      • Note that, with limited exceptions, no hands-on construction activity is permitted, and the service agreement must be either
        • an extension of the original agreement
        • negotiated as part of the original sales, lease, or rental agreement.
      • Third parties may perform the services if called for in the initial agreement, but may not be performing service negotiated after the signing of the agreement.
      • Personnel performing software upgrades may also be business visitors if the activity is called for in the new agreement.
    • Supervisors may be business visitors where they supervise installation of specialized machinery purchased/leased outside Canada (and again, with limited exceptions, may not include hands-on work)
    • Trainers who train Canadians on specialized equipment after installation may also be business visitors.

The full updated IRCC business visitor guidance can be found at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/work-without-permit/business.html.

Certainly, as with every Canadian immigration matter, proper documentation and presentation of evidence to support the legal basis for the case, is essential.

The area remains a tricky one, and caution should be exercised. For those who do not need a visa, where there is any question or concern, a pre-screen may be considered (i.e. submission of materials in advance of travel to IRCC’s International Mobility Workers Unit for an opinion). Further, during COVID times, consideration must be had as to whether the activity is ‘non-discretionary’, and separately, what quarantining requirements may apply, and their impact on the visit.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

The province of Quebec administers a program of selection for those seeking permanent residence in the province. They have now announced that they will introduce pilot programs vis-à-vis ‘enhanced’ opportunities for up to 550 applicants (and their families) per year, for approximately five years, in each of three categories where Quebec has identified skills shortages:

• Workers in Food Processing (effective March 24)
• Orderlies [including Nurse Aides and Patient Service Associates] (effective March 31), and
• Workers in Artificial Intelligence (AI), Information Technologies and Visual Effects (IT-VE) (effective April 22)

In this article, we will focus on the third category – those in AI/IT-VE.

In the AI/IT-VE category, there are two distinct classifications:

• Foreign workers or Quebec graduates in Artificial Intelligence (275 slots/year), and
• Foreign Workers in Information Technologies and Visual Effects (275 slots/year)

Eligible applicants may submit an application for a Quebec Selection Certificate (CSQ), and must show, among other matters:

• Generally:
  • Proficiency in French (if submitting under the Francophone profile)
  • Economic Self-Sufficiency (in accordance with relevant factors otherwise established under Quebec regulations)
• In the case of an AI application:

• • For foreign workers:
    • A minimum educational equivalence to a Quebec bachelor’s degree
    • A minimum of 24 months’ full-time experience (in the preceding 60 months) in a NOC 0, A or B occupation (unless the person hold’s a Quebec equivalent Master’s degree obtained within the preceding 12 months from the date of application)
    • A Quebec job or job offer in the AI field, paying at least $75,000/year or $100,000/year in Montreal
  • For Quebec graduates:
    • Completion, within the preceding 24 months, of a Quebec post-graduate diploma (or higher) with at least ½ of the program having been completed in Quebec
      • Where the education is a post-graduate diploma, 6 months’ work in Quebec within the 12 months following the completion of the program
    • A Quebec job or job offer in the AI field

• In the case of an IT-VE application:
  • Minimum educational equivalence to a Quebec diploma (at a college level)
  • A minimum of 24 months’ full-time experience (in the preceding 60 months)
  • A Quebec job or job offer paying an appropriate wage at a 3-year experience level
  • Acceptable Job/Job Offer NOCs are:
    • 2171- Information systems analysts and consultants
    • 5241 – Graphic designers and illustrators (in the visual effects sector)
    • 0213 – Computer and information systems managers
    • 2173 – Software engineers and designers
    • 2133 – Electrical and electronics engineers
    • 5131 – Producers, directors, choreographers and related occupations (in the visual effects sector)
    • 2174 – Computer programmers and interactive media developers
    • 5225 – Audio and video recording technicians (in the visual effects sector)
    • 2281 – Computer network technicians
    • 2241 – Electrical and electronics engineering technologists and technicians

There are certainly further details, and those seeking to take advantage of the program (employer or employee) should consult appropriate counsel, but this does allow for enhanced possibilities for employers seeking to fill positions in these areas (and for the employees seeking to fill them). In many cases, temporary work permits would also be available to those who had been selected for the program, while the permanent residence applications are in process.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Yesterday, (February 18), we advised that, subject to a few exceptions (notably, ‘essential’ workers), all travelers to Canada arriving by air will be required to quarantine at a government-approved hotel starting Monday, February 22. (See http://www.kranclaw.com/2021/02/further-information-on-mandatory-hotel-quarantine/.) We also indicated that the list of allowable hotels, however, was not yet then available. The information from the government has been flowing piecemeal, but indeed, the government has now released the list of hotels. The list can be found at https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/latest-travel-health-advice/mandatory-hotel-stay-air-travellers/list-government-authorized-hotels-booking.html. The site also gives further instructions about how to reserve, etc.

