Working in Canada without a Work Permit: Common Exemptions

by Ingrid Anton and Gilda Villaran

In order to work in Canada, the general rule requires a foreign worker to obtain a work permit. There are certain exceptions to this rule. We present below the most common ones. Although some of the activities described below are normally considered “work” for immigration purposes, Canada’s immigration regulations allow foreigners carrying out these activities to enter the country as business visitors.

After-sales services
A U.S. citizen may enter Canada to perform/supervise installation, repair, or servicing of commercial/industrial equipment, machinery, or software. These goods must have been manufactured outside of Canada and sold or leased to a Canadian company by the U.S. citizen’s U.S. employer. This work permit exemption also applies if the employee will provide training to Canadian workers in connection with these services (see below, trainers). “Installation” means only setting up or testing. It doesn’t include hands-on installation such as would be performed by an electrician or pipe-fitter, for example.

The services to be performed must require specialized knowledge of the U.S. employer’s products, services, and procedures. They must also be done in the context of an existing contract (original sales contract, warranty, or subsequent service agreement connected with the sale). In addition, they must be specifically provided for in the contract in clear wording.

The transaction may be a sale from the U.S. company to a Canadian company or from the U.S. company to a Canadian distributor who then sells it to a Canadian end-user. Even if the sale is indirect, the U.S. company may still provide after-sales services to the Canadian end-user.

When entering Canada, U.S. employees intending to perform after-sales services should carry the following documents:

• proof of their U.S. citizenship;
• a letter from their employer confirming the purpose of the visit and describing the activities to be performed;
• a copy of the sales contract or other document confirming the after-sales context.

A U.S. employee may arrive in Canada with the necessary documents and have them analyzed on the spot. Alternatively, his or her employer may submit the documents in advance to the local immigration office in the employee’s destination province for pre-assessment. This facilitates the employee’s entry at the time of arrival in Canada. It also allows the employer to provide additional documents and information if required, rather than risk having the employee refused at the border if the officer isn’t satisfied with the documents. The same is true for the other exemptions described below.

An important exclusion from the after-sales services provision is hands-on building and construction work, which does require a work permit. Other important exclusions include site preparation work and services installation (such as electricity, gas, or water).

Trainers
As mentioned above, in an after-sales situation, a U.S. employee may enter Canada to provide training concerning the equipment or machinery installed. In addition, the employees of a U.S. company coming to provide/receive training to/from employees of an affiliated company in Canada can also be admitted as business visitors. The companies must be related through a parent-subsidiary relationship.

In all cases, the U.S. employee must maintain his or her position with the U.S. employer and continue to receive remuneration from this employer. Trainers or trainees may not participate in the production of goods or services in Canada.

U.S. employees entering Canada in this context should carry:

• a letter from their employer detailing the purpose of the visit;
• proof of the after-sales context (a sales agreement or purchase order) or of