Comparing Canadian Immigration Options for Foreign Workers

The Global Talent Stream (“GTS”) was launched by the Immigration, Refugees and Citizenship Canada in June 2017 to provide “innovative firms in Canada with a faster way to hire highly qualified foreign talent when Canadians or permanent residents are not available.”

The goal is to provide faster and more predictable application processing and that is clearly a laudable goal in and of itself.  Yet there are other options which can expedite entry of foreign workers notwithstanding GTS.  However, employers should examine the GTS.

The GTS is available to two categories of employers seeking Labour Market Impact Assessments (“LMIA”) required foreign workers:

Category A

Firms in Canada that are referred to the GTS by an Employment and Social Development Canada designated partner.

Category B

Firms in Canada seeking to hire foreign workers for highly skilled in-demand occupations found on ESDC’s Global Talent Occupations List.

 

Employers applying to the GTS will receive, according to the website, an ESDC Service Standard of 10 business days and the LMIA approved worker applying for a work permit outside of Canada is eligible for a 14 calendar day processing period.

But if an employer takes the GTS approach, that employer must develop a Labour Market Benefits Plan as part of the process, which includes filing an application package and documentation (including proof of business legitimacy) filed with ESDC and pay $1,000 for each position requested.

There are commitments in the Benefits Plan.  If the employer is a Category A applicant, it must commit to creating jobs as a mandatory benefit.  Category B applicants must commit to increasing skills and training investments for Canadians and permanent residents as your mandatory benefit.

In addition to the applicable mandatory benefit under Categories A or B of the Labor Benefits Plan, the Employer must commit to achieving a minimum of two complimentary benefits separate from the mandatory benefits.  With each benefit, the employer commits to one activity.

For example, the Government website identifies complementary benefits such as job creation, investment in skills and training and the transfer of knowledge to Canadians.  Activities to support mandatory and complementary benefits include increasing the number of Canadian and permanent residents employed full time or part time by the employer.

ESDC works with the employer to complete the Plan but the plans are subjected to Progress Reviews every 6 months.

The process can be onerous where the employer needs a foreign worker to fill a vacancy quickly.

The question then becomes whether a Canadian based employer seeking to recruit foreign workers should examine other lawful means to eliminate the LMIA process, under the GTS or otherwise.

It may not always be possible to avoid the LMIA process or the expedited LMIA  process under the GTS.  However, it is prudent for employers anticipating or needing temporary foreign workers to examine LMIA-exempt categories that will fundamentally reduce processing times, as they eliminate Service Canada (a.k.a. ESDC) from input into the process. Alternatives which lead to the direct issuance of a work permit and bypass the LMIA process include the General Agreement on Trade in Service (GATS); s. 205 of the Immigration Regulations which addresses significant benefits; and the labour mobility provisions in Free Trade Agreements like NAFTA and CETA.

Four Alternatives to GTS and the LMIA Process

A. GATS

The General Agreement on trade in services permits temporary entry of business persons in 3 categories – business visitors, intra company transfers and professionals.

Business visitors and intra company transfers entering under GATS qualify under general Immigration Regulations s. 186 and s. 205, respectively.  Business visitors are not only exempt from the LMIA process, but are also exempt from obtaining work permits.  Intra company transfers and professionals need a work permit.

However, the professional category is limited to 9 occupations and 90 days of entry within 12 months.  The 9 occupations include:  engineer, agrologist, architect, forestry professional, geomatics professional, land surveyor, foreign legal consultant, urban planner, and senior computer specialists.

B. Regulation 205 Pursuant to the Immigration and Refugee Protection Act

This regulation allows entry by foreign workers on LMIA exempt work permits if the work would create or maintain significant social, cultural or economic benefits or opportunities for Canadians or permanent residents.

Typical examples of such candidates include, but are not restricted to:

  • Intra-company transferees;
  • Self-employed workers; and
  • Emergency repair personnel

C. NAFTA

The North American Free Trade Agreement (“NAFTA”) was enacted on January 1, 1994 and is applicable to nationals of the United States, Mexico and Canada.

Chapter 16 of NAFTA deals with the temporary entry of selected business persons.  Of that group of business persons, professionals, intercompany transferees and traders/investors are also LMIA exempt, but require work permits.

Business visitors conduct the following activities without the requirement of a work permit:

  • Consultation/business meetings
  • Contract negotiations
  • Sales negotiations
  • Research
  • Participation in educational activities
  • Business conventions or seminars
  • International business activities related to research and design
  • Growth, manufacturing/production, marketing, sales, distribution

Business entries are short term.  Essentially such business persons are remunerated from outside of Canada and the principal place of business and actual place of accrual of profits remain outside of Canada.

NAFTA Professionals

NAFTA Professionals provide pre-arranged professional services as a salaried employee of a Canadian company or by contract between the person and the Canadian employer or by contract with the person’s company and the Canadian based employer.

Only about 60 professional occupations qualify and these individuals must be performing services in Canada in their profession.

