Canadian visa Summary

1. INTRODUCTION

This summary is designed to provide basic information about the work permit and/or visa application processes in Canada. Please remember that, as with any country, Canada’s immigration laws may change without notice. The information in this summary is of a general nature and does not constitute legal advice. For current and detailed information regarding the state of Canada’s immigration laws, as well as information pertaining to your specific needs, please contact the legal professional with whom you work at Fragomen.

2. BUSINESS VISITORS

Allowable Activities
Allowable Activities for Nationals of Countries Other Than U.S. and Mexico
Business Visitors to Canada, holding appropriate entry documentation and otherwise meeting Business Visitor requirements, may engage in the following activities for up to six months:

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      1. Buying of goods, including quality control of goods to be purchased in Canada; familiarization with the goods to be purchased; and/or training sessions;
      2. Selling of foreign goods to clients other than the general public; follow-up sales calls;
      3. Consultation, monitoring, negotiating, auditing and inspection;
      4. Emergency services, which normally would apply in the case of natural disasters and medical emergencies, but which may equally apply to commercial accidents, which, for example, threaten life or the environment;
      5. Attending conferences or conventions;
      6. Post-sales services such as repairing, servicing, supervising installers, and setting up and testing commercial or industrial equipment. “Setting up” does not include hands-on installation generally performed by construction or building trades. Post-sales service also applies to persons seeking entry to repair or service specialized equipment purchased or leased outside Canada, provided the service is being performed as part of the original or extended sales agreement, lease agreement, warrant, or service contract; and
      7. Applying for a U.S. visa stamp. (Must check with the U.S. Consulate in Canada prior to traveling to Canada.)

Allowable Activities For U.S. and Mexican Nationals:
Under the North American Free Trade Agreement (NAFTA), U.S. and Mexican nationals enjoy certain privileges not provided to any other nationality. In addition, U.S. nationals are permitted certain activities as Business Visitors that are not provided to any other nationality. These permitted activities include research and design, marketing, sales, distribution and after-sales service. U.S. and Mexican nationals should consult with their immigration service provider to confirm which activities are allowed as Business Visitors.

Type of Visa
In Canada, Business Visitor Visas are called Temporary Resident Visas.

Nationals from certain countries must obtain a Temporary Resident Visa from the Canadian Embassy or Consulate with jurisdiction over their place of residence prior to entering Canada.

U.S. citizens and certain other nationals do not need to obtain a visa prior to traveling to Canada. They may request admission as Business Visitors at the port of entry, provided that they meet the general criteria for Business Visitors. If a business trip, even if very brief, will involve activities other than those outlined above, a work permit may be required, even for a visa-exempt national.

Short-Term, Technical Activities
Business Visitor status may or may not be appropriate for visits to install or repair machinery, computer software or equipment or perform other technical duties at either an affiliated company or a client site. A work permit may be required. Whether a work permit is required will depend in part on whether the activities are being performed on behalf of a Canadian or a foreign entity.

Please consult with your immigration professional for Canada before planning travel to determine the immigration requirements for your case.

Basic Requirements

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      1. A valid passport, travel document, or identity document which guarantees readmission to the country of issuance;
      2. Evidence of sufficient funds for the Business Visitor to maintain himself or herself while in Canada and to effect departure; and
      3. A medical examination, in certain circumstances. In particular, Business Visitors who remain in Canada for more than six consecutive months, and who have resided for more than six consecutive months in the previous year in a country with a high incidence of communicable disease, or who demonstrate a serious medical problem are required to complete an immigration medical report prior to admission to Canada.

Commonly Required Documents and Processing Time
Those nationals that require a Temporary Resident Visa must obtain one from the Consulate having jurisdiction over the applicant’s place of current, legal residence or country of citizenship.

Documents commonly required are:

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      1. Application form;
      2. Valid passport;
      3. Company letter of support;
      4. Two photographs;
      5. Proof of temporary or permanent legal residence in the country of application (if applicable);
      6. Proof of funds; and
      7. Application fee.

Visa applications may take up to ten business days to be approved.

Please note that the immigration authorities and/or Consulate reserve the right to request additional information, documentation, a personal appearance, and/or to exceed stated processing times.

