November 22, 2016
Canada’s most important trading relationship might undergo some change with the results of the 2016 U.S. election. Facilitating cross-border mobility between Canada and the U.S., however, remains vital for both countries. The “business visitor” visa was designed to grant people, from the U.S. and elsewhere, entry to Canada without the usual requirement for a work permit. But the current criteria for who does – and doesn’t – qualify as a “business visitor” and the process to obtain that status lack the clarity to achieve this objective.
Improving cross-border mobility was the driving force behind the inaugural 2016 U.S.-Canada S.A.G.E. Summit in June 2016. For the first time, more than 200 delegates representing 60 leading cross-border businesses, policy and political leaders from both Canada and the United States came together to discuss “strategies, advocacy, gateways and engagement” (S.A.G.E.) with the purpose of establishing a consistent message, from stakeholders to governments of both countries, of ways to streamline cross-border movement of goods and people. Summit delegates issued the initial “Columbus Declaration”, a set of deliverables intended to advocate for fewer restrictions and headaches for business relationships between the two countries. Delegates identified labour mobility as one of the top three most pressing areas to be addressed, and specifically supported an immediate call to action by both governments to provide clarity and training of border officials so there is consistent processing of “business visitor” applicants. On October 5, 2016, 40 key stakeholders met again in Washington, D.C to adopt a final version of the Columbus Declaration and began work on a S.A.G.E. 2017 Platform members intend to present to both governments after the inauguration of the new U.S. President.
A current hindrance to that cross-border mobility is that a businessperson visiting Canada does not necessarily qualify as a “business visitor” for Canadian immigration law purposes. A person coming to Canada for business may require a work permit to enter and carry out their intended activities, even if they are only in Canada for a few days. However, a person who does qualify as a “business visitor” is exempt from that work permit requirement and is granted temporary entry to Canada for a stay of up to six months. This work permit exemption is valuable because obtaining one can be a complex process. There’s a fee, and unless the individual meets one of the narrow exemptions for a labour market impact assessment (LMIA), it’s very difficult to get a work permit without a LMIA – in itself a time-consuming and costly process.
Here are the criteria to qualify as a “business visitor” to Canada, the process to obtain that “business visitor” status, and five tips for dealing with the pitfalls.
THE “BUSINESS VISITOR” CRITERIA
Qualifying for “business visitor” status and the accompanying work permit exemption is entirely dependent on the nature of the intended activities, and the broad criteria leave plenty of room for ambiguity.
Immigration and Refugee Protection Regulations (IRPA). Under these regulations, foreign nationals are permitted to work in Canada without a work permit as a “business visitor”. Defined broadly, a business visitor is a foreign national who seeks to “engage in international business activities in Canada without directly entering the Canadian labour market,” and whose principal place of business, primary source of remuneration and the place of accrual of profits remain outside Canada. The Temporary Foreign Worker Guidelines (Guidelines) is a policy manual developed by the Canadian government to guide immigration officers in their interpretation and application of the IRPA and NAFTA. The Guidelines provide illustrative examples of qualifying activities, including: after sales service/warranty work, purchasing Canadian goods or services for a foreign business, or receiving training in respect of such goods or services; receiving or giving training within a Canadian affiliate of the corporation that employs them outside of Canada, if production resulting from the training is incidental; and representing a foreign business for the purpose of selling goods, but not making sales to the general public.
NAFTA. The North American Free Trade Agreement (NAFTA) also permits the nationals of member countries (the U.S. and Mexico) to work in Canada without a work permit as a “business visitor”. NAFTA’s business visitor criteria parallels that of the IRPA by reference to activities that are similar, but not identical, to IRPA’s “permitted activities”. NAFTA qualifying activities include those related to the following (and commonly include participating in business meetings, conventions, conferences, consultations and negotiations respecting them): research and design; growth, manufacture and production; marketing; sales; distribution; after-sales services/warranty work; and general service. U.S. and Mexican nationals can therefore enter Canada as a business visitor under IRPA and/or NAFTA with little practical distinction.
