Deferring Removal

People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
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Summary of November 1 Changes to BC PNP Guide

On November 1, 2017 the British Columbia Provincial Nomination Program (the “BC PNP”) clarified and/or modified several aspects of its programs.

Skilled Immigration

The more significant revisions that applicants and practitioners should be aware of are:

    • The International Graduates and International Post-Graduate programs have long excluded graduates from distance education programs from being eligible.  As well, a person’s education has not been eligible for Skills Immigration Registration System (“SIRS”) ranking points if it was obtained through distance education.  The BC PNP has now defined “distance education.” It means “a program of study in which the majority of credits earned by the student toward the completion of a program were earned by completing online courses.

 

    • The BC PNP has removed the requirement that candidates meet the employment requirements for offered positions, as per the National Occupational Classification (“NOC”) website. However, the BC PNP may still refer to the NOC website to determine the minimum qualifications for an occupation.

 

    • Previously, an applicant could not have an ownership/equity take of more than 10% in the B.C. company that is offering employment.  The BC PNP has changed this requirement to state that an applicant and his/her pouse cannot have a combined ownership/equity stake of more than 10% in the B.C. company that is offering employment.

 

    • The BC PNP has re-affirmed that it does not consider bonuses, commissions, profit-sharing distributions, tips/gratuities, overtime wages, housing allowances, room and board, or other similar payments to be part of a person’s wage.

 

    • The BC PNP has completely changed the job requirements in the Express Entry International Graduate and International Graduate programs.  First, it has removed the ability of such individuals to work in NOC C/D positions if they can show a structured plan in place for career advancement. Second, the BC PNP has clarified that supervisor or management positions will only be accepted if the applicant can demonstrate through their resume that they have obtained experience which qualifies them for the position.  The BC PNP has also announced that those who are unable to demonstrate that they have obtained progressively increasing experience or responsibilities, or if their employer cannot demonstrate that the job offer is bona fide, then their application will be refused.

 

    • The BC PNP has clarified that for the purposes of determining the number of full-time employees that an employer has an individual will generally only be considered an employee if they are on the employer’s payroll, and that T4s may be required.

 

    • The BC PNP has affirmed that recruitment will only be waived for employees who are currently working for their employer if the employee has completed their studies.

 

  • People who have been nominated must inform the BC PNP if there is (a) a change in employer, title, work location or job duties, (b) a decrease in wage, (c) loss of employment, (d) change in marital status or number of dependants, (e) change in immigration status, (f) refusal of work permit or (g) change to part-time employment.

 

Entrepreneur Stream

The changes to the Entrepreneur Stream were less significant.  The BC PNP has re-affirmed that an individual will only consider registrations to establish or purchase and improve a business that contributes to the economic growth of British Columbia.  An applicant must demonstrate that they will own at least 33.3% of the business in British Columbia, and that if the proposed ownership is less then they will invest a minimum of $1 million in an equity purchase.

 


Inadequacy of State Protection

Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. In such cases, the issue turns to one of the adequacy of state protection.

Ward v. Canada

The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.  There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.

Specifically, the Supreme Court noted that:

Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection

The Court went on to note that:

Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. [My emphasis]

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection.

Ward involved a somewhat unique case where the refugee claimant’s home state conceded that it could not protect the claimant. However, for cases where such an admission was not forthcoming, the Supreme Court noted that:

Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided.  For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

In other words, there is a presumption that the state can protect its citizens. In order to rebut this presumption, a person seeking protection must show “clear and convincing evidence.”

Is there a Subjective Fear of Persecution?

Before the Refugee Protection Division can engage in a state protection analysis, it must first analyze whether a refugee claimant has a subjective fear, and what that fear is.  Thus, in Cobian Flores v. Canada (Citizenship and Immigration), 2010 FC 503, the Federal Court noted that:

[S]ave in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant’s credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.

