Sarah McInnes
Sarah McInnes, Lawyer, McInnes Cooper
Meghan Felt
Meghan Felt, Lawyer, McInnes Cooper
 

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:

  • Both the IRPA and NAFTA specifically exclude “hands-on” installation and work generally performed by construction or building trades, such as electricians and pipe fitters, from the “business visitor” permitted activities. But precisely what constitutes “after-sales” or “hands-on” work can be unclear, leaving room for the individual immigration border officers to apply their discretion on a case-by-case basis, and ultimately uncertainty.
  • Entry to repair or service specialized equipment purchased or leased in the U.S. is a qualifying activity under both the IRPA and NAFTA – but only if the service is for newly purchased or leased equipment/software, or performed as part of the original or extended sales/lease agreement, warranty or service contract. But whether the services were intended to be performed as part of the original agreement is often unclear. And if the work to be performed isn’t covered under a warranty or there’s no service contract, a work permit is required for entry.
  • The “after-sales” category also covers people entering Canada to supervise the installation or dismantling of specialized machinery purchased or leased outside Canada, and those providing training services respecting such equipment. Under the Guidelines, where a Canadian employer has directly contracted for services from a foreign company, the foreign company’s worker requires a work permit: although the worker’s principal place of business and primary source of remuneration remain outside of Canada, their foreign employer receives payment for the service the worker is providing. Therefore, that worker’s compensation is considered to derive from a Canadian source, the worker has entered the Canadian labour market, the “business visitor” criteria aren’t met and the activities aren’t work permit exempt.

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:

  • A letter of invitation from the Canadian entity, if applicable, referencing the permitted activities and indicating how the businessperson’s activities align with these.
  • A support letter from the foreign employer stating that the businessperson’s principal place of business and remuneration remain outside of Canada, and that the profits resulting from the business activities will accumulate outside of Canada.
  • If the Canadian company and foreign company are affiliates, a corporate organizational chart and proof of affiliation.
  • If entering as after sales service personnel, proof that the software/equipment is “newly purchased/leased” or the original sales contract/purchase order indicating that the services to be preformed were part of the original or extended sales/lease agreement, warranty or service contract.
  • An Electronic Travel Authorization (eTA), unless you are a U.S. citizen or a foreign national with a valid temporary resident visa; visa-exempt foreign nationals, including those with a work permit, require an eTA.

To discuss this or any other legal issue, contact any member of McInnes Cooper’s Immigration Law Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2016.  All rights reserved.

About the authors:

Meghan Felt is a Labour and Employment Lawyer at McInnes Cooper. With a particular focus on Immigration Law, Meghan has represented and advised countless clients with Canadian immigration issues, including corporations seeking labour market opinions and work permits to hire foreign workers. You can reach Meghan at meghan.felt@mcinnescooper.com.

Sarah McInnes is an Immigration and Corporate and Business Lawyer at McInnes Cooper. She assists a wide range of clients with a variety of Canadian immigration issues, including advising corporations seeking labour market impact assessments and work permits to hire foreign workers. You can reach Sarah at sarah.mcinnes@mcinnescooper.com.