Canadian Business Visitor Guidelines

I.

Introduction

The following document is intended to provide an overview for business professionals seeking to enter Canada on a facilitated and short-term basis to engage in business or trade activities. Business Visitors are defined in s. 187(1) of the Immigration and Refugee Protection Regulations (IRPR) as foreign nationals who are entering Canada to conduct international business activities. It is crucial that the individual will not engage in employment that will provide services, create competition within the Canadian labour market, or remove opportunities from it, as such activities require Work Permits. As the nature of business transactions become more complicated and the requirements for Business Visitors remain narrow, the following document will provide information regarding the qualifications of Business Visitors that must be considered before entering Canada. This guide will also address other concerns, such as Temporary Resident Visas and admissibility issues. However in light of the diversity and complexity of cross-border business transactions, this document merely serves as a guideline and the merits of whether the requirements of a Business Visitor category have been met in any instance must be assessed on an individual basis prior to the foreign national travelling to a Canadian port of entry. II.

Prerequisites: Temporary Resident Visas

The first consideration, before determining whether an individual is a Business Visitor, is whether he/she needs a Temporary Resident Visa (TRV).1 If the individual’s citizenship is from a country that requires a TRV before entering Canada, he/she must submit an application for a TRV abroad at a Canadian Consulate or High Commission, in conjunction with any documents that must be submitted to meet the Business Visitor requirements.2

1

A list of countries in which a TRV is required can be found at the following website: http://www.cic.gc.ca/english/visit/visas.asp. 2 A Business Visitor who requires a TRV to enter Canada will be issued a WX1 visa.

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Canadian Business Visitor Guidelines

TRV Exempt Countries If an individual is a citizen of a country that does not require a TRV to enter Canada, he or she can apply at a port of entry as a Business Visitor or to obtain a Work Permit. Countries that are exempt from obtaining a TRV include: the United States, United Kingdom, France, Italy and Spain.3 Visitor vs. Work Permit Although this guide is for Business Visitors, it is important to understand the following regarding Visitors and Work Permits: 

A Visitor is not automatically allowed to conduct activities that would typically require a Work Permit, but they may engage in Business Visitor activities for a limited period of time.



There are 21 types of individuals who only need a TRV and are permitted to work in Canada without a Work Permit, such as civil aviation inspectors, guest speakers (to present a speech or a paper, conduct a seminar, etc), and convention organizers.

In a majority of instances, foreign nationals seeking to enter Canada for business purposes will require Work Permits. In circumstances where international instruments such as NAFTA do not cover the basis for the transfer of foreign nationals to Canada, Canadian employers will have to advertise in advance and demonstrate that their local recruitment efforts are unsuccessful before a Work Permit application is filed with a Canadian visa post. Moreover, all job offers must meet the corresponding prevailing wage rates for the occupations in the region where the job is located.

3

A list of countries in which a TRV is not required can be found at the following website: http://www.cic.gc.ca/english/visit/visas.asp#exemptions

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Canadian Business Visitor Guidelines

III.

Requirements for Business Visitors

Some of the purposes for entering Canada as Business Visitors include pre-contractual meetings as well as providing or receiving training. The general requirements for Business Visitors are as follows: 

There must be no intent to enter the Canadian labour market, that is, no gainful employment in Canada.



The activity of the foreign worker must be international in scope, that is, there is the presumption of an underlying cross-border business activity, e.g. after sales service;



There is the presumption of a foreign employer: o

The primary source of the worker’s remuneration remains outside Canada

o

The principal place of the worker’s employer is located outside Canada

o

The accrual of profits of the worker’s employer is located outside Canada.

In addition to the above, an individual applying for entry as a Business Visitor must also show: o

He/she will stay for a limited duration of time;

o

The production of goods/services from the individual providing or receiving training is incidental to the Canadian entity’s business;

o

He/she can provide documents that support his/her application, including but not limited to: 

Proof of remuneration outside of Canada;



Copies of the after-sales agreement (if applicable);



Letters from the Canadian parent/subsidiary outlining the purpose of the visit;

 o

Promotional/training materials.

He/she meets Canada’s basic entry requirements, such as: 

Has a valid travel document, such as a passport that is valid for a minimum of 6 months;



Has a return airline ticket;



Sufficient funds for the individual’s visit and return trip;



Will depart Canada upon the expiry of his/her status;

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Canadian Business Visitor Guidelines



Has no admissibility concerns with regard to criminality, security or health concerns.