Travelers are required to make a reservation at an approved hotel in advance of travel. This requirement does not apply to entry to Canada by land.

Note that this requirement is still in addition to other measures in place, including pre-flight and on-arrival COVID testing, and the ongoing quarantine requirement for the balance of the 14 days after the 3-day hotel stay.

We will continue to monitor COVID-related and immigration issues that may impact travel to Canada, and advise accordingly. All travelers must be cognizant of the requirements, failing which, there may of course be negative outcomes, and notably the inability to travel to Canada.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

As recently advised in a prior issue of ImmPulse™, subject to a few exemptions (e.g. those working in ‘essential’ jobs in Canada), persons entering Canada by air will soon need to carry out the first 3 days of their 14-day quarantine in Canada in an approved hotel, and at the traveler’s expense. (See http://www.kranclaw.com/2021/01/canada-tightening-covid-related-entry-requirements/.) It would seem also important to reiterate that, at least as of now, the provision does not apply to those entering at land-border ports of entry.

Further information about the mandatory hotel stay is trickling out slowly, but the government has now indicated that the requirement will be enforced commencing Monday, February 22, 2021. Unfortunately, the list of hotels available for the stay is still not available. We had hoped to provide a more complete summary of the requirement, but thought it best that readers be apprised of the implementation date, even if other details are not fully available. We will of course update the information as soon as further details are available.

Readers may wish to take a look at https://travel.gc.ca/travel-covid/travel-restrictions/flying-canada-checklist, which provides a checklist of things to consider when flying to Canada (and which may provide the details concerning approved hotels once it is available).

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

The government has announced that effective February 15, anyone entering Canada through a land border crossing will be required to show a negative COVID PCR test result, completed within the prior 72 hours. This measure was already in place for air travel.

These measures are in addition to, and not in substitution for, any other COVID-related travel restrictions/allowances, for instance, disallowing non-essential travel, but permitting various types of travel for work. These measures also do not alter the need for 14-day quarantine (unless deemed to be in an essential service) for those entering Canada.

All people entering Canada must show the test – even Canadian citizens and permanent residents. Though citizens and permanent residents cannot be denied entry, non-compliance could lead to fines.

We are still awaiting details on the other recently-announced measure indicating that those arriving by air would be subject to a 3-day stay in a government mandated hotel (at the traveler’s cost).

Of course, further details on all such matters will be provided as they become available.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

There are new developments with regard to travel to Canada under COVID regulations, at both the federal and provincial levels.

Canada

The federal government has announced the following new measures for travellers entering Canada:

• Effective February 3, at 11:59pm EST, all international passenger flights must arrive through one of four approved airports. Previously, flights from the U.S., Mexico, the Caribbean, and South America, along with private/business and charter flights, were exempted. The four airports are:
  • Montréal-Trudeau International Airport
  • Toronto Pearson International Airport
  • Calgary International Airport
  • Vancouver International Airport

Note that cargo planes and flights from Saint-Pierre and Miquelon continue to be allowed to enter through other airports.

• At a date to be established (within coming weeks), with few exceptions, all air travellers entering Canada will be required to:
  • undergo a COVID-19 molecular test on arrival, and
  • quarantine for three nights (at their own expense) at a government approved hotel at their own cost
    • cost is estimated at $2,000CDN – given accommodation, food, and security costs

If the COVID-19 test result is negative, travellers will then be allowed to continue the balance of the still-required 14-day quarantine at their homes or other ordinary places of quarantine.

• Travellers entering by land will now be required to take a COVID-19 molecular test within 72 hours prior to entry (similar to the requirement now in place for air travellers).
• The full list of exemptions for any of the quarantine or testing requirements noted is not yet available, but will certainly relate to ‘essential services’. With regard to entry via land-border, for instance, truckers transporting goods will be exempt from the testing and quarantine requirements.
• Compliance checks will be increased, to confirm quarantine compliance.

Ontario

Further, the government of Ontario has announced additional measures for those arriving through Toronto’s Pearson Airport. Effective Monday, February 1, at 12:01pm all arriving travellers will have to undergo COVID-19 testing. This requirement is a ‘stop gap’ until the federal measures go into effect.