The reason that it is necessary to analyze whether and what the subjective fear of persecution is before analyzing whether there is adequate state protection is because one has to determine exactly what the state is trying to protect an individual from in order to determine whether that protection is adequate.  As noted by the Court in Velasco Moreno v. Canada (Minister of Citizenship and Immigration), 2010 FC 993:

In my view, a negative determination of the Refugee Protection Division which turns on the issue of state protection must be scrutinized with particular care where the member chooses to make no credibility finding concerning the applicant’s allegations of a subjective fear.

However, the judge sitting in judicial review must be satisfied that the applicant’s allegations, usually in the personal information form and the transcript of the refugee hearing, were treated as true by the decision-maker.Only then can a proper review be made of the member’s state protection analysis. The state protection issue should not be a means of avoiding a clear determination

Effort vs. Results

In Galogaza v. Canada (Citizenship and Immigration), 2015 FC 407, the Federal Court noted that:

A state’s efforts, on their own, do not establish that protection was actually available to the claimant:

[E]vidence of a state’s efforts does not help answer the main question that arises in cases of state protection – that is, looking at the evidence as a whole, including the evidence relating to the state’s capacity to protect its citizens, has the claimant shown that he or she likely faces a reasonable chance of persecution in the country of origin? To answer that question, the Board has to decide whether the evidence relating to the state resources actually available to the applicants indicated that they would probably not encounter a reasonable chance of persecution if they returned to [their country of origin] (Moczo v Canada (Minister of Citizenship and Immigration), 2013 FC 734, at para 10; Beri v Canada (Minister of Citizenship and Immigration), 2013 FC 854, at para 46).

In other words, whether state protection is adequate depends on its operational effectiveness, not the best efforts or intentions of the state.  Indeed, a Refugee Protection Division decision will be unreasonable if the tribunal only focuses on best intentions.  In Mata v. Canada (Immigration, Refugees and Citizenship)for example, the Federal Court held:

While the Officer correctly states the general principle for state protection (adequate state protection) the decision does not demonstrate that the Officer actually considered the operational adequacy of state protection efforts. For example, the Officer notes that “Hungary is making serious efforts to address the problems that Roma individuals face in that country.” In absence of any analysis regarding the adequacy of those “serious efforts,” the Officer failed to apply the correct test for state protection.

 


Addressing Concerns About Marriage Fraud

(The following is an article that I wrote for Policy Options.)

On April 13, 2017, the Trudeau government fulfilled a campaign promise from the 2015 federal election by eliminating the status of conditional permanent residency from Canada’s family reunification immigration programs. From 2012 to 2017, under rules implemented by the previous Harper government, immigrants who were married or in a common-law relationship with a Canadian citizen or permanent resident for less than three years before being sponsored by their partner for permanent residency would become conditional permanent residents. The “condition” was that if they separated from their partner within two years of immigrating, they could lose their status and be removed from Canada.

The Trudeau government’s decision to end conditional permanent residency was treated with jubilation by most Canadian immigration lawyers and observers; many stakeholders remarked how callous and draconian the Conservatives were to have introduced such a measure in the first place. Indeed, the Liberal government stated when it repealed conditional permanent residency that it was taking this action to uphold its commitment to family reunification, support gender equality and combat gender violence. The implication, of course, was that the Conservatives did not care about any of these things.

Although I supported the repeal of conditional permanent residency, I believe that some of the criticism of the previous government has been unfair. Now that the dust has more or less settled, I hope to offer a more balanced summary of why the Conservatives introduced conditional permanent residency, why its repeal was a good thing and why those who are concerned about marriage fraud should have confidence in Canada’s immigration system.

Why conditional permanent residency was introduced

When the Conservatives introduced conditional permanent residency in 2012, their objective was to combat marriages of convenience. According to a regulatory impact analysis statement published in 2012, Canada’s immigration department processed approximately 46,300 applications in 2010 from people who wished to immigrate because they were the spouse or common-law partner of a Canadian. About 16 percent of these were refused, mostly because immigration officials determined that the marriages were not genuine and were instead entered into primarily for immigration purposes. As shown in tables 1 and 2, the separation rate for recently sponsored immigrants was much higher than the overall Canadian divorce rate during the years following a marriage.