NAFTA Professionals may receive a work permit for up to three years at the discretion of the immigration officer.

Intra Company Transfers

Intra Company Transfers are those Foreign nationals employed by US or Mexican enterprise as a manager or executive or who possesses specialised knowledge may transfer to the parent, branch, subsidiary or affiliate in Canada to provide services in a similar capacity (*But employed at least one year in the past 3 years by the foreign entity).

The validity periods vary for work permits and the validity period could be engagement specific, or range from 1 to 3 years.

The maximum validity period is 7 years for executives and managers and 5 years for specialized knowledge workers.

It is open for foreign companies to transfer an executive, manager, or person with specialized knowledge to a new start-up company in Canada, provided the start-up is an affiliate, branch, subsidiary or parent of the foreign company.

NAFTA has clear advantages over the LMIA process.  However, the entire agreement, including Chapter 16 is under scrutiny as negotiations continue between Canada, the United States and Mexico.  NAFTA’s longevity remains an issue, therefore, employers should examine their ability to recruit from nationals of the signatories to the Comprehensive Economic Trade Agreement between Canada and the countries of the European Union.

D. Comprehensive Economic Trade Agreement (“CETA”)

The objective of this agreement is to facilitate trade in services and investment by allowing temporary entry for natural persons for business purposes.  The agreement facilitates entry for citizens of member nations by eliminating the LMIA process.

The agreement applies to key personnel, contractual service suppliers, independent professionals, and short term business visitors. Each category has a specific definition, and each category requires a work permit except as noted.

Key Personnel

Business Visitors for Investment Purposes

Natural persons working in a managerial or specialist position responsible for setting up an enterprise – an enterprise is defined as Corporation, trust, partnership, sole proprietorship or joint venture. No work permit is required for this category.

Investors

Natural persons who establish, develop or administer the operation of an investment in a supervisory or executive capacity and to which that person has committed or the enterprise employing the person has committed, or is in the process of committing, a substantial amount of capital.

Intra Corporate Transferees

Individuals employed by an enterprise of one party for one year or have been partners in an enterprise for one year, temporarily transferred to a subsidiary, branch or parent in the territory of another party

The person concerned must belong to one of the following categories:

Senior Personnel

Directing the management of the enterprise and who exercise wide latitude in decision making

Specialists

Individuals who possess uncommon knowledge of enterprise products or an advanced level of expertise or knowledge of an enterprise, its production or research, its equipment or techniques or management

Graduate Trainees

Individuals who hold a degree and are temporarily transferred for training purposes

Contractual Service Suppliers

Those individuals employed by an enterprise in one party with no entity operating in another party, where the enterprise concludes a contract to supply services to a consumer in another party and its employees are required to fulfill contractual obligations.

This category is restricted to contracts of 12 months duration.

The employee must have performed the services for the enterprise for at least 1 year prior to entry and have 3 years professional experience in the sector which is the subject of the contract.

The employee assigned to the task must possess a university degree or equivalent qualification and professional qualification where required, by-laws of the party where the service is supplied.

Independent Professionals

Independent Professionals are restricted to Service contracts of 12 months only.  This is category applies to natural persons engaged in supply of services who are self-employed; who have concluded a service contract with a consumer in another party, and are required by a consumer in other party to perform services.

Independent Professionals must have 6 years professional service in the sector of activity in which they will be employed.  Independent Professionals must possess a university degree or qualification demonstrating knowledge of an equivalent level and professional qualifications to perform activity in the other party as required.

Short Term Business Visitors

Short terms business visitors conduct activities that parallel business visitors under NAFTA, such as meetings, consultations, R & D, marketing, and training seminars, etc.  There can be no remuneration from a source in the party where the business visitor is staying temporarily and those visitors must not engage in sales to the general public.  No work permit is required.

In terms of the length of stay, candidates under CETA are permitted to remain in Canada as follows:

Inter Corporate Transferees

The lesser of 3 years or length of the inter corporate transferee with a possible extension of up to 18 months if a specialist or senior personnel.  For graduate trainees, the lesser of 1 year or the length of the contract

Investors

1 year with possible extensions

Business Visitors for Investment Purposes

90 days within any 6 month period

Contractual Service Suppliers/ Independent Professionals

A cumulative period of not more than 12 months

Short-term Business Visitors

90 days maximum in any 6 month period

With respect to Contractual Service Suppliers and Independent Professionals seeking to enter Canada to work on LMIA exempt work permits, there is a specific list of service sectors set out in Annex E and a corresponding chart published by Canadian authorities identifying the actual occupation for which an LMIA exempt work permit will be available.  The Canadian chart identifies managerial and professional occupations only.  Employers who use the contractual service suppliers or independent professionals will pay a $230 fee to the government for the privilege of using this LMIA exempt device.

Conclusion

The point of the article is to demonstrate to those employers who identify a need for temporary foreign workers to consider options beyond the Global Talent Stream or the LMIA process in general.

In particular, where the need for foreign workers is immediate, employers need to be cognizant of their options.