One of the most difficult distinctions to make in Canadian corporate immigration law is establishing whether someone is entitled to enter Canada as a ‘business visitor’, or whether that person requires a work permit.
The lines are blurred, and getting it wrong can have significant consequences for both the ‘worker’, in terms of being turned away at a port of entry, being penalized for having worked without a work permit, and other issues, as well as for the employer, who may have failed to meet various legal and compliance requirements.
Immigration, Refugees and Citizenship Canada (IRCC) has now updated its guidance with regard to business visitors, which we will discuss below. Before looking at the guidance, a few notes about important considerations when it comes to business visitors:
- Firstly, it must be recognized that qualification as a business visitor is separate from the considerations of who needs a visa.
- There is often a misconception that if you don’t need a visa, you can come to Canada as a ‘business visitor’. This is not correct – it depends on the activity, and the activity may require a work permit, no matter where you’re from.
- The brevity of the anticipated time to be spent in Canada is not determinative of whether someone is a business visitor.
- There is another misconception that a brief visit as well means that it may be ‘business visitation’. Though brevity may provide some indicia of whether someone is entering the labour force, that factor alone does not necessitate a finding of ‘business visitor’.
- The fact that someone is being paid from abroad as well is not determinative of whether someone is a business visitor.
- Yet another misconception – that being paid from abroad removes you from the possibility of needing a work permit. It is true that to be a business visitor, remuneration must be paid by an entity outside Canada. However, the fact that the outside entity is paying the worker, again, does not in and of itself tell us that he/she is a business visitor.
Looking now at the new IRCC guidance, the basic principles vis-à-vis business visitors remain in large part unchanged, but IRCC has enhanced some explanations and examples. Below are some pertinent elements of current guidance (incorporating prior and new provisions):
- Two primary principles vis-à-vis business visitor, are:
- (a) That the prospective visitor is not to be competing in the Canadian labour market. Though the concept still leaves room for interpretation, this is refined by saying that a prospective visitor is not directly entering the Canadian labour market if:
- the primary source of the remuneration for the business activity remains outside Canada
- the principal place of business of the foreign national is located outside Canada
- the accrual of profits remains outside Canada, and
- (b) That the activity must be ‘international in scope’. IRCC again tries to provide examples of such activities, e.g.:
- purchasing for a foreign company
- receiving training from a Canadian parent or subsidiary of a foreign company
- (a) That the prospective visitor is not to be competing in the Canadian labour market. Though the concept still leaves room for interpretation, this is refined by saying that a prospective visitor is not directly entering the Canadian labour market if:
The list is not exhaustive (and therefore, again, not definitive).
- The above being said, IRCC then breaks down some of the more common situations where a foreign national may be considered a business visitor, the ones being most pertinent to corporate immigration being as follows:
- Attendance at a Board of Directors’ meetings
- Producers and essential personnel in commercial (advertising) shoots (e.g. actors, technicians) may be permitted entry as business visitors for a limited period (usually up to about 2 weeks)
- Employees of foreign companies contracting Canadian companies
- This may occur, e.g., where a Canadian company is providing service to a foreign company, and the foreign company needs to send staff to Canada to review the Canadian company’s progress.
- The foreign employee must remain on foreign payroll, and the foreign company remains the beneficiary of the employee’s efforts.
- After-sales service, where called for under a warranty or sales agreement, is permitted.
- Note that, with limited exceptions, no hands-on construction activity is permitted, and the service agreement must be either
- an extension of the original agreement
- negotiated as part of the original sales, lease, or rental agreement.
- Third parties may perform the services if called for in the initial agreement, but may not be performing service negotiated after the signing of the agreement.
- Personnel performing software upgrades may also be business visitors if the activity is called for in the new agreement.
- Note that, with limited exceptions, no hands-on construction activity is permitted, and the service agreement must be either
- Supervisors may be business visitors where they supervise installation of specialized machinery purchased/leased outside Canada (and again, with limited exceptions, may not include hands-on work)
- Trainers who train Canadians on specialized equipment after installation may also be business visitors.
- This may occur, e.g., where a Canadian company is providing service to a foreign company, and the foreign company needs to send staff to Canada to review the Canadian company’s progress.
The full updated IRCC business visitor guidance can be found at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/work-without-permit/business.html.
Certainly, as with every Canadian immigration matter, proper documentation and presentation of evidence to support the legal basis for the case, is essential.
The area remains a tricky one, and caution should be exercised. For those who do not need a visa, where there is any question or concern, a pre-screen may be considered (i.e. submission of materials in advance of travel to IRCC’s International Mobility Workers Unit for an opinion). Further, during COVID times, consideration must be had as to whether the activity is ‘non-discretionary’, and separately, what quarantining requirements may apply, and their impact on the visit.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.