Although the two tables offer a flawed comparison in that they measure different things, it is apparent that the separation rate for recent immigrants under Canada’s family reunification program was high from 2000 to 2010. This was especially so for relationships that the immigration officials had initially suspected were fake but where the prospective immigrant had won an appeal before an independent administrative tribunal. Therefore, it seems at least reasonable for the Conservatives to conclude that many people were slipping through cracks in program integrity safeguards and immigrating to Canada through fake marriages.

These statistics also matched what the Conservative government was hearing from ordinary Canadians. Jason Kenney, then Minister of Citizenship and Immigration Canada, conducted a series of town hall meetings in 2010-11 in which Canadian citizens and permanent residents lamented the treatment they had received from the immigrant partners they had sponsored. Some appeared to have been victims of organized crime. At a town hall that I observed, one woman even showed a scar from a bullet wound that she had sustained when she confronted the extended family of the person she had sponsored. I left the town hall with the clear impression that, rightly or wrongly, many Canadian sponsors were angry at an immigration system that they felt left them vulnerable to being victims of marriage fraud.

The Conservatives, in response, researched ways to strengthen the integrity of Canada’s family reunification programs. Noting that many other Western countries, including the United Kingdom and the United States, had (and still have) conditional permanent residency programs for sponsored spouses and common-law partners, they implemented something similar.

How conditional permanent residency worked

In Canada, conditional permanent residency applied from 2012 to 2017 to spouses or common-law partners who were in a relationship of three years or less with their Canadian sponsor and had no children in common with their Canadian sponsor at the time that they submitted their sponsorship application. The condition required the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for two years following receipt of their permanent resident status, regardless of how long the immigration application took to process. If they did not, they could lose their permanent resident status and be removed from Canada, unless there were significant humanitarian or compassionate reasons to let them stay.

Conditional permanent residency ceased to apply if there was evidence of abuse or neglect by the Canadian sponsor, or of a failure by the sponsor to protect their immigrant partner from abuse or neglect by the sponsor’s family members. Abuse was broadly defined and included physical, emotional and financial mistreatment.

2017 regulatory impact analysis statement reports that, from 2012 to 2017, 94,400 people were admitted as conditional permanent residents, representing approximately 52 percent of spousal and common-law partner sponsorship immigrants. During this time, 597 people requested an exception to the requirement to cohabit with their Canadian sponsor, due to abuse or neglect. Out of the 528 cases for which a decision had been made when the Trudeau government repealed the law, 78 percent of abuse exemption requests were approved.

Problems with conditional permanent residency

As soon as conditional permanent residency was implemented, it was clear that there were problems with the law, many of which were clearly unintended consequences. By far the most severe shortcoming of conditional permanent residency was that many people did not know about the abuse exception to the two-year cohabitation condition and, sadly, stayed in abusive situations to avoid deportation.

The second issue with the abuse exception was that some recent immigrants would make false allegations of abuse in order not to lose their status. In some cases the Canadian sponsors felt so terrible about ending a marriage or common-law relationship with a recent immigrant, knowing that this outcome would lead to the possible deportation of their partner, that they were even willing to participate in the fabrication. During one memorable consultation, a Canadian sponsor who wanted to amicably end his common-law relationship but did not want his partner to face removal from Canada went so far as to ask me how hard he would have to hit her in order for her to qualify for the abuse exception to conditional permanent residency. Frankly, I don’t think the Conservatives realized how far some people would go to stay in Canada, and how difficult it would be for immigration officials to adjudicate whether there was abuse.

Finally, the problem with conditional permanent residency that impacted the largest number of people was that it applied to those who were already inside Canada and who could have obtained permanent residency through economic immigration programs, but instead chose Canada’s family reunification stream because of faster processing times and the ability to work on open-ended work permits during processing.

