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Canadian Non-Immigrant Employment Regulations
by Catherine Kerr

Corporate counsel and HR executives have made themselves familiar with US non-immigrant visa procedures, particularly in the H-1B and L categories. This knowledge of the US regulatory scheme is of very little use however when personnel are to be transferred to Canada where the rules are different - very different.

When foreign employees, regardless of their nationality, are required to enter Canada on a temporary basis to work either at a subsidiary, affiliate or branch or to carry out work on contract with a Canadian company, they usually require an employment authorization. Many Americans are surprised that this rule applies to them. It does.

Foreign employees without the proper paperwork are usually refused entry. Senior executives are sent home, time-sensitive contracts are breached. Worse still, employers who induce employees to violate immigration laws may find themselves charged under the Immigration Act or subject to other penalties and liabilities. Unfortunately, such inducement is rampant. Some familiar forms of inducement range from express instructions from a supervisor to misrepresent the purpose of a business trip to a subtle suggestion to "cut the red tape" at the border.

As already stated, with very few exceptions, any person who is not a Canadian citizen or permanent resident requires an employment authorization to work in Canada. There are exemptions. For example, buyers, as representatives of a business carrying on activities outside of Canada for the purpose of buying Canadian goods or services; sellers as representatives of a business carrying on activities outside of Canada coming to Canada for a period of less than 90 days for the purpose of making sales of foreign made goods but not to the public, and inter-corporate trainees for purposes of training do not require employment authorizations to enter Canada for these express and limited purposes.

Outside of these authorization exempt categories, employment authorizations are generally required.

Recently, four individuals on contract to the Canadian Federal government in Ottawa were refused entry to complete a contract until they obtained the necessary employment authorizations. If employers in the highest places are not exempt from a strict application of the rules, all other employers must take note and develop a strategic immigration strategy.

American and other foreign employers involved with personnel transfers to Canada should be aware of the following general information:

1) Almost every productive activity for which someone would be paid constitutes work. For example, after sales service constitutes work and an employment authorization is generally required.
2) Persons who seek admission as business visitors for which no employment authorization is required may be closely questioned by immigration officials. Genuine business visits where no work is performed must still be properly documented.
3) Employment authorizations will generally not be granted where there are qualified Canadians available. There are some important exceptions to this rule.
4) The length of the assignment in Canada is irrelevant. An individual who enters Canada to work for even one day usually requires an employment authorization.
5) An individual who is sent to Canada to work who is not a US citizen or green card holder, nor a citizen of some other visa exempt country, will require a visitor's visa in addition to an employment authorization.
6) There are numerous categories of employment authorizations.
7) Some types of employment authorizations by some applicants may be made at a Port of Entry. Most applications must be made through a consulate before the employee appears at a Port of Entry. Consular processing time for an employment authorization can take up to eight weeks. Human Resources Development Canada ("HRDC") processing time for a validation, when required, can take up to an additional eight weeks.

Employees with criminal records for even minor offences committed anywhere in the world may not be admissible on account of their record regardless if they are otherwise eligible. A DUI is considered a serious offence in Canada and persons convicted of a DUI are criminally inadmissible..

In addition to an employment authorization some workers also require a letter of validation that cannot be issued without the prior approval of the employment branch of Canadian immigration HRDC. The process of validation is expensive, unpredictable and often unsuccessful. Therefore it is essential to use those employment authorization categories where validation is not required. The most common categories of validation exempt authorizations are:

1) Employment authorizations issued pursuant to NAFTA
2) Employment authorizations issued pursuant to other international treaties such as GATS;
3) Employment authorizations issued to executive/management inter-corporate transfers; 4) Employment authorizations issued to certain qualified software workers to perform certain specified duties;
5) Employment authorizations issued to perform after-sales service under restricted conditions; and 6) Employment authorizations issued to foreign workers whose employment in Canada will confer significant benefit. This is only a thumbnail sketch of some of the Canadian non-immigrant employment regulations and not intended to be relied upon as legal advice. As a consequence, qualified legal advice is essential to the success of most cross-border transfers.