Dance Instructors, Guest Speakers, and Working in Canada Without a Work Permit

Does a professional ballet teacher require a work permit and a Labour Market Impact Assessment to give a 4 day seminar in Vancouver?  The answer is.. it depends.

Section 186(j) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

Work Without a Work Permit

186. A foreign national may work in Canada without a work permit

(j) as a guest speaker for the sole purpose of making a speech or delivering a paper at a dinner, graduation, convention or similar function, or as a commercial speaker or seminar leader delivering a seminar that lasts no longer than five days;

No Work Permit Required

In accordance with IRPR 186(j), the Citizenship and Immigration Canada (“CIC“) website explicitly states that guest speakers for specific events, including as an academic speaker at a university or college function, and commercial speakers or seminar leaders, can enter Canada to work without a work permit provided the seminar to be given by the foreign speaker does not last longer than five days.

CIC defines a seminar as “a small class at a university, etc. for discussion and research, or a short intensive course of study, or a conference of specialists.”

CIC defines commercial speakers as “people who sell tickets or registrations to people who come to hear them speak on a particular topic.” CIC further states that commercial speakers have a vested interest in the event at which they are speaking. Typically, they rent commercial space in a hotel, advertise, charge admission, deliver the event and then leave Canada.

Where the speaker is speaking to multiple groups, then as long as the duration of the speaking events is in total no more than five days, then they can enter Canada to work without a work permit.  The five days does not include travel time in the case of multiple engagements.

However, commercial speakers who are hired by a Canadian entity to provide training services, or guest instructors of a particular sport coming to teach weekend seminars, do require a work permit and possibly a Labour Market Impact Assessment.

So what about the professional ballet teacher?  The answer would depend on a very careful examination of what duties the professional ballet teacher was performing.  Did her duties constitute leading a seminar? Or did it involve teaching or training?  When did the seminar occur? On a weekday or on a weekend? There is a very fine line between the two, and in light of the CIC website these are all questions that need to be very carefully considered.  Ultimately, here, CIC did admit the individual under IRPR 186(j).  However, that does not mean that all dance instructors should assume the same, and they should consider the above questions in detail.

We recently through an Access to Information Act found a case where a Yoga Master Instructor was approved under IRPR 186(j). The reasons are below.

yoga


Intra-Company Transfers – Specialized Knowledge

On June 9, 2014, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“).  OB-575 introduced more stringent requirements to the Intra-Company Transferee (“ICT“) – Specialized Knowledge program.  Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage.

Specialized Knowledge

Previously, CIC’s Temporary Foreign Worker Manual (“FW1“) specified that ICT – Specialized Knowledge applicants must demonstrate “specialized knowledge” of a company’s product or service and its application in international markets, or an an advanced level of knowledge or expertise in the organization’s processes and procedures.

Effective immediately, OB-575 requires that ICT – Specialized Knowledge applicants demonstrate a high degree of both proprietary knowledge and advanced expertise.  Specialized knowledge is unique and uncommon, and OB-575 states that “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.”  The onus is on applicants to provide evidence that they meet these requirements.

Proprietary knowledge is company-specific expertise related to a company’s product or service.  OB-576 specifically notes that it implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although OB-575 does not mandate that “advanced proprietary knowledge” is required, it states that:

Advanced proprietary knowledge would require an applicant to demonstrate:

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

An advanced level of expertise requires specialized knowledge gained through significant and recent (defined as within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.  OB-575 notes that:

In assessing such expertise or knowledge, officers consider:

  • abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term;
  • the knowledge or expertise must be highly unusual both within the industry and within the host firm;
  • it must be of a nature such that the applicant’s proprietary knowledge is critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant’s expertise;
  • the applicant’s proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market. Example: Skill in implementing an off-the-shelf product would not, by itself, meet the standard of specialized knowledge; unless, for example, the product is new or being highly customized to the point of being a “new” product. In other words, an ICT applicant is more likely to have truly specialized knowledge if they directly contribute to the (re)development of a product, rather than to the implementation of a pre-existing product.