The key consideration in determining whether an individual is a Business Visitor is whether he/she will become a part of the Canadian labour market as a result of his/her services/activities.

When the service/activity is one that would typically warrant financial

compensation, or will increase a Canadian business’ worth, the individual must obtain a Work Permit because he/she will probably be in competition with the Canadian labour market. Immigration Canada will be evaluating potential Business Visitors to check whether the financial compensation will be from a foreign source, and whether the accumulation of profits will be foreign as well. Since the purpose of having Business Visitors is to increase international business in Canada, the legislation will only permit incidental profits as a result of a Business Visitor training Canadian employees. Business Visitors: Training All training activities relating to clients of Canadian businesses are only permissible where there is a pre-existing contract and the client is the seller/purchaser of the foreign goods and services to be used within/outside of Canada.

Where there is no valid after-sales

agreement for which invoicing the services is foreseen, any direct or indirect invoicing of clients for the training services would require the individual to obtain a Work Permit, as the activities would be deemed as producing income for the company and thus beyond the scope of permissible activities for Business Visitors. Business Visitors are allowed to provide or receive training in the following prescribed conditions: o

Provide training to a Canadian parent or

subsidiary of the corporation that

employs the Business Visitor outside of Canada o

Receive training related to goods and services that have been purchased from a Canadian parent or subsidiary;

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Canadian Business Visitor Guidelines

o

Receive training from Canadian parent or subsidiary of the corporation that employs the Business Visitor outside of Canada;

For the purposes of Business Visitors, the following definitions of parent and subsidiary are applicable: o

Parent: a firm, corporation or other legal entity that has subsidiaries;

o

Subsidiary:

a firm, corporation or other legal entity in which a parent either

directly or indirectly owns half or more of the entity and controls the entity; or 

owns, directly/indirectly, half of a 50/50 joint venture and has equal control and/or veto power of the entity;



owns, directly/indirectly, less than half of the entity but controls the entity;

When evaluating the intended training activities, it is significant to consider whether there is a valid purchase contract that is currently in effect with the Canadian parent or subsidiary that allows the training of individuals in Canada. If such a contract is present, the individual can come to Canada as a Business Visitor.

However, the contract will outline the

parameters of the training, as any training outside of the scope of the contract will require the individual to obtain a Work Permit. For instance, if the contract states that training can only be provided to a specific department or location in the Canadian entity, a Work Permit would be needed for any training outside of that department or at a different location. The training given or received by the foreign national at the Canadian parent or subsidiary’s facilities must be separate from where the business operates and produces goods/services in Canada, and limited to the employees of the Canadian entity. A Work Permit is required if the individual is going to train any clients that are not listed in the original sales contract. It is critical that the client in Canada does not provide financial compensation to either the Canadian or foreign parent/subsidiary for the activities conducted by the Business Visitor.

Doing so would constitute payment from a Canadian

source, in which case the individual must obtain a Work Permit.

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Canadian Business Visitor Guidelines

The following list of activities are permitted for Business Visitors, but must not be paid for by Canadian clients: 

Education and training at the Canadian entity’s facility and only to its own employees;



Obtaining orders for foreign goods or services that cannot be delivered at the same time;



Participating in negotiations;



Tracking the requirements for an offshore development or maintenance project, as long as this activity is performed prior to the finalization of a contract.



Attending corporate business meetings (including as a member of a board of directors), conferences, or conventions;



Supervising the installation, repair or servicing of equipment as part of an existing purchase contract, as long as the equipment was manufactured and purchased outside of Canada, and the contract includes a provision for the repair/service (can include software under some circumstances);

Business Visitors: After-Sales Services Business Visitors may enter Canada to perform activities that are derived from warranty and after-sales contracts, as long as the contract is part of an original sale or lease agreement, and is an extension of the original contract. The work must also be performed during the validity of the warranty/after-sales sections of the contract, and activity must relate to products that are manufactured or bought/leased abroad in commercial and industrial environments. The contracts should state the categories of service that will be performed by the employee. The employee must bring a copy of the contract with him/her to present to Canadian Immigration officials upon entry to Canada. Although sensitive and confidential information (ie. pricing) may be omitted, the complete service and warranty section of the contract must be with the employee.

