We’re extending the CIW (Corporate Immigration Week) to the end of the month!
R. 204(a), of the Immigration and Refugee Protection Regulations (“IRPR”) provide certain Professionals exemptions from the onerous Labour Market Impact Assessment (“LMIA”) process.
Whether a Professional qualifies depends on the specific Trade Agreement Canada has entered into and the terms of the Trade Agreement. Each Trade Agreement has it’s own unique textual nuance that can have quite dramatic effects in whether the exemption can practically apply.
In this piece, we will look at the North-American Free Trade Agreement (“NAFTA”), Canada-Columbia Free Trade Agreement (“CCFTA”), Canada-Korea Free Trade Agreement (“CKFTA”), and the soon-to-be signed/may be ratified Trans-Pacific Partnership (“TPP”).
NAFTA
Under NAFTA, a party shall grant temporary entry to a business person seeking to engage in a business activity at a professional level in a profession set out in Appendix 1603.D.1. Appendix 1603.D.1 contains around 63 different professions/subprofessions that qualify. Among the professions, lawyers are included. The Minimum Education Requirements and Alternative Credentials are listed in the chart – most requiring a Baccalaureate or Licenciatura Degree; or a post-secondary diploma/professional license depending on the profession.
It is also important to note that NAFTA does not specifically cover the spouses of Professionals but spouses of NAFTA Professionals, who by nature of their positions are in a Skilled National Occupation Classification (“NOC”) Code under NOC 0,A,B, are eligible for a open-work permits pursuant to R. 205(c)(ii), code C41.
CCFTA
Under the CCFTA, professionals are defined as follows:
professional means a national of a Party who is engaged in a specialty occupation requiring:
(a) theoretical and practical application of a body of specialized knowledge and the appropriate certification/license to practice; and
(b) attainment of a post-secondary degree in the specialty requiring four or more years of study, as a minimum for entry into the occupation;
CCFTA includes a list in Appendix 1203.D of the 19 occupations that are not included as professionals under the agreement. Several social sciences professions, in particular judges, lawyers, and notaries are excluded.
What sets the CCFTA apart is a seemingly minor footnote detail. It states under footnote 2 (attached to the definition of professional).
In the case of Canada, these requirements are defined in the NOC.
Unlike NAFTA, the CCFTA does not contain a table list of minimum educational requirements and alternative credentials. A CCFTA professional must meet and is guided by the NOC requirement.
For example, for Civil Engineers (NOC 2131) and Computer Engineers (NOC 2147), the NOC requires the following:
- Licensing by a provincial or territorial association of professional engineers is required to approve engineering drawings and reports and to practise as a Professional Engineer (P.Eng.).
The contrast between CCFTA and NAFTA is strong in the sense that a Bachelors degree appears all that is needed for NAFTA’s qualifications while a provincial license appears necessary under the CCFTA for several required duties.
It is to be noted that the CCFTA does create an specific exemption (T25) for spouses of successful CCFTA work permit applicants, allowing them to obtain open work permits.
CKFTA
The CKFTA provides yet another different classification of professional. The CKFTA provides one general definition but also two-subcategories.
The general definition is:
professional means a national of a Party who is engaged in a specialty occupation as stated in Appendix 12-A-2 who is not engaged in the field of education; and
Specifically, professionals are split into two categories.
contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied. The contract and duration of stay shall comply with the domestic law of the other Party;
independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level, provided that the person possesses the necessary education, or satisfies accreditation or licensing requirements as stipulated for the profession;
IRCC clarifies how the two different professionals are to be assessed:
Professionals (work permit required / LMIA exemption code T23)
The Canada-Korea FTA differentiates between two types of professional—the contract service supplier and the independent professional. Both must be requesting entry to provide a pre-arranged professional service and possess the necessary education, or satisfy accreditation or licensing requirements, as stipulated for the profession.
The following definitions apply:
- contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied.
- example: A Canadian high tech company contracts the services of a Korean firm to provide services in the field of engineering. An experienced software engineer employed by the Korean firm in Seoul seeks entry to Canada to provide the engineering services under the terms of the pre-arranged services contract.
- independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level.
- example: A self-employed Korean management consultant seeks entry to Canada to provide services to a technology company under the terms of a pre-arranged contract.
Similar to the approach used in the NAFTA, the Canada-Korea FTA uses a positive listing of professionals (set out in Appendix 12-A-2), however, it is divided between Contract Service Suppliers and Independent Professionals, as coverage in each category differs.
This provision is quite unique as it suggests that a Korean national cannot be employed (as an employee) by the Canadian entity but rather either has to be an independent contractor OR an employee of the Korean entity that has contracted with a Canadian entity.
In effect, for several Koreans seeking to use this exemption as a temporary bridge to future permanent residency options and who may previously or continue to work for a Canadian employer, they would necessarily need to reformulate their employment contracts.
It is to be noted that CKFTA does create an exemption (T25) for spouses of successful CKFTA work permit applicants, allowing them to obtain open work permits.
TPP
Canada’s commitments under the TPP with respect to Professionals shows a tightening up of the category. The scope of the TPP’s extension of R.204(a) LMIA exempt work permits is enormous. It covers countries including Australia, Brunei, Chile, Japan, Malaysia, Mexico, and Peru . While there are several industry restrictions for each of these countries, I expect the effect of TPP on the foreign worker landscape in Canada will still be pronounced.
For example, an Australian national who obtains a Canadian Bachelors degree graduating at the age of 21 arguably could theoretically (assuming no application of the four-year cap) apply for a post-graduate work permit (up to 3 yrs), the working holiday/young professionals plus international co-op (up to 3 years), and the TPP (1 year initially) for a combined 7-years of employment in Canada without the need for a LMIA or an Application for Permanent Residency.
Understandably, the restrictions on the professionals are tighter than they are for NAFTA, CCFTA, and the CKFTA aookucabts. For starters, the initial work permit is to be issued for one rather than two years. Importantly, the definition of professional is also stricter:
professionals means business persons engaged in a specialty occupation requiring:
- (a) theoretical and practical application of a body of specialized knowledge; and
- (b) a post-secondary degree of four or more years of study, unless otherwise provided in this schedule, and any additional requirement defined in the National Occupation Classification, and
- (c) two years of paid work experience in the sector of activity of the contract, and
- (d) remuneration at a level commensurate with other similarly-qualified professionals within the industry in the region where the work is performed. Such remuneration shall be deemed to not include non-monetary elements such as, inter alia, housing costs and travel expenses.
In addition to the CCFTA’s requirement that the NOC requirements also be met. There is also a requirement for two years of paid work experience in the sector and remuneration at a commensurate level (which I expect would be prevailing wage as per Job Bank). This exemption will be very difficult for a transitioning post-graduate work permit holder to meet so expect it mainly to be used for senior employees/contractors unless the provision changes.
Conclusion
NAFTA, CCFTA, CKFTA, and the pending TPP all provide very interesting insight into the nuances but important differences in each Trade Agreement and how they affect immigration options.
I would be happy to assist any individual from any of the Trade Agreement countries in figuring out how an LMIA exemption can be used for them either in a primary or secondary role to support work/future permanent residency ambitions in Canada.
