HR professionals are frequently asked whether a foreign national, who seeks to enter Canada in order to perform a specific task on behalf of their company, will require a work permit. HR Professionals should begin by referring to the definition of “work” under Section 2 of the Immigration and Refugee Protection Regulations (“IRPR”), SOR/2002-227.
According to Section 2, “work” means an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market. Clearly, the payment (or non-payment) of compensation is not conclusive; activities performed for free can still be considered work if a Canadian citizen or permanent resident might otherwise be hired to carry them out.
Even if a particular activity appears to fall under the definition of “work,” it may still be possible to carry on that activity without the need for a work permit. Section 186 lists a number of specific activities that do not require a work permit. Of course, the most significant of these activities is “a business visitor to Canada within the meaning of section 187.”
Section 187 provides further details regarding the business visitor category. According to Subsection 187(1), a business visitor to Canada is a foreign national who is described in Subsection 187(2) or who seeks to engage in international business activities in Canada without directly entering the Canadian labour market. Subsection 187(2) provides specific examples of who is considered a business visitor:
- Foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services;
- Foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of goods or services that results from the training is incidental; and
- Foreign nationals representing a foreign business or government for the purpose of selling goods for that business or government, if the foreign national is not engaged in making sales to the general public in Canada.
According to Subsection 187(3), a foreign national seeks to engage in international business activities in Canada without directly entering the Canadian labour market only if:
- The primary source of remuneration for the business activities is outside Canada; and
- The principal place of business and actual place of accrual of profits remain predominately outside Canada.
The language contained in the IRPR is helpful but still somewhat vague. For additional clarification, HR professionals should refer to the Foreign Worker Manual (“FWM”), which is published by Citizenship and Immigration Canada (“CIC”).
The FWM provides the following general criteria for business visitors:
- There must be no intent to enter the Canadian labour market, that is, no gainful employment in Canada.
- The activity of the foreign worker must be international in scope, that is, there is the presumption of an underlying cross-border commercial activity, e.g. after sales service; and
- There is the presumption of a foreign employer:
- The primary source of the worker’s remuneration remains outside Canada;
- The principal place of the worker’s employer is located outside Canada; and
- The accrual of profits of the worker’s employer is located outside Canada.
The FWM also describes several specific activities, which are deemed to fall within the general criteria for business visitors:
A U.S. based company provides marine maps and computer software to commercial and private mariners, including sports fishermen. The U.S. company has no subsidiaries or affiliates in Canada. In order to do this, the company needs to send two of their employees along with a boat load of this equipment to circumnavigate the Lake of the Woods, take depth and other readings, and return to the U.S. with their findings. Their findings will in turn be used to produce the marine maps and computer software. Since there is no Canadian employer contracting for their services, and since the U.S. company will be the direct beneficiary of the foreign worker’s efforts, business visitor criteria are satisfied.
After-sales services include those provided by persons repairing and servicing, supervising installers, and setting up and testing commercial or industrial equipment (including computer software). “Setting up” does not include hands-on installation generally performed by construction or building trades (electricians, pipe fitters, etc.). Section 187 also applies to persons seeking entry to repair or service specialized equipment, purchased or leased outside Canada, provided the service is being performed as part of the original or extended sales agreement, lease/rental agreement, warranty, or service contract. Service personnel coming to perform service work on equipment or machinery that is either out of warranty, or where no service contract exists, continue to require a work permit.
Warranty or service agreements
Service contracts must have been negotiated as part of the original sales or lease/rental agreements or be an extension of the original agreement. Service contracts negotiated with third parties after the signing of the sales or lease/rental agreement are not covered by this exemption. If, however, the original sales agreement indicates that a third company has been or will be contracted to service the equipment, Section 187 applies. Where the work is not covered under a warranty, a work permit is required.
Intra-Company training and installation activities
When a person is coming to provide training or installation of equipment for a branch or subsidiary company, they are considered to be business visitors. The same prohibition against hands-on building and construction work as for after-sales service applies. The foreign national should maintain their position in their home branch and not be paid by the Canadian branch above expenses. This provision may also apply to a trainer or specialized installer under an after-sales contract by the foreign branch (with the same conditions applying), as long as the service is provided company-wide and not just for the Canadian office.
Board of directors’ meetings
A person attending a meeting as a member of a board of directors may enter as a business visitor. While a board member may be well remunerated for their advice and expertise, they are considered to be business visitors under Section 187. There is a great deal of international mobility in this activity and there is no real direct entry into the Canadian labour market.
Employees of short term temporary residents
Persons employed in a personal capacity on a full-time basis by short term temporary residents, for example as a domestic servant, personal assistant or nanny (caregiver), would generally meet the business visitor criteria in Subsection 187(3) and may enter as such. If the visiting employer extends their stay in Canada such that their employee is no longer considered to be working predominantly outside Canada or their employee’s primary source of remuneration can no longer be considered to be outside Canada, then that personal employee is no longer considered to be a business visitor and may be required to seek a work permit and an LMO to continue working. A stay of longer than 6 months would normally be found to exceed the threshold required by Subsection 187(3).
Employees of foreign companies contracting Canadian companies
There are situations where foreign companies contract Canadian companies to provide services for them in foreign jurisdictions. It is not uncommon, where distances are great, that the foreign company will send one or more of their employees to Canada to ensure that the Canadian company is doing the job that they are contracted to do in a manner that meets the approval of the foreign company. Sometimes, these foreign nationals may be in Canada for up to two years.
Where the proposed activity falls within one of the specific examples mentioned in the FWM, it will clearly be considered a business visitor activity. However, in many cases, the proposed activity will not be an exact fit. As a result, there is a still a great deal of discretion on the part of the immigration officer.
When arguing that a foreign national is a business visitor, HR professionals should refer to the language contained in the IRPR, the general criteria described in the FWM, and (when possible) argue that their fact situation is analogous to one of the specific activities described in the FWM.
Henry J. Chang
Blaney McMurtry LLP
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