For example, an international graduate who had been living here with her girlfriend for one year and working for a Canadian employer might have qualified under both the economic and the family reunification programs. From 2012 to 2015, however, the Conservatives frequently imposed application caps on certain economic immigration programs, and in some cases they even terminated whole classes of applications that were in processing. So it was not uncommon for many individuals to submit immigration applications under both economic and family reunification programs. Applicants who succeeded in being admitted through family reunification were then subject to conditional permanent residency, even though they had been working and living in Canada well before they had applied to immigrate. Unfortunately, the rules left some people trapped in relationships that they did not want to stay in. Such outcomes made it clear that the solution to marriage fraud should not be to impose hardship on all in order to catch a few.

Conclusion

While the repeal of conditional permanent residency might have caused some to think that the Liberals are soft on marriage fraud, it is important to note that the Trudeau government is maintaining two other significant measures that the Harper government introduced to address the issue.

The first Conservative reform that remains in place is the requirement that applicants must show that their marriage is genuine at the time of the visa officer’s assessment and that it was not entered into primarily for an immigration purpose. Before 2010, prospective immigrants had to prove only one or the other.

Second, in March 2012 the Conservatives introduced measures prohibiting immigrants who had been sponsored by a Canadian spouse or common-law partner from sponsoring a new spouse or common-law partner within five years after they immigrated. This change has prevented people from marrying a Canadian, immigrating to Canada, quickly divorcing the Canadian, travelling abroad, marrying someone else and then sponsoring that person to immigrate.

Given that both these reforms remain in effect, the Trudeau government’s approach to combatting marriage fraud can perhaps best be described as “three steps forward, one step back.” Supporters of both parties should have confidence that Canada currently has a system to combat marriage fraud that, while not perfect, generally works.

 


The Inside Canada vs. Outside Canada Sponsorship Process

One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process.  The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process.  This is not true.  However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below.

 

Inside-Canada Process

Outside-Canada Process

The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must reside together in Canada. The spouse/common-law partner do not have to reside together in Canada.  As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership.
The applicant must live with the spouse/common-law partner inside Canada during the duration of processing. The applicant can live with the spouse/common-law partner inside Canada during the duration of processing, but does not have to.
The immigration paperwork is sent to a processing center inside Canada, and remains in Canada. The immigration paperwork is sent to a processing center inside Canada, and it then may be transferred to a visa post outside of Canada.
If the applicant has valid temporary resident status in Canada, and submits an application to extend that status inside Canada with the permanent residence application, then the applicant will have implied status during the processing of the permanent residence application, provided he/she does not leave Canada. If the applicant has valid temporary resident status in Canada, he/she must maintain his/her status. The process is separate from the permanent residence application, and there is no implied status for the duration of processing.
Immigration, Refugees and Citizenship Canada will process the application even if the applicant does not have valid temporary resident status in Canada.  If an individual has an application in processing, and is detained by the Canada Border Services Agency for being without status, then the applicant will generally benefit from a 60 day deferral period, and Citizenship and Immigration Canada will endeavour to process the permanent residence application within 60 days. Immigration, Refugees and Citizenship Canada will not process the application if the applicant does not have valid temporary resident status in Canada.
The current processing time is 12 months.  The Applicant will receive “first-stage approval” at around the half-way point if it is determined that the spouse/common-law partnership is bona fide, and the applicant will be entitled to an open work permit. Processing times vary depending on the visa post, and range from 4 months to 38 months.   There is no first-stage approval for the issuance of open work permits.
There is currently a pilot project in place to provide work permits to applicants who have valid temporary resident status after 2ish months of processing. The permanent residence application is completely separate from any ability to work in Canada.
There is no appeal right to the Immigration Appeal Division.  The only recourse is an application to Federal Court for judicial review. There is a general appeal right to the Immigration Appeal Division, except for refusals based on serious criminality, terrorism, national security, espionage, and similar serious matters.  The only recourse in those situations is an application to Federal Court for judicial review.
If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, then the permanent residence application will be refused, and the applicant must start over from outside Canada. If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, this will generally not impact the permanent residence application.

Can Refugees be Extradited?

As the legal community continues to debate whether Bill C-49 is constitutional, the Supreme Court of Canada has indirectly touched upon the issue in Németh v. Canada, a decision about whether a refugee can be extradited to his/her country of origin to face charges. The answer is yes.
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The Canada-European Comprehensive Economic and Trade Agreement

On September 21, 2017 the immigration provisions of the Canada-European Comprehensive Economic and Trade Agreement (“CETA”) came into effect.