Impact on Business/Work Travel

Business travellers/workers may still travel to Canada – but they do of course need to be aware of the above issues in facilitating their entry, and all other requirements that remain in place.

We have certainly seen an uptick in government COVID compliance audits, and these will certainly increase now. As such, all involved in business/work travel – employers and employees – must be fully aware of requirements to avoid financial penalties or other sanctions.

We will of course continue to provide updated COVID-related and non-COVID-related immigration updates as they occur, keeping our readers abreast of the ever-changing Canadian business immigration environment.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

After the initial COVID-19 outbreak, most Visa Application Centres (VACs) around the world closed. VACs carry out certain functions on behalf of Canadian consular posts in the furtherance of immigration processing, including the collection of biometric information. Without VACs, many otherwise valid immigration applications are stalled. Over time, some VACs around the world have begun reopening, and in some cases, the reopening was for limited application types.

VACs in India were indeed closed with the onset of COVID-19, but re-opened for limited application types in November 2020, notably for certain family class matters – that is, sponsorships of spouses/partners and dependent children.

It has now been advised that VACs in India will process biometrics for work permit applications. Though there still may be other COVID-related factors and procedures to consider for the purposes of travelling to Canada for work, it would appear that this element is easing. Work permit applicants with a Biometrics Instruction Letter (BIL) issued by Canadian immigration authorities (after an application is submitted) may now contact Indian-based VACs for appointments. Details, and information about specific VAC offices, may be found at https://visa.vfsglobal.com/ind/en/can/covid-19-updates.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

The International Experience Class (IEC) is a program which allows foreign nationals who meet certain criteria, and who are from specified counties, to temporarily work in Canada (and Canadians to work in those foreign countries). The IEC is divided into three groupings:

• Working Holiday: Open work permits that allow foreign nationals to work anywhere in Canada
• International Co-op: Pre-arranged work placements for foreign students
• Young Professionals: Pre-arranged work placements for foreign nationals seeking to gain experience in their professions.

There are certainly details to these programs (including age restrictions, quotas, requirements for employers, etc.), but these are the three primary branches of the program.

One country with which Canada has had limited cooperation under the program is Italy. For Italians, only the working holiday option has been open, for people aged 18-35, and only for a maximum period of six months. However, Canada and Italy have now signed a new agreement (to be ratified), allowing participation in the other branches of the IEC (Young Professionals and International Co-op), for up to 12 months, with an allowance to participate twice (i.e. a total of 24 months).

Note that under current COVID rules, participation can only occur with a current/valid job offer, and participants will need to abide by quarantine and other requirements.

The expansion of the program should create opportunities for many Italian citizens, and Canadian employers who may seek their skillsets.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Under Canadian law, any foreign national in Canada must maintain proper immigration status (whether as a worker, student, or visitor). This is done through renewals of immigration documents via an inland process. However, the law allows that in some cases, persons whose status has lapsed may still reinstate their status through a process called ‘restoration’. The law provides that such restoration can be done for up to 90 days after the lapse of status. (Though beyond the scope of this article, there are caveats and considerations with regard to, among other issues, the right of foreign workers to continue to work until worker status is restored, etc.)

In July 2020, in view of the COVID pandemic, Immigration, Refugees and Citizenship Canada (IRCC) announced that the usual 90 day period for restoration would be extended to allow for restoration until December 31, 2020. (See details at https://bit.ly/3s6f7tS.)

IRCC has now announced that this program of leniency will be extended to August 31, 2021. Note that this provision applies to foreign nationals in Canada on or after January 30, 2020, and whose status may be expiring up until May 31, 2021.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Effective January 7, those seeking to fly to Canada will be required to present to the airline a negative PCR-based COVID-19 test, in order to be allowed to board. The test must have been taken no more than 72 hours before scheduled departure. Further details can be found at https://bit.ly/3bhHPSG.

This new requirement is in addition to any other COVID-related requirements including the need to secure authorization to travel, the need to present a quarantine plan through the ArriveCan app (see https://bit.ly/2JPAAWN), and the need to quarantine for 14 days on arrival. (Note though the pilot program in Alberta which allows testing on arrival, and then again 6 or 7 days later, so that the 14 days is shortened. See https://bit.ly/395zyyx).

Note further that the government is indeed increasing surveillance – and auditing many employers – and that there are significant penalties for violations of quarantine requirements, including imprisonment and fines.

As such, travelers must of course be aware of this, as must their employers, in an employment situation.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.