US Elections and its effect on Canada Business Visa Rules
After the 2016 U.S election results, some of the important trading relationships would definitely undergo several changes. On the other hand, facilitating the cross-border mobility between the U.S and Canada remains to be crucial for both the countries. People will be granted to enter Canada with a business visa which was designed by the U.S without the usual permit requirement for a work. Currently, clarity is in lacking to attain the objective of accurately determining who does and who does not qualify to enter as a business visitor, however, the gist of the Canada Business Visa rules is given below.
The inaugural of 2016 U.S – Canada S.A.G.E Summit was held in 2016 with a motive of improving the cross-border mobility. For the first time, from both Canada and the United States, more than 200 delegates who individually represent 60 leading cross-border businesses, policy and political leaders came together. They assembled together to discuss “strategies, advocacy, gateways and engagement” (S.A.G.E.) with a goal to enact a consistent message between the stakeholders and the governments of both the countries to integrate the cross-border movement of goods and people to see if Canada Business Visa rules need any change in view of the changed scenario
Columbus Declaration-Initially, the “Columbus Declaration” was issued by the Summit delegates that include the set of deliverables to intend the restrictions and headaches for the business relationships between both the countries. Amongst all, the mobility of the labor was identified as one of the top three most pressing areas by the Delegates which are need to be addressed. They also supported with an emergent call to both the governments asking them to provide the clarity and training to the border officials which will help to maintain a consistent process regarding the business visitor applicants. After that, 40 key stakeholders met again in Washington, D.C, on 5th October 2016, to adopt the final version of the Columbus Declaration and began work on an S.A.G.E. 2017. After the inauguration of the new U.S. President, platform members intended to present both the governments.
Currently, a hindrance in the cross-border mobility is that a business person visiting Canada does not need to qualify as a “business visitor” for Canadian immigration law purposes. Even though a person wants to stay for a few days, he should get a work permit to entering and carry out their activities when they are coming to have business dealings in Canada. On the other hand, a person who has been qualified as a “business visitor” is exceptional to get the work permit as they are granted with the temporary entry to enter Canada and can be allowed to stay there even for six months. Getting this exemption is more valuable. It includes a fee and it will be difficult for a person to get a work permit without LMIA unless the individual meets one of the narrow exemptions for a labor market impact assessment (LMIA) which itself is a time consuming and a costly process.
There are some criterions to be met while trying to get qualified as a business visitor” to Canada. Five of the tips for obtaining the “business visitor” status are enlisted below along with their pitfalls.
THE “BUSINESS VISITOR” CRITERIA
The process of getting qualified as a “business visitor” status and its accompanying work permit exemption will be entirely dependent on the intended activities nature, and the broad criteria leave plenty of possibilities for vagueness.
Immigration and Refugee Protection Regulations (IRPA):
This is a regulation for the foreign nationals as they are permitted to work inside Canada under this regulation without the work permit as a “business visitor”. This can be broadly defined as; a foreign national on a business visitor can get “engaged in all the international activities of the business in Canada directly without entering the Canadian labor market”, but their principal place of business, the primary source of remuneration and the place of accrual of profits remains outside Canada. The Temporary Foreign Worker Guidelines (Guidelines) is a manual policy developed by the Canadian Government for guiding the immigration officers in their interpretation and application of the IRPA and NAFTA. The Guideline includes the illustrative examples of qualifying activities including the sales service/warranty work, purchasing or servicing the Canadian goods for a foreign business, receiving training in respect to such goods and services. It also includes the receiving or giving training within a Canadian affiliate of the corporation that employs them outside of Canada. If the training result is incidental it will represent a foreign business for the purpose of selling goods but, the sales to the public is restricted.
NAFTA: The North American Free Trade Agreement (NAFTA) will permit the nationals of member countries (the U.S. and Mexico) to work in Canada without the “business visitor” work permit. NAFTA’s business visitor criterion is in parallel to that of the IRPA with the reference to activities that are similar but not identical to IRPA’s “permitted activities”. Qualifying activities of NAFTA includes all those that are related to participating in business meetings, conventions, conferences, consultations, and negotiations. It is also related to design, growth, research, manufacturing, production and sales and marketing. Hence, the U.S and Mexican nationals can enter into Canada as a business visitor using the IRPA and/or NAFTA with a little distinction practically.
