What to See About CETA Re: Entry of Temporary Business Persons

On 21 September 2017, the much anticipated Comprehensive Economic and Trade Agreement (“CETA”) came into effect. Along with the new trade agreement, Chapter 10 sets out the rules around temporary entry of business persons.  As complex as the CETA negotiations were themselves, the agreement’s reciprocity agreement around business persons is similarly detailed and complicated.

For the purposes of this piece (given we’re discussing Canadian immigration), we will look at the Canadian side. Those looking to enter the European countries should refer to Annex 10-A carefully depending on the country entry is being sought in, the category, and the occupation.

The Basics

I would highlight encourage you all to read my colleague Steven Meurrens blog post on the topic where he looks at the five things you should know about CETA – going through the (1) Intra-corporate transfers (including graduate trainees), (2) investors, (3)  contract service providers, (4) independent professionals, and business (5) business visitors categories.

As a broader summary, CETA will allow several European business persons the ability to enter Canada without the need to obtain Labour Market Impact Assessments (“LMIAs”) for the purposes of carrying out their business purposes. Labour Market Impact Assessments have historically served as a deterrence for Canadian business – due to their cost (both in terms of application and compliance) and as well for the onerous nature of advertising requirements and proving that a Canadian could not be hired for the same position and in many cases preparing either voluminous transition plans (in the case of high wage employees) or advertising to historically disadvantaged groups (in the case of low wage).

This is specifically true where the worker has no intention of applying for permanent residence and the employment/projects are more limited in nature or short-term in duration.

CETA provides that alternate for many of these business persons to obtain a work permit in Canada for a short-term purposes.

  • Eligible Contract service professionals and independent [professionals will be able to work for 12-months out of every 24 month period  on a work permit.
  • Eligible Intra-Corporate Transferees could be given terms of up to the lesser of 3 years or their length of their contract with extensions up to 18 months. Graduate trainees can receive one year work permits but are not eligible for an extension.
  • Investors can be issued 1 year work permits with possible renewals (consistent with the provisions of NAFTA).
  • Business visitors will be able to come to Canada to perform a range of activities extending beyond the scope of the legislative ability to work without a work permit (R.186 and R.187 IRPR)

Three Things You Don’t Want to Miss When Considering CETA

1. IRCC has provided an excellent resource guide on “how to extend CETA permits” – and the requirements are more substantial than they were under NAFTA.

Per IRCC:

Examples of acceptable documentation to support an extension

  • A service contract extension justification from the offering enterprise
  • Updated business plans
  • An offer for a new contract
  • Feasibility studies and marketing plans

Additional questions to help officers determine eligibility

  • Consider the intentions of the applicant:

    • What is the applicant doing in Canada?
    • How long has the applicant been here?
    • How long is the request for?
  • Consider the reason given by the applicant for applying for the extension:

    • Are the plans well thought out or merely frivolous?
    • Has the applicant previously received an extension?
  • Consider the applicant’s situation in their home country:

    • What family, employment or other responsibilities and obligations has the person left behind?
    • How have these responsibilities been discharged?
    • Is a prolonged stay in Canada reasonable and feasible?
  • Consider the initial intent of the application:

    • What was the original purpose of the business visit to Canada?

    • Has it been fulfilled?

    • If it has not been fulfilled, was sufficient time originally granted to fulfil the purpose?

With NAFTA there were mechanisms in place that made refusing an application quite a bureaucratic headache. I am predicting with CETA that extensions (particularly for ICTs  – Senior Personnel, Specialists, and Start-Up Investors), will be more discretionary than they were under NAFTA and other agreements. These questions really delve at some issues around dual intention (A22(2) IRPA – see IRCC’s instructions on this)

2. IRCC’s NOC Equivalency Page for the Contract Service Providers/Independent Professionals is a Fantastic Resource

With an agreement that has many “unbound” (think not-included) professions and different eligibility for contract service providers and independent professionals, things can get messy. Especially when Appendix 10-E covers every single European country, with many of them split down the line into whether an occupation is included, not included, or specific educational/experience requirements.

IRCC did a Coles Notes table – took out all of the Canadian requirements, and put it in a very handy table that I think should be a starting point.

See: http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/a10-e.asp

3. Knowing how CETA interacts with the rest of the IMP/TFW Program Will Be Crucial

One of the interesting aspects of the provisions of the CETA is that in some cases they are less advantageous than the general provisions of IRPA and IRPR . For example, a business visitor (non-CETA) can stay in Canada for six months (upon entry) whereas the maximum length of stay of short term business visitors under CETA is 90 days in any six-month period (3 months).

Where possible – check to see if the activity you wish to perform already falls under the exemption for work without a work permit under R. 186 and R.187 IRPR  before requesting entry as a CETA business visitor. While the agreement and IRCC’s instructions state they will look at both, this may not be readily apparent to the POE Officer assessing your application.

Second, it may be useful not to forget the existence of LMIA-Exemptions available through Working Holiday programs and other venues in additional to CETA. For example, one of the things I’m curious to see is how a CETA interacts with those who wish to claim permanent residency when their permits may limit their employment (i.e. after a 12 month period runs out on a contract service provider’s Canadian work permit).

Working Holiday programs themselves may provider younger Europeans a more consistent  and flexibile way to get Canadian work experience than something like the graduate trainee ICT which is not extendable. Of course, as they are draw based, it may lead to the pursuit of more multi-path planning of immigration options.

CETA will be fun. It’s a Cadillac of an agreement (and I’m just talking about the mobility provisions) so it will be interesting to see how things go from here.

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