Maximum Period of Stay
Typically, a Business Visitor is admitted to Canada for a period of up to six months.
Visa holders may extend their visitor status in Canada for up to an additional six months, provided their activities in Canada are consistent with their visitor status.

Post-Arrival and Departure Requirements
There are no post-arrival or departure requirements for Business Visitors.

3. EMPLOYMENT AUTHORIZATION

Following is a summary of the types of work permits/visas for Canada, the steps involved in obtaining employment authorization, and other relevant information for employees going to Canada on a work assignment.

NOTE: Unless otherwise stated, the work permit/visa process details provided below are based on the common scenario of an Intra-Company Transfer. Other scenarios and work permit/visa categories and processes should be reviewed on a case-by-case basis with the appropriate Fragomen Advisor.

“Regularization” from Visitor to Work Status
A foreign national may not convert from Visitor to Work status while remaining in Canada. While the employee may be present in Canada while the work permit application is being processed, the employee must limit his/her activities to those approved under Business Visitor status. Once the work permit application is approved, the employee must depart and re-enter Canada to activate the work permit.

Types of Work Permits/Visas
The major Canadian work permit categories are as follows:

1. (NAFTA) North American Free Trade Agreement (U.S. and Mexican citizens only)
Applications under the following NAFTA categories may be submitted to a Canadian Consulate or at the point of entry upon arrival.

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          a. The foreign national must have been employed by a U.S. or Mexican entity for one year in the previous three years prior to requesting employment in an Executive, Managerial, or Specialized Knowledge position.
          b. The foreign national must be entering Canada to work for an affiliated entity in a similar capacity.
      • 1. Requirements

    • A. Intra-company Transferees (ICT): B. Duration. Employment authorizations are issued under this category at the time of entry for a maximum of three years. The work permit can be extended in two year increments provided the foreign national continues to comply with the category requirements. There are also time caps for subcategories of Intra-Company Transferees. Executive or Managerial employees may stay for a total of seven years and workers with “specialized knowledge” may stay for a total of five years.

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          a. The foreign national must be employed in a designated profession: eg: accountant, computer systems analyst, engineer, etc.
          b. The foreign national must possess the appropriate degree and/or credentials for the designated profession.
      • 1. Requirements

    • A. Professionals. B. Duration. Work permits are issued under this category at the time of entry for a maximum of one year. The work permit can be extended in one year increments, provided the foreign national continues to comply with the requirements of the given Professional role. There is no limit to the number of extensions permitted, but Canadian Immigration must be satisfied that the employment is still “temporary” and that the applicant is not using NAFTA entry as a means of circumventing normal immigration procedures.

2. General Immigration Provisions (All other nationals)
An application in this category is generally submitted at a Canadian Consulate. Visa-exempt nationals may instead be permitted to present their application at the port of entry upon arrival. Processing time will depend on the Consulate and can range from five business days to several months, depending on whether a medical exam is required and whether the applicant is inadmissible due to his/her criminal background.

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      a. Intra-company Transferees (ICT). This category applies to Senior Managers/Executives and workers with specialized knowledge. Employees must have worked for at least one year of the previous three years in a similar position for the company.
      b. Significant Benefit to Canada. Applicants in this category will most likely require the approval of HRSDC (Human Resources & Skills Development Canada). To qualify for this visa, the benefits to Canada must be obvious.
      c. Reciprocal Employment. Reciprocal agreements between or within multinational companies allow workers to be employed in Canada. The burden is on the institutions and/or applicants to demonstrate that reciprocity exists. Similar access to the given positions must be available to Canadians.
      d. Facilitated Entry for I.T. Workers. This category applies to any national who falls into one of the seven IT job descriptions that have been identified as being in short supply in Canada. An applicant must have a degree and a minimum of two years related experience.

Foreign nationals not fitting any of the above categories must obtain a Labor Market Opinion, which requires the Canadian employer to evidence that there are no Canadian citizens or permanent residents readily available to perform the duties of the job. Following approval, the foreign national may file an application for a work permit with a Canadian Consulate with jurisdiction over the applicant’s place of residence, or at the port of entry in the case of visa-exempt nationals.