The Ambiguity. At first blush, the activities qualifying a businessperson entering Canada as a work permit exempt “business visitor” appear straightforward. However, attempting to apply some of those activity criteria reveals ambiguity and inconsistency. The “after-sales service” category offers a useful illustration of this ambiguity. Both the IRPA and NAFTA expressly list after-sales service as a qualifying activity. In both, “after-sales service” includes after-lease and after-purchase service; this in turn includes the repair and servicing, and setting up and testing, of commercial or industrial equipment and the supervision of installers doing such work. On its face, arguably clear; in practice, however:
THE BUSINESS VISITOR (NON) APPLICATION PROCESS FOR U.S. (& OTHER VISA-EXEMPT) NATIONALS
Similarly, the process of applying for “business visitor” status – or more accurately, the lack of one – leaves room for clarification.
No official application. The lack of an official application is a perhaps welcome informality, but it creates uncertainty around whether a person qualifies as a “business visitor”: Canadian immigration officers have wide discretion to accept or reject entry to Canada as a “business visitor”, and that discretion is applied inconsistently at different ports of entry.
No advance process. Adding to this uncertainty is that Americans and other visa-exempt foreign nationals can’t seek authorization to enter Canada as a “business visitor” in advance, but must apply at a port of entry on arrival in Canada. And denial at that late time can create cost and business consequences.
TIPS FOR BEING A GOOD (BUSINESS) VISITOR
Despite the issues inherent in the business visitor criteria and in the process (or lack thereof), obtaining “business visitor” status to enter Canada can be a fast and relatively stress-free process for visa-exempt foreign nationals, particularly those from the U.S.
Define the Activities. First, give some thought to the activities the businessperson intends to perform in Canada and the qualifying “business visitor” activities under IRPA and, if applicable, NAFTA. Determine which one(s) fit – or might fit. And write them down and bring them along.
Documentation. A person who has determined their activities fall within the “business visitor” exemption must still ensure they prepare and have with them the proper documentation to demonstrate this. Here are five key documents a “business visitor” will not want to cross the U.S.-Canada border without:
Please contact your McInnes Cooper lawyer or any member of the Immigration Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2016. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
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This publication has been updated as at August 25, 2022. Many believe that only public companies or large, established companies with many…
Sep 11, 2014
The Canadian federal government has been concerned for some time about “treaty shopping” by non-residents – the practice of non-residents…
Aug 1, 2014
Most Canadians have heard about Canada’s Anti-Spam Legislation (CASL): we’ve been bombarded with “CASL Compliant” emails asking us to…
Jul 9, 2014
On June 20, 2014 the Federal Government announced a major overhaul of Canada’s Temporary Foreign Worker Program. With stringent enforcement…
Apr 3, 2014
On March 28, 2014 the Federal Government tabled Bill C-31 to implement the 2014 Federal Budget – including broad authority to impose cash…
Jan 21, 2014
On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal…
Nov 8, 2013
On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…
Jul 2, 2013
On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…
Apr 30, 2013
Note: Effective December 31, 2013, the Federal Government made additional changes to the Federal Temporary Foreign Worker Program. Click here to…
Jan 8, 2013
On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…
Nov 28, 2012
On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…
Oct 22, 2012
Mr. Cole was a high school teacher with an employer owned and issued laptop computer. He also used it for incidental personal purposes, which…
Jul 10, 2012
On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…
Jun 14, 2012
As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it? This year, July 1st falls on a Sunday. …
Mar 1, 2012
Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessarily – and potentially costly –…
Jan 5, 2012
Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a…
Dec 19, 2011
In a decision with application to Atlantic Canada, the Ontario Court of Appeal found that an employer’s multiple extensions of a terminated…
Aug 6, 2011
Note: On June 14, 2013 the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v.…
May 6, 2011
In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…
Mar 6, 2011
In the midst of a sea of change, the Federal Government has enacted Regulatory changes significantly impacting employers who hire foreign…
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