Chapter 10 of CETA facilitates the temporary entry of business persons.  The European Union’s commitments are the most ambitious that the European Union has ever negotiated in a free trade agreement.  For Canada, CETA’s temporary entry provisions contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences.

CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“).  This means that companies do not have to first test the Canadian labour market before hiring a foreign worker, nor do they have to commit to labour market benefits.

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA.  When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union.

If you are a Canadian business seeking to employ a European Union national, or you are a European national seeking to work in Canada, the following are things that you should know about CETA.

1. CETA Contractual Service Providers will not need a LMIA to work in Canada for a 12-month period every 24 months.  

Contractual service providers are people employed by a European Union enterprise that does not have an establishment in Canada and that has signed a contract to supply a service to a consumer in Canada that requires the presence on a temporary basis of the European company’s employee in Canada.  To qualify for a LMIA exemption, the contractual service supplier must:

  • be a citizen of a European Union member state;
  • be engaged in the supply of a service on a temporary basis as an employee of a European Union enterprise which has obtained a service contract in Canada;
  • have been employed by the European Union enterprise for at least the year immediately preceding the date of entry into Canada;
  • generally possess a university degree or a qualification demonstrating knowledge of an equivalent level;
  • generally possess professional qualifications where such qualifications are required to exercise an activity pursuant to the law, regulations or other requirements of Canada, where the service is supplied; and
  • possess three years of professional experience in the sector of activity that is the subject of the contract.

The CETA Professionals Contractual Services Suppliers category applies to all occupations which Canada classifies as professional or managerial in the following thirty-seven sectors:

  1. Legal advisory services in respect of international public law and foreign law (i.e. non-EU law)
  2. Accounting and bookkeeping services
  3. Taxation advisory services
  4. Architectural services and urban planning and landscape architecture services
  5. Engineering services and integrated engineering services
  6. Medical and dental services
  7. Veterinary services
  8. Midwives services
  9. Services provided by nurses, physiotherapists and paramedical personnel
  10. Computer and related services
  11. Research and development services
  12. Advertising services
  13. Market research and opinion polling
  14. Management consulting services
  15. Services related to management consulting
  16. Technical testing and analysis services
  17. Related scientific and technical consulting services
  18. Mining
  19. Maintenance and repair of vessels
  20. Maintenance and repair of rail transport equipment
  21. Maintenance and repair of motor vehicles, motorcycles, snowmobiles and road transport equipment
  22. Maintenance and repair of aircrafts and parts thereof
  23. Maintenance and repair of metal products, of (non-office) machinery, of (non-transport and non-office) equipment and of personal and household goods
  24. Translation and interpretation services
  25. Telecommunication services
  26. Postal and courier services
  27. Construction and related engineering services
  28. Site investigation work
  29. Higher education services
  30. Services Relating to Agriculture, Hunting and Forestry
  31. Environmental services
  32. Insurance and insurance related services advisory and consulting services
  33. Other financial services advisory and consulting services
  34. Transport advisory and consulting services
  35. Travel agencies and tour operators’ services
  36. Tourist guides services
  37. Manufacturing advisory and consulting services

2. CETA Independent Professionals will not need a LMIA to work in Canada for a 12-month period every 24 months. 

Independent Professionals are self-employed individuals in the European Union who have contracts in Canada.  To be eligible to work in Canada as a CETA Independent Professional, a European Union citizen must:

  • be engaged in the supply of a service on a temporary basis as a self-employed person in Canada;
  • have at least six years professional experience in the sector of activity which is the subject of the contract;
  • possess a university degree or a qualification demonstrating knowledge of an equivalent level; and
  • possess professional qualifications where this is required to exercise an activity pursuant to the law, regulations or other requirements of the Party, where the service is supplied.