Basic Requirements
See “Intra-company Transferee” sections under “Types of Work Permits” above.

Process Overview
Foreign nationals generally file work permits at the Canadian Embassy or Consulate with jurisdiction over the applicant’s country of legal residence together with a Temporary Resident Visa application (for those nationals that require a visa to enter Canada). Upon approval, the foreign national may present the visa (if required) and pre-approval letter at a port of entry, obtain a work permit, and be admitted to Canada for employment.

Visa exempt nationals may present their applications at a Canadian port of entry for immediate adjudication, although in complex cases it is preferable for visa-exempt nationals to file an application prior to entry with the Canadian Consulate or Embassy and obtain a Pre-Approval Letter.

Please note the immigration authorities and/or Consulate reserve the right to request additional information, documentation, and/or a personal appearance, and to exceed stated processing times.

Host Country Documents Required
A company support letter or a Labor Market Opinion.

Home (Sending) Company Documents Required
Typically, no documents are required of the sending company.

Employee and Family Documents Required

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      1. Completed application forms;
      2. Original passport (for visa nationals) or a copy of the identification page of a passport (for visa-exempt nationals);
      3. Two to six passport style photographs of the applicant and each accompanying family member, depending on the Embassy or the Consulate;
      4. Up-to-date resume;
      5. Copy of the foreign national’s academic credentials; and
      6. The required application fee.

Applications presented at the Port of Entry do not require items one and three.

Please note that document requirements, procedures, and processing times may vary significantly across Consulates in different locations. Accordingly, it is best to check with the specific Consulate about documentation requirements for your visa type.

Processing Time
The average time required to assemble the corporate and employee’s documentation and file a work permit application -is several days to several weeks, although this will vary based on individual company and employee response times.

Once the work permit application is filed with the Canadian Consulate, processing times vary from Consulate to Consulate and will depend in part on the workload of the particular Consulate. Straightforward applications generally take one to two weeks to be processed. Applications requiring a medical examination may take four to six weeks or more to be processed.

Applications presented at the Port of Entry are processed while the applicant waits.

Post-Arrival Requirements: Registration, Residence Permit, Tax Card
Canada does not have a residence permit or registration requirement.

Departure Requirements
There is no requirement to have the work permit cancelled upon departure from Canada, nor are there any other departure requirements.

4. PENALTIES FOR NON-COMPLIANCE

Employee
If an employer or a foreign national is found to be in violation of Canada’s immigration legislation, the violator may be subject to penalties, including a civil fine of up to $50,000 CAD, and/or a term of imprisonment not to exceed two years.

Employer
If an employer or a foreign national is found to be in violation of Canada’s immigration legislation, the violator may be subject to penalties, including a fine of up to $50,000 CAD, and/or a term of imprisonment not to exceed two years.

5. FAMILY AND DEPENDENTS

Spouse and Children
No separate application is required for accompanying family members. Spouses and children are included in the principal applicant’s work permit application. However, spouses who wish to work must file a separate application.

Unmarried Partners—Opposite-Sex
The definition of spouse has been expanded to include common-law partners. Common-law partners can be included as spouses for all immigration categories. Any application that includes a common-law partner must include an additional application form (a statutory declaration of Common-Law Union), documentation showing co-habitation of at least 12 months, and other evidence of the relationship (joint assets/liabilities, wills, insurance policies, etc.).

Unmarried Partners—Same-Sex
In Canada the definition of spouse includes same-sex partners. Any application involving a same-sex partner must be accompanied by an additional application form (a statutory declaration of common-law union), documentation showing co-habitation of at least 12 months, and other evidence of the relationship (joint assets/liabilities, wills, insurance policies, etc.).

Work Authorization for Family Members
Spouses of work permit holders are permitted to apply for “open” work permits without the need for pre-arranged employment in Canada. These provisions apply to both married spouses and common-law partners, including same-sex partners. If the working spouse intends to work with children or in the medical profession, however, a medical exam may be required.

Study Permits are not required for children of Work Permit holders who are attending primary or secondary school. To attend post-secondary education, a Study Permit is required if the course or program duration is over six months.

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