The Ambiguity: Initially, the activities for qualifying the person as a business person entering Canada with a business visitor work permit seems to be straight forward. On the other hand, applying to some of these activities clearly reveals the ambiguity and inconsistency. The after-sales service category offers a useful illustration of this ambiguity. After-sales service was expressed as a qualifying activity by both the IRPA and NAFTA. In both, “after-sales service” includes after-lease and after-purchase service. In turn, this also includes the servicing and repair, set up and testing of commercial or industrial equipment and the supervision of installers doing such work. This is arguably clear in practice.
Both the IRPA and NAFTA excludes specifically the “hands-on” installation and work that are generally performed by construction or building trades, such as electricians and pipe fitters with the activities permitted by the business visitor. It will be precisely unclear that what constitutes after-sales or hands-on work and this leaves the space for the immigration border officers to apply their discretion on a case-by-case basis, and ultimately uncertainty.
- In general, purchasing or leasing the repair or service specialized equipment is a qualifying activity under both the IRPA and NAFTA. But, this is applicable only if the service is for newly purchased or leased equipment/software, or performed as part of the original or extended sales/lease agreement, warranty or service contract.
- But, the services that are intended to be performed as a part of the original agreement is left unclear. If the work to be performed is left uncovered under a warranty or no service contract, a work permit is a must for an entry.
- The after sales category also covers people who were entering Canada for the purpose of supervising the installation or dismantling of specialized machinery which are leased out or purchased outside the Canada and also for those who provide training services in respect to the equipment.
- A worker belonging to a foreign company will require a work permit when the Canadian employer has directly contracted for the services of the foreign company under the guidelines.
- Albeit the principal place of business for the worker and the primary source of remuneration remains outside the Canada. But, the foreign employer will receive the payment for their service provided by the worker. Consequently, the worker’s compensation will be derived from a Canadian source. A business visitor is not a criterion for a person who enters the Canadian labor market.
THE BUSINESS VISITOR (NON) APPLICATION PROCESS FOR U.S. (& OTHER VISA-EXEMPT) NATIONALS:
The process of applying for “business visitor” application with more accurately, there are some lacks in that process. Before choosing the application process you should consider these lacks and select the right one.
No official application: The main lack in an official application is a casualness, it creates some doubt about the person, who is eligible to get the application or not? Canadian immigration officers have conscious about the “business visitors” whether their entry is accepted or rejected and that maturity is applied erratically at different ports of entry.
No advance process. The Americans and another visa- exempt foreign national cannot consider the authorization for entering the Canada using the business visitor credit in advance. They should report their arrival at the entry port and if failed, they will be put under penalty.
TIPS FOR BEING A GOOD (BUSINESS) VISITOR:
There are many issues in the business visitor criteria, in the process is to obtain the “business visitors” status to enter Canada and it can be a quick and stress-free process for the Visa-exempt foreign nationals from the U.S. here are some tips to become a good business visitor.
Define the activities: First, the business person should perform in Canada and qualified as a “Business visitor” then their activity noticed by IRPA and NAFTA. Consider that and then determine which one is fit or not.
Documentation: A person who has strong-minded activities fall within the “business visitor” exemption must ensure that they should prepare their proper documents to demonstrate the government. Here are five key element depends on the “Business visitors” that they cannot cross the U.S – Canada border without these elements.
- The person must have the letter of invitation from the Canadian entity. If it is accepted, then they can refer the permitted activities and indicate how the person’s activities support with these things.
- Must get the support letter from the foreign employer, stating that the business person‘s place of business and their compensation should be outside of Canada, and their profit results from the entire business activities that are also gathered from outside of Canada only.
- Must have the documents that should be affiliated the Canadian company and foreign company and also have the corporate organizational chart and proof for that affiliation.
- If you’re entering as a sales service employee, must have the proof of the software or equipment and the original sales contract/ purchase order. This will help to indicate those services are performed in your business and must have the sales/ lease agreement, warranty and service contract.
- If you’re a U.S citizen or a foreign national with a temporary resident visa, must have an Electronic Travel authorization (eTA) with you. For visa-exempt foreign nationals must have the work permit and eTA is the essential one. Without these key elements, you should not cross the U.S- Canada border.
Related Read- Canada Business Visa rules in brief
Got an issue to discuss with leading Immigration consultants regarding Immigration to US or Canada? Join our facebook group ImmigrationCanada and post your query