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Canadian Business Visitor Guidelines



Specialized Knowledge

The employee should be ready to show that he/she has the specialized knowledge required for the after-sales service. Specialized knowledge is found where the individual has: 

A relevant postsecondary degree or diploma, or a license, certificate or accreditation issued by an institution that demonstrates a significant level of skill/knowledge;



Required skills and/or advanced knowledge level to perform the activity in Canada, involving an individual’s familiarity with certain products or services;



Specialized training that is necessary to provide the service and indicates expertise that is beyond hands-on building and construction work (either from in-class or through the employer);



Installation

An individual may come to Canada as a Business Visitor when a sales contract or purchase order is for a software upgrade to use a product that was previously sold, if the contract states that the individual will either: 

Supervise the installation;



Configure or provide training regarding the upgraded software.

It is important to note that if the upgrade is not in the original warranty/service contract, the individual will need to obtain a Work Permit.

After-sales sections exclude software

installation (considered “hands-on”) and activities that do not constitute warranty/services. Business Visitors may only supervise or train employees who perform an installation and may only show procedures where needed during such training. 

Third Party

The After-sales sections do not apply to service contracts that are created with a third party after the sales or lease contract has been signed, unless the original sales contract states the third party’s name and their services. If a foreign manufacturer has a sales transaction with a Canadian parent/subsidiary or third-party Canadian distributor that results in the sale or lease of the products to an end-user, the installation or warranty/service from the foreign

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Canadian Business Visitor Guidelines

manufacturer may be required if the Canadian entity cannot provide it. In this scenario, an individual from the foreign manufacturer would be able to enter Canada as a Business Visitor to provide the services needed. 

Lease Arrangements

The presence of a sales transaction is an integral element of an original cross-border transaction conducted under a lease arrangement.

This contract falls within a Business

Visitor’s parameters if the equipment continues to be owned by the initial buyer, and the sales, warranty and/or service contract remains effective. A company’s legal department should be aware of the above requirements for sales, purchase, and warranty/service contracts, as they may want to take them into consideration when drafting such agreements. IV. 

Business Visitors: Other Factors to Consider Remuneration

A Business Visitor should typically be remunerated by the foreign employer, and his/her activities should be intended to benefit the foreign employer. However, receiving payment from an international non-Canadian source does not necessarily mean an individual may enter Canada.

An activity that is conducted for the benefit of a Canadian entity is

considered work, even if the individual does the activity without pay, or if the payment is from a foreign source. 

Duration of Stay

A Business Visitor is typically permitted to remain in Canada for a range from a few days to a few weeks.

The Canadian Immigration Officer will take into account how long the

individual intends to stay, the type activity/service that will be performed, and how often the individual has previously entered Canada.

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Canadian Business Visitor Guidelines

Where a Canadian company is engaged in contractual negotiations with a client situated in Canada, it is important that any Business Visitors entering Canada on behalf of the Canadian company leave prior to the execution of the contract. 

Negotiations

Some of the purposes for entering Canada as Business Visitors include pre-contractual meetings as well as providing or receiving training. Where a Canadian company is engaged in contractual negotiations with a client situated in Canada, it is important that any Business Visitors entering Canada on behalf of the Canadian company leave prior to the execution of the contract. V.

Business Visitors: Activities not Permitted

As stated above, Business Visitors may not perform an activity that will be paid for in Canada, or that will become a source of employment in the Canadian labour market. Business visitors are not permitted to give sales or customer service for products or services created in Canada. They are also not allowed to install systems or software hands-on, or train outside of what is outlined in the purchase contract. An individual must obtain a Work Permit if the Canadian parent or subsidiary has contracted directly for services from its sister or affiliate abroad.

Lastly, an individual cannot pre-emptively enter Canada as a

Business Visitor and work while his/her Work Permit application is in process. A common misconception is that if the service provider is not directly receiving remuneration from the Canadian parent/subsidiary, then it is suitable to apply as a Business Visitor.

However, such an arrangement does not overcome the requirements of the

program as the foreign based company and employee will still be receiving payment for services that are being provided while in Canada and thus it is deemed as work from a Canadian source.

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Canadian Business Visitor Guidelines

VI.

Temporary Work Compliance Requirements

On April 1, 2011 Citizenship and Immigration Canada (CIC) announced new Regulations that affect employers and foreign workers.

