U.S. companies doing business in Canada often have to send some of their U.S. employees on business trips to Canada. When making arrangements for a trip to Canada, immigration requirements for admission into Canada are certainly not what the U.S. employer thinks about first. On the contrary, at the very last minute, if ever, the question is posed: “Do our employees need any documents in order to cross the border?” The response is yes, probably they do.
The first important question to be asked is the citizenship of the employee. If the employee is a citizen of a country for which Canada requires a visa and is not a green-card holder, it will be necessary to make an application for a temporary resident visa at a Canadian consulate in the United States. Note that U.S. citizens do not need a visa to enter Canada.
The second question to ask is whether the employee has committed any crime or other act that could be considered a criminal offense in Canada. If the response is yes, a determination of the employee’s inadmissibility must be made. Certain offenses don’t result in inadmissibility to Canada. Some offenses were committed so long ago that the person is deemed rehabilitated. Others will require the person to first obtain a rehabilitation declaration. But for some offenses such a declaration will not yet be possible.
In that case, however, one may still obtain a temporary resident permit by demonstrating to the consulate the absence of risk to public safety in Canada and the compelling reasons for the employee’s visit. In short, depending on the importance of the employee’s presence in Canada, you should decide whether it’s worth pursuing an application for a temporary resident permit or if it’s simpler instead to send a different employee to Canada, one who has no potential inadmissibility to contend with.
The next question concerns the purpose of the visit to Canada. Certain activities are clearly business activities, such as entering Canada to:
- search for potential clients or make a presentation to prospective customers;
- negotiate a contract with a Canadian client on behalf of a U.S. employer;
- attend coordination meetings with representatives of a Canadian company related to the U.S. employer (subsidiary, sister company, etc.), where some policies or activities common to both companies are discussed;
- attend a board of directors meeting of a Canadian company; or
- participate in a business convention.
Although an oral explanation given to a border officer concerning the purpose of the visit to Canada is often considered sufficient, in particular for short stays, it’s advisable to present other supporting documents. Business cards or advertising material can be useful. But it is preferable that the employee carry a letter from the U.S. employer confirming the context of the visit to Canada.
Certain other activities are explicitly considered as business activities by the Immigration and Refugee Protection Regulations (the “Regulations”), the North America Free Trade Agreement (NAFTA) or Immigration Canada’s Directives. Examples of such activities are:
- entering Canada to provide after-sales services; or
- entering Canada to provide training to the employees of a Canadian company or to receive training from a Canadian company, where the U.S. company and the Canadian company have a parent/subsidiary relationship.
In these cases, it’s indispensable to carry complete documentary evidence in order to benefit from this work permit exemption and be admitted as a business visitor.
Other situations are not as clear. If, for instance, the employee is assigned to temporarily work in the Canadian subsidiary of his U.S. employer, it may be the case that he can’t simply be admitted as a business visitor but would instead require a work permit. The distinction between “business” and “work” in Canadian immigration law is not always clear cut. The length of the stay is not a determining factor, although it may be taken into consideration.
A work permit may be needed even for a two-day stay in Canada. On the other hand, a person may be admitted as a business visitor for as long as a year. The most important factor is the nature of the activity to be performed in Canada. The test provided by the Regulations is whether the employee will enter the Canadian labor market and perform an activity in direct competition with Canadians. However, the test is not applied with perfect uniformity by border officers. Note that the definition of “work” for immigration law purposes is not the same as the definition of “work” for employment law purposes.
The Regulations provide some additional assistance by setting out the following conditions for all business visits:
- the primary source of remuneration of the business visitor must remain in the United States;
- the principal place of business of his employer must remain in the United States; and
- the principal place of accrual of profits of his employer must remain in the United States.
If the employee’s assignment in Canada doesn’t meet these criteria, a work permit will be required. However, meeting these requirements is not sufficient to conclude that the nature of the visit is “business.”
Additional key factors to be considered are the end beneficiary of the services provided (i.e., the U.S. company or the Canadian company) and whether the visitor will execute hands-on work and actively participate in the production of goods and services by the Canadian company.
Take the example of an employee of a U.S. subsidiary who will assist the Canadian parent company for two weeks in the testing of some equipment in Canada. The testing will involve some hands-on activities. Notwithstanding the fact that the employee remains on the U.S. payroll and that his employer’s principal place of business and accrual of profits remain in the United States, this person is considered to have entered the Canadian labor market and therefore needs a work permit. In other words, the three elements described above are necessary in order to qualify as a “business visitor” rather than a “worker,” but they are not sufficient. Fortunately, in this example there is a corporate relationship between the two companies, so obtaining a work permit should not be a problem (assuming the other requirements are met).
In another example, an employee of a U.S. company who enters Canada to provide services to a Canadian customer (other than after-sales services) will not be considered a business visitor. Although the employee is not directly paid by a Canadian source, his employer is receiving payment for the services rendered. Immigration Canada considers such payment as equivalent to remuneration from a Canadian source. The employee is therefore considered to have entered the Canadian labor market and will consequently require a work permit.
In conclusion, while some cases are crystal clear, in other cases the employee’s eligibility to be admitted as a business visitor or as a worker may require a more detailed analysis. Preparing adequately for the admission of your employee to Canada should not be regarded as an optional step. It’s a necessary exercise. Should the person be denied admission, the negative consequences would often outweigh the inconvenience of preparing in advance.
