It must first be noted that Canada has two separate governments from an immigration standpoint -- the Quebec provincial government and the Canadian Federal government for the remainder of Canada. While the general approach taken is the same for both governments, Quebec routinely requires additional requirements and/or documentation.

As with most countries, Canada seeks to protect its own workers from foreign intrusion. This is done by requiring non-Canadian nationals to obtain an "employment authorization" from the Canadian government before a foreign worker can work in Canada. An employment authorization is obtained from a Canadian embassy or consulate, or at the Canadian border, depending upon the nationality of the worker.

In some instances, an "employment validation" must first be obtained before an employment authorization can be issued. An employment validation is similar to the labor certification green card process in the United States in that an employer must test the local labor market to demonstrate that there are no qualified Canadian citizens or permanent residents available to fill the position for which an employment validation is sought. Needless to say, employers strive to avoid the employment validation process wherever possible.

Visitor visas are required for those business visitors: (a) who are not providing services in Canada; and (b) who require a visitor visa to enter or transit Canada. For a list of nationalities that require a visitor visa to enter or transit Canada, as well as a list of exemptions to the visitor visa process, please click here. If a visitor visa is required, the employee must apply for the visa from a Canadian embassy or consulate before entering Canada. Note that Canada is a member of the Asia Pacific Economic Cooperative ("APEC"), but does not participate in the APEC Business Travel Card program.

Business visitor activities which are permissible under Canadian Immigration Regulations generally include: attending business meetings; negotiating business agreements; discussions with Canadian clients, customers or suppliers; participation in educational, professional or business conventions; attempts to solicit business (though not to the general public); and fact-finding missions. What is not permitted is providing any type of work or service at a Canadian client's location. If any services are provided, the employee must obtain an employment authorization, or be performing an employment authorization-exempt activity.

If an employee is not a US or Mexican national, (s)he may also enter Canada under the General Agreement on Trade in Services (or "GATS"). There are 140 signatory countries under GATS, so it applies to far more employees than NAFTA, and is one of the common Agreements relied upon to move businesspersons across national boundaries. In order to rely on the immigration provisions of GATS, the employee's home country, country of residence and country (s)he is traveling to must all be GATS signatories; although permanent residents of three countries, Australia, New Zealand and Switzerland, may also rely on GATS. Moreover, the employee must be employed in one of the service sectors enumerated in the agreement.

For more information regarding GATS, please refer to our GATS Information Sheet. In general, however, business visitors from signatory states may enter another signatory state for a period of up to six months as a business visitor for the purpose of attending business meetings, developing business contacts, establishing a business strategy, or negotiating an agreement for the sale of goods or services. As for all business visitors, GATS business visitors cannot be paid by the customer in the country the employee is visiting; nor can (s)he perform services as a business visitor.

The North American Free Trade Agreement (or "NAFTA") applies to nationals from the United States, Canada and Mexico. It allows citizens of these countries to travel between each country with minimal formalities, although this is not especially true for Mexican nationals.

Permissible business visitor activities are the same as those listed above, as well as business activities related to research and design, growth, manufacturing and production, marketing, sales and distribution, after-sales service and general sales.

The "after-sales service" activities that fall within the ambit of business visitor activities include installing, repairing or maintaining commercial products (including computer software) or equipment; or training Canadians to service or use such products or equipment. One key limitation to this category of activities is that the product must be undertaken pursuant to a written contract and involve specialized knowledge of the product that is essential to the service agreement. Most importantly, however, is the limitation that the product must have been developed outside of Canada.

There are a number of categories of workers that are exempt from the employment authorization process. Remember that even if an employee does not require an employment authorization, (s)he may still require a visitor visa (see above). The most common categories of workers relied upon by businesses include:

• Buyers;
• Sellers;
• Employees visiting a Canadian branch office;
• Guest speakers;
• Trainees at a Canadian office of a multinational corporation;
• Convention organizers;
• Business visitors under GATS or NAFTA (discussed above).

The "business visitor" category is discussed above, under the "Visitor Visa" section of this page. The remaining categories are generally self-explanatory. However, it should be noted that employees of a multinational corporation, union or organization who enter Canada for a period of less than 90 days for the purpose of visiting a Canadian branch office may only enter in order to consult or negotiate with other employees or members of the corporation, union or organization. They may also enter Canada to inspect a Canadian branch office or headquarters. However, they may not provide services to the branch office (i.e., they may not engage in "productive work" at the branch office. However, they may "conduct business").

The same is true for trainees of a multinational corporation. Such corporations may train its employees in its Canadian branch or headquarters so long as the trainee does not engage in productive work. Permissible activities include upgrading an employee's skills, familiarizing an employee with corporate business practices and/or formal classroom training. This training can also include some "hands on" training. However, such hands on training must be carefully supervised in order to preclude the appearance that the employee is engaging in productive work

.

If an employee must enter Canada, but cannot qualify under one of the criteria listed above, (s)he may still enter Canada on an employment authorization. The key to this situation is to avoid the employment validation process if at all possible.

Employment authorizations can be applied for either at a Canadian embassy or consulate, or at the Canadian border, depending on the employee's nationality. If an employee requires a visitor visa, (s)he must apply for an employment authorization at a Canadian embassy or consulate. If the employee does not need a visitor visa, (s)he may apply for an employment authorization at the Canadian border. Employment authorizations are valid for up to six months, but can be extended for up to three years. The length of time issued, however, depends upon the reason the employee is entering Canada.