In what is clearly a response to the RBC/iGate fiasco, OB-575 also mandates that officers consider:

  • ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
  • given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
  • as the specialized knowledge will not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, a specialized knowledge worker must not receive specialized training by other employees such that this would lead to the displacement of Canadian workers.

The following is an example of the approval reasons of an ICT – Specialized Knowledge applicant.  I note that this was not my file, as it is not my practice to post my own cases on this blog. Rather, this case was obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36

Mandatory Wage Floor

Effective immediately, ICT – Specialized Knowledge applicants must be paid the Prevailing Wage for their position.  Non-cash per diems, including hotel and transportation, are not to be included in the calculation of the overall salary.

This is perhaps not surprising.  There has been a huge disparity in the wages being provided to Intra-Company Transferees, especially in companies transferring Indian, mainland Chinese, or Filipino workers.  In 2013 Citizenship and Immigration Canada produced a chart for internal use documenting this, as reproduced below.

A201412451_2015-04-28_07-56-04_Page_06

Free Trade Agreements

It is important to note that the above changes do not impact ICT – Specialized Knowledge applicants under Free Trade Agreements, including the North American Free Trade Agreement.  This is because such agreements, which are negotiated between Canada and other countries, specify what the requirements for ICT – Specialized Knowledge applicants are. However, in interpreting those agreements, wage remains an important indicator of specialized knowledge and should be taken into account as an important factor in an officer’s overall assessment.


Judges, Referees, and Work Permits

Does a rodeo announcer require a work permit and a Labour Market Impact Assessment to give background information on radio contestants during a rodeo?  The answer is.. it depends.

Section 186(m) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

Work Without a Work Permit

186. A foreign national may work in Canada without a work permit

(m) as a judge, referee or similar official at an international amateur sports competition, an international cultural or artistic event or competition or an animal or agricultural competition;

Amateur Sports Competitions and Events

The Citizenship and Immigration Canada (“CIC“) website states that for judges, referees and similar officials involved in an international amateur sports competition, the event should be organized by an international amateur sporting association and should be hosted by a Canadian organization.  The distinction between “organizing” and “hosting” becomes important, and supporting documents needs to reflect this.

The CIC website further states that events may include international or university games, winter or summer Olympics, etc., and that an “amateur” sports competition is generally defined as one in which the participating athletes are not paid to compete or otherwise participate in the event.  The CIC website notes that there are exceptions to this, as of course in recent decades the line between “professional” sporting events and “amateur” sporting events has become blurred.

Cultural or Artistic Competitions and Events

The CIC website states that judges or adjudicators of artistic or cultural events such as music and dance festivals are included in IRPR r. 186(m), as are judges for animal shows and agricultural competitions.

So what about the rodeo announcer? The following is what CIC’s rationale in the approval of an application under this exemption was based on the facts provided to them. I note that this was not my file, but rather a copy of an approval that I obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36-2


Intra-Company Transferees and Start-Ups

Immigration Refugees and Citizenship Canada’s (“IRCC“) International Mobility Program provides that a foreign worker may be issued a work permit without the employer needing a Labour Market Impact Assessment if the employee meets the requirements of the Intra-Company Transferees (“ICT“) program.

Although some free trade agreements contain specific requirements, the general ICT rules applicable to citizens of all countries are that ICTs must:

  • be currently employed by a multi-national company and be seeking entry to work in a parent, a subsidiary, a branch, or an affiliate of that enterprise;
  • be transferring to an enterprise that has a qualifying relationship with the enterprise in which they are currently employed, and will be undertaking employment at a legitimate and continuing establishment of that company (where 18–24 months can be used as a reasonable minimum guideline);
  • be being transferred to a position in an executive, senior managerial, or specialized knowledge capacity;
  • have been employed continuously (via payroll or by contract directly with the company), by the company that plans to transfer them outside Canada in a similar full-time position (not accumulated part-time) for at least one year in the three-year period immediately preceding the date of initial application; and
  • be coming to Canada for a temporary period only.

