Free trade agreements help those who want to work in Canada, but the Trump presidency could impact Americans

On Oct. 30, 2016, Canada and the European Union signed the Comprehensive Free Trade Agreement (CETA), which, amongst other things, will make it easier for European Union citizens to work in Canada without their employers first needing to obtain labour market impact assessments (LMIA).

CETA is only the latest free trade agreement that Canada has signed.  One of the first steps that a foreign national who is interested in working in Canada should do is determine whether their home country has signed a free trade agreement with Canada. If so, they should check if the agreement encompasses their specific area of employment.

LMIA vs. free trade agreements

The main benefit of a free trade agreement encompassing one’s employment is that the person’s potential Canadian employer does not need to first obtain a positive or neutral LMIA prior to the foreign worker being able to obtain a Canadian work permit.

LMIAs can be a very cumbersome process. They generally require that an employer conduct domestic recruitment, meet prevailing wage requirements, complete numerous application forms, enter into a transition plan, and pay a $1,000 per foreign worker application fee. For many employers, obtaining LMIAs is simply too great an obstacle to employing foreign nationals in Canada.

It is much easier for employers to employ workers who are encompassed by free trade agreements. Employers must simply enter information about the proposed job offer into the Immigration, Refugees and Citizenship Canada website, pay a $230 employer compliance fee and provide a written job offer to the prospective employee.

Free trade agreements

As of writing, Canada has free trade agreements that contain immigration provisions in force with the United States, Mexico, Chile, Peru, Colombia and South Korea.

The North American Free Trade Agreement (NAFTA) is a free trade agreement between the United States, Canada and Mexico. It provides that Mexican and American citizens can obtain three-year work permits (with unlimited extensions) if they are coming to work in Canada in one of 63 skilled professions, including accountant, computer systems analyst, economist, engineer, graphic designer, management consultant, mathematician, scientific technician, pharmacist, psychologist, registered nurse and teacher.

I once represented a Canadian design company that was debating between either hiring a Mexican or a British engineer. They had assumed that it would be easier for the company to hire the British person. However, because Canada does not actually have a free trade agreement with the United Kingdom in force (yet), it was actually much easier to hire the person from Mexico. The company decided to go with to the Mexican engineer.

The Canada-Chile Free Trade Agreement is substantially the same as NAFTA in regards to foreign workers, while Canada’s free trade agreements with Colombia and Peru are far broader than NAFTA. Colombian and Peruvian professionals can work in any skilled position in Canada for three years (with no limits on extensions), except for certain health, education, social services and cultural industries. As well, a wide range of technicians can work in Canada without LMIAs, including engineering technologists, certain trades supervisors, chefs, carpenters, mechanics, etc. Indeed, for the foreseeable future, it will likely be easier for a Canadian employer to employ a Colombian or Peruvian then a citizen of any other country.

Both the Canada-Korea Free Trade Agreement (CKFTA) and CETA adopt a different approach to the entry of foreign workers. Both require that skilled foreign workers be entering Canada as either contract service suppliers or independent professionals. South Koreans can get three-year work permits, while European Union citizens can get one. When the CKFTA came into force, many South Koreans who otherwise might not have been able to extend their Post-Graduate Work Permits were able to continue to working in Canada; given the wording of CETA, it seems like the same will be true for them.

Countries under GATS

In addition to the above free trade agreements, Canada is a signatory to the General Agreement on Trades and Services (GATS). Under GATS, citizens whose country is one of the 164 members of the World Trade Organization can obtain a 90-day work permit to work in Canada as an engineer, agrologist, architect, forestry professional, geomatics professional, land surveyor, urban planner and senior computer specialist.

Upcoming agreements

Finally, Canada is also a signatory to the Trans-Pacific Partnership, although it has not yet been ratified. If Canada does, then most Australian, Chilean, Japanese and Mexican skilled workers will be able to work in Canada on up to one-year work permits, which can be renewed. Most Malaysian managers and professionals will be able to as well.

Although the United States, New Zealand and a few other countries are also signatories to the TPP, those nations decided to not facilitate the entry of Canadian workers, so Canada will not be providing those nations’ citizens any new LMIA exemptions.