Subsection 20(5)(e)(i) of Canada's Immigration Regulations includes a number of subcategories that the Canadian government anticipates will create significant employment, benefits or opportunities for Canadian citizens or permanent residents. A number of these categories are especially relevant to multinational corporations.

Repair, Service or Supervision Work Subcategory

Employees who are involved in the repair, service or supervision of installation of specialized equipment purchased or leased outside of Canada may enter Canada to provide "after-sales service " to a Canadian customer. Such service includes the installation, repair or service of such equipment. Employees may also enter Canada to provide familiarization sessions to prospective or existing customers who purchased or leased specialized equipment outside of Canada.

"Significant Benefits" Subcategory

The "significant benefits" subcategory is a catch-all provision that allows Canadian consular officers to exercise wide discretion to grant employment authorizations that, in the consular officer's opinion, would create a significant benefit to Canada. Oftentimes, if an employee does not fall under the scope of NAFTA and GATS, this is the only option available for applying for an employment authorization. Because issuance of an employment authorization is solely within the discretion of a consular officer or border officer in this instance, the documentation supporting the significant benefits to be gained through the employee's employment in Canada is critical.

Another subcategory under subsection 20(5)(e)(i) of Canada's Immigration Regulations is the transfer of senior executives and managers to a branch, subsidiary or parent that is conducting business in Canada. It is important to note that supervisors, foremen and employees with "managerial-sounding" titles cannot qualify under this subsection. The position from which the employee is transferring, as well as the position the employee is transferring to must be unambiguously a senior executive or manager position. Nor does this subsection apply to employees with "specialized knowledge" of the company transferring the employee. As such, this subcategory is more limited in scope than the L1A and L1B nonimmigrant visa categories under GATS or U.S. immigration law.

This category of GATS is designed to facilitate the transfer of executives, senior managers and specialists to Canadian-based operations that is a parent, branch, affiliate or subsidiary of the employer. The employee must have been an executive, manager or specialist with the company for at least one year prior to the transfer. An intra-company transferee under GATS may enter Canada for a maximum of three years. Extensions for up to a total of five years may be obtained for executives and managers if such extensions are in "the best interests of Canada". Specialists cannot obtain any extensions beyond the three-year period. For more information regarding GATS, please refer to our GATS Information Sheet.

In general, intra-company transfers under NAFTA are equivalent to intra-company transfers under GATS (discussed above). However, the "specialist" category is defined as an employee with "specialized knowledge"; and includes "other interests and its application in international markets". Moreover, employment authorizations under NAFTA are initially issued for one year. Renewals can be obtained for a maximum of seven years for all categories of employees.

Professionals under GATS are individuals who have been educated and trained in one of the professional activities listed in GATS, and who enter a signatory country to perform professional services as part of a services contract to be performed by an enterprise in a member nation. All professions require at least a university degree. Many also require experience or licensing. For example, computer professionals require ten years' of computer experience. Another limitation of this category is that GATS professionals may enter a member country for a maximum of three months within a consecutive 12-month period. For these reasons, the professional category under GATS has limited applicability.

Professionals under NAFTA may enter Canada under the TN visa process. In general, a U.S. or Mexican citizen is eligible to enter Canada as a professional if they are members of one of the professions listed in NAFTA, and have the requisite education, training and licensing requirements listed under NAFTA. For more information on this category, please refer to our TN Visas Information Sheet.

Canada is experiencing the same shortage of software workers that most countries are experiencing. In response to this situation, the Canadian government developed a pilot project to streamline the entry of those workers whose skills are in high demand in the software industry and whose entry into the Canadian labor market would have no negative impact on Canadian job seekers and workers. In essence, the Canadian government bypassed the employment validation process by issuing a national validation letter that certifies that there are not enough Canadian citizens and permanent residents to fill certain software positions.

This pilot project expired in 1999. However, because governmental studies confirmed that the pilot project had not hurt Canadians, it was decided to make the project permanent. This permanent program is still being developed. However, in the interim, the Canadian government issued an Operations Memorandum that extended the program as the "Facilitated Processing of Employment Authorizations for Information Technology Workers".

A very significant addition to the interim project is the ability for non-Canadian employers to take advantage of the project, thereby allowing non-Canadian employers to send software consultants into Canada to work at Canadian client locations. Prior to this, only Canadian employers were allowed to rely upon the national validation letter. This is a significant addition to this project that has not been taken advantage of very much by non-Canadian employers to date. This is partly because this is a new program that may not be understood by Canadian consulates.

The Canadian government has reaffirmed the validity of the generic job descriptions for key occupations in shortage in the Information Technology sector. These job descriptions are attached to this Memorandum as Exhibit III. It is important to note that an employee must meet all of the criteria set forth in these descriptions and have experience in all of the required areas or (s)he does not qualify under the interim program. As under the original software pilot, a Canadian consular or border officer dealing with a request for an employment authorization where the applicant's job offer fits one of the job descriptions allowed under the project can consider the job offer to have been validated. However, all other considerations normally taken by a consular or border officer with regard to employment authorizations still apply.