Applicants who have not had full-time work experience with the foreign company may still be approved based on an assessment of several factors, including the number of years of work experience with the foreign company, the similarity of the positions, the extent of any part-time positions with the foreign company, and, most importantly, whether there appears to be an abuse of the ICT provisions.

Start-Ups

There are additional requirements for multi-national corporations seeking to establish operations in Canada.  When applying for an ICT Start-Up visa, applicants must demonstrate their company’s ability to become established in Canada.

Generally, the company must have secured physical premises to house the Canadian operation.  However, where the foreign worker will be an executive or senior manager, then the company may use its counsel’s address until the foreign worker can purchase or lease a premise.

The company must show that:

  • they have realistic plans to staff the new operation;
  • they have the financial ability to commence business in Canada and compensate employees.
  • in the case where managers are being transferred, that they are large enough to support several managerial or executive functions; and
  • where the transferring entity is a specialized knowledge employee, that the work is being guided and directed by a manager.

Work permits for start-ups are typically one-year, although it is not uncommon for officers to issue work permits valid for three-years where the officer is more than convinced that the operations in Canada will be successful.

I have reproduced below two examples of where CIC approved ICT applications for start-up ventures. I note that these are not my applications, as it is not my practice to post my own cases on this blog. Rather, these examples were obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36-2

 

2)
ictstartup1

 




The Reciprocal Employment LMIA Exemption

Regulation 205(b) of the Immigration and Refugee Protection Regulations provides that a work permit may be issued to a foreign national without the employer needing to first obtain a Labour Market Impact Assessment if the the employment of the foreign national in Canada would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries.

Some obvious examples of where such work permits are frequently issued include in sports leagues such as the National Hockey League, Major League Baseball, as well as the Canada World Youth exchange.  International Experience Canada, including its most popular program – the Working Holiday Program – also falls under this Labour Market Impact Assessment, as do reciprocal employment arrangements in academia.

What is less commonly known, however, is that multinational corporations can also take advantage of this Labour Market Impact Assessment exemption.  To qualify, the employer must demonstrate that reciprocity exists.  This can be demonstrated by a work contract (if it provides evidence of reciprocity), a Human Resources Global Mobility Policy that demonstrates a balance of bilateral flow,  and/or other documents that show that Canadian foreign workers benefit from the ability to travel abroad within the company.

As the CIC website states, it is not necessary that there be exact reciprocity, but the general order of magnitude of exchanges should be reasonably similar on an annual basis.

When the entities involved have no history of conducting reciprocal exchanges with Canada, CIC will initially limit work permits to a small number of individuals and inform employers that subsequent work permits be issued only when reciprocity has been demonstrated.  Officers can consider not only the number of individuals working in Canada and abroad, but also employment duration and job level.

The following is an example of what CIC’s rationale in the approval of an application under this exemption looks like.

A201433267_2015-12-18_08-29-36

 


Refugee Claimants and Fake Documents

A challenge that arises in many refugee claims where a claimant has used fraudulent documents to travel to Canada is the balancing of the need to determine a claimant’s identity with jurisprudence that cautions against drawing negative credibility findings from the use of false documents where refugee claimants have little choice but to to use false documents to leave their country.

In Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC 105, for example, the Federal Court stated that:

… this Court has repeatedly cautioned against drawing negative conclusions based on the use of smugglers and forged documents to escape violence and persecution. Travelling on false documents or destroying travel documents is of very limited value as a determination of the claimant’s credibility. This is partly because it is not uncommon for a person fleeing persecution to follow the instructions of the person(s) organizing their escape.

Another, and perhaps the most frequently cited case on this principle, is Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587, where the Federal Court stated that:

Where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent’s instructions, it has been held to be peripheral and of very limited value as a determination of general credibility. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about his or her travel documents has little direct bearing on whether the person is indeed a refugee.

As the Federal Court recently noted in Koffi v. Canada (Citizenship and Immigration), 2016 FC 4, refugee claimants must also establish their identity.  In Koffi, while the Court found that applicants must establish their personal identity with reliable and probative evidence, their secondary evidence should not be given very little weight just because they used fraudulent documents to travel to Canada.