Though Business Visitors are not working in

Canada, the ability of Canadian businesses to comply with the new compliance regime can affect the entry of business visitors into Canada. Substantially the Same Regime Moving forward, CIC and Service Canada (the Federal department responsible for conducting labour market assessments) will have the mandate to determine whether in the two years prior to a foreign worker seeking entry into Canada, the employer has had foreign workers employed in positions that are Substantially the Same (STS) as what was specified in their offers of employment. The wages, working conditions, and occupation must be STS. An examination of a variety of documents including T4s may be used to see if employees actually worked in the jobs and under the conditions intended when the Labour Market Opinion (LMO) or Work Permit was issued. For instance, if an employer wishes to increase (by 2% or more) a foreign worker’s salary or decrease it by any amount, they must provide Service Canada with a letter justifying the change and seek clarification as to whether another LMO is necessary before any change is implemented. Generally, Service Canada and CIC will highly scrutinize any reduction in wages.

Any proposed reduction in compensation must first be assessed based on the

prevailing wage for the occupation regionally, as the employer cannot offer the foreign national salary beyond the corresponding figure. Further, if a wage reduction has already been implemented, the employer must pay back the difference to the employee in order to remain in compliance with the Substantially the Same (STS) provisions. It is to be noted that Immigration Officers will now assess whether a job is “genuine” on an expanded parameter. This involves examining the employer’s past compliance with employment and recruitment laws, whether the employer can reasonably meet the terms of

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Canadian Business Visitor Guidelines

the job offer, whether the employer is “actively engaged” in the business, and if the job offer is congruent with the employer’s reasonable employment needs. The consequences of failing to comply with the STS regime may result in: 1) The employer being prohibited from obtaining a new Work Permit or a renewal of a Work Permit for any foreign national for a period of two years; 2) The employer being placed on an “ineligible employers list”, which is published on a website for the public to view; 3) An employee losing their status by extending or entering into employment contracts with an ineligible employer; 4) An employer being found to have violated employment laws (due to the information sharing program) and thus, may suffer other consequences that transcend these immigration issues. Violating the Immigration and Refugee Protection Act Should Canadian Immigration authorities discover that a Canadian entity has hired a foreign national without the required Work Permit or Business Visitor Visa, the company could be violating Canada’s Immigration legislation, the Immigration and Refugee Protection Act (“IRPA”).

According to the Act at section 124(2), even if the company failed to exercise

due diligence to determine whether the foreign national needed authorization to work in Canada, it is presumed that the company knew it was required. Repercussions: Penalties The penalties for violating s.124(1)(c) of the IRPA are as follows (note that figures of authority in the company, such as the directors or officers, may be imprisoned): 

Summary conviction:

maximum fine of up to $10,000.00 and/or six months of

imprisonment; 

Indictable conviction:

maximum fine of up to $50,000.00 and/or two years of

imprisonment.

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Canadian Business Visitor Guidelines

Repercussions: Admissibility A foreign national who is discovered performing unauthorized work in Canada must undergo an admissibility hearing through Immigration Canada. At the hearing, the adjudicator will decide if the foreign national falls within s.41(a) of the IRPA for being inadmissible due to non-compliance with the Act. If the foreign national is in fact inadmissible, he/she may be ordered to leave Canada through a document called an “exclusion order”. The foreign national will require permission from the Minister of Citizenship and Immigration if he or she wants to re-enter Canada within one year of leaving. VII.

Business Visitors: General Admissibility Concerns

Criminality Immigration Canada carefully screens foreign nationals seeking to enter Canada who have been charged or convicted of a criminal offence outside of Canada.

It is vital that the

foreign employer be aware of the individual’s criminal history, as it may be a bar to his/her entry into Canada. While criminal justice systems in countries outside of Canada operate differently from the Canadian system and will rank various types of charges and/or convictions, Canadian Immigration only takes into account what the Canadian equivalent of the offence would be. To illustrate this point, the United States has two types of offences: misdemeanors and felonies.

A charge or conviction of Driving Under the Influence may be considered a

misdemeanor in certain states, but Canadian Immigration authorities will only consider the Canadian equivalent to the same offence (ie. indictable and/or summary). Misrepresentation The employer should not only be aware of the foreign national’s criminal history, it is also important for the foreign national to be forthright and honest when completing application forms.

If the individual is found working without authorization and the individual had

indicated on a form that he/she would not require a Work Permit despite his/her intention to work in Canada, the foreign worker will be deemed inadmissible pursuant to s. 40(1)(a) of

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Canadian Business Visitor Guidelines

the IRPA. Withholding information, such as failing to disclose one’s criminal history, is also considered misrepresentation. If the foreign national is found inadmissible, an Immigration Officer will issue an exclusion order, and the foreign worker will have to leave Canada for at least two years.

If the

foreign national wants to re-enter Canada within two years, he/she will need to apply for permission to return to Canada from the Minister if Citizenship and Immigration.

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