The Trump effect

At this point, it is necessary to discuss the consequences of the election of Donald Trump as the next president of the United States.  If there is one thing that Trump has been consistent on during the past several decades, it is that he loathes free trade agreements. Trump has promised to not ratify the TPP, whose future is now uncertain.  He has also promised to either restrict NAFTA or to even outright withdraw the United States from it.

Perhaps the best example of how significant free trade agreements can be in an immigration context is that since the election of Donald Trump, our office has received numerous phone calls from concerned Americans currently in Canada wanting to know what will happen to their ability to continue working here if Trump fulfills this promise.

How to apply

So, how can one determine if they’re encompassed by a free trade agreement? The best way to do this is to search “IRCC Free Trade Agreements” on any search engine, and to then click on the link that says “International Mobility Program: International Free Trade Agreements.” This is an IRCC webpage that provides information on the foreign worker provisions of all free trade agreements, including documentary requirements.

Understanding the material on this website can often be the difference between a long and cumbersome process versus a straightforward one, and even becoming a foreign worker and not.


The Canada-European Union: Comprehensive Economic and Trade Agreement

On September 26, 2014, Canada and the European Uniona agreed to adopt the The Canada-European Union: Comprehensive Economic and Trade Agreement  (“CETA“), with the goal at the time being that the agreement will take effect in 2016.  While that ultimately did not happen, on October 30, 2016, Canada and the European Union signed a final version of the agreement.

Chapter 10 of CETA provides for the facilitation of the temporary entry of business persons.  The European Union’s commitments are the most ambitious that the region has ever negotiated in a free trade agreement.  For Canada, the CETA’s temporary 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“).  

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.

Continue reading “The Canada-European Union: Comprehensive Economic and Trade Agreement”


Increased Fees and Compliance in the International Mobility Program

On February 11, 2015, the Government of Canada publicized amendments to the Immigration and Refugee Protection Regulations that affected most applicants in the International Mobility Program (the “IMP“).

The IMP includes all streams of work permit applications that are exempt from the Labour Market Impact Assessment (“LMIA“) process, including workers covered by free trade agreements, people participating in exchange programs like International Experience Canada (“IEC“), provincial nominees, intra-company transferees, post-graduate work permit holders, etc.

In reviewing the changes described below, it is important to understand the distinction between a closed work permit and an open work permit. A closed work permit limits a foreign worker to a particular employer. An open work permit allows the foreign worker to work for any employer.

  • The changes consist of:
    • Requiring that employers of prospective closed work permit holders in the IMP provide information to Citizenship and Immigration Canada (“CIC“) before their prospective employees apply for work permits;
    • Requiring that employers of prospective closed work permit holders pay a $230.00 “employer compliance fee” per employee before their prospective employees apply for work permits; and
    • Introducing a new $100.00 “privilege fee” on open work permit applicants.

The Government of Canada has announced that the above changes will all take effect on February 21, 2015.

Continue reading “Increased Fees and Compliance in the International Mobility Program”


The Canada-Korea Free Trade Agreement

On September 22, 2014, Canadian Prime Minister Stephen Harper and South Korean President Park Geun-hye signed the Canada-Korea Free Trade Agreement (“CKFTA“).  Chapter 12 of the CKFTA provides for the facilitation of the temporary entry of business persons.  The CKFTA Final Agreement Summary notes that South Korea’s commitments are the most ambitious the country has ever negotiated in a free trade agreement.  For Canada, the CKFTA’s temporary entry provisions are pretty similar to those contained in the North American Free Trade Agreement (“NAFTA“), although there are differences.

The CKFTA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under the CKFTA do not require Labour Market Impact Assessments (“LMIA“).  Indeed, as the CKFTA Final Agreement Summary states:

When it comes to investing and providing services, there is no substitute for being on-site, where clients are located. Investors want to witness their investments, talk to their partners and get a feel for the local environment. Professionals, including architects, management consultants and engineers, need to contact clients on-site in order to fulfil contracts in the South Korean market.

Temporary-entry provisions in the Canada-Korea Free Trade Agreement address barriers that business persons face at the border, particularly by eliminating the need to obtain a labour market opinion and/or economic needs test. The Agreement will establish new preferential access to our respective markets and facilitate greater transparency and predictability for the movement of business persons between Canada and South Korea. The Agreement’s temporary-entry provisions complement commitments taken in the area of services, investment, goods and government procurement.

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, and the same is now true for Koreans.

Continue reading “The Canada-Korea Free Trade Agreement”