The CETA Professionals Independent Professionals category applies to all occupations listed which Canada classifies as managerial or professional in the following sectors:

  1. Legal advisory services in respect of international public law and foreign law (i.e. non-EU law)
  2. Architectural services and urban planning and landscape architecture services
  3. Engineering services and integrated engineering services
  4. Computer and related services
  5. Research and development services
  6. Market research and opinion polling
  7. Management consulting services
  8. Services related to management consulting
  9. Mining
  10. Translation and interpretation services
  11. Telecommunication services
  12. Postal and courier services
  13. Higher education services
  14. Insurance related services advisory and consulting services
  15. Other financial services advisory and consulting services
  16. Transport advisory and consulting services
  17. Manufacturing advisory and consulting services

Importantly, the CETA Independent Professionals category does not include the following sectors:

  • medical and dental services
  • veterinary services
  • midwifery services
  • services provided by nurses, physiotherapists and paramedical personnel
  • higher education services

3. CETA’s Intra-Corporate Transferee provisions will allow a multi-national company to transfer Senior Personnel, Specialists and Graduate Trainees to Canada

CETA’s Intra-Corporate Transferee (“ICT”) provisions are similar to Canada existing Intra-Company Transferee provisions, with the key distinction being that Graduate Trainees qualify as ICTs under CETA.

Natural persons who have been employed by an enterprise in the European Union, or who have been partners in it for at least one year, can be transferred to a subsidiary, branch, or parent company in Canada.  To qualify, the seconded employee must also be either a Senior Personnel, a Specialist, or a Graduate Trainee.

Senior Personnel will be allowed work permits valid for the lesser of 3 years, or the length of the contract, with a possible extension of up to 18 months. To qualify, a seconded employee must:

  • work in a senior position within an enterprise and primarily direct the management of the enterprise, a department or sub-division thereof;
  • exercise wide latitude in decision making, which may include having the authority personally to recruit and dismiss or taking other personnel actions (such as promotion or leave authorisations), and (i) receive only general supervision or direction principally from higher level executives, the board of directors and/or stockholders of the business or their equivalent, or (ii) supervise and control the work of other supervisory, professional or managerial employees and exercise discretionary authority over day-to-day operations.

Specialists will be allowed work permits valid for the lesser of 3 years, or the length of the contract, with a possible extension of up to 18 months.  To qualify, a seconded employee must:

  • possess uncommon knowledge of the enterprise’s products or services and its application in international markets; or
  • possess an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research equipment, techniques or management.

Graduate trainees will be allowed work permits valid for the lesser of 1 year or the length of the contract, whichever is shorter.  To qualify, aseconded employee must:

  • possess a university degree; and
  • be temporarily transferred to Canada for career development purposes, or to obtain training in business techniques or methods.

4. CETA will allow European investors to obtain LMIA exempt work permits to start their business. 

European investors who are staying for an extended period in Canada can also obtain LMIA exempt work permits.  Investors are defined as those who:

  • will establish, develop, or administer the operation of an investment in a capacity that is supervisory or executive;
  • are the investor; and
  • are employed by an enterprise that has committed or is in the process of committing a substantial amount of capital.

A CETA investor work permit will be issued for one year, with possible renewals.

5. Business Visitors will Continue to be able to Travel to Canada

Under CETA, there are two categories of business visitors: short-term business visitors and business visitors for investment purposes.  Because CETA business visitors are in some cases more narrowly defined than general business visitors under current Canadian immigration law, officers will apply whichever type of business visitor provision is broader.

Specific examples of CETA short-term business visitors include those conducting independent research and design, those conducting marketing research, those engaged in most types of international sales and purchasing, tourism personnel and translators. It is important to note that the maximum length of stay of short term business visitors under CETA shall be 90 days in any six-month period.

A business visitor for investment purposes is an employee in a managerial or specialist position who is responsible for setting up an enterprise but who does not engage in direct transactions with the general public and will not receive direct or indirect remuneration from a Canadian source.

The above is just a summary of very complex free trade agreement provisions, and we strongly recommended that prospective applicants under CETA consult the IRCC website or a professional to see whether CETA encompasses them.

More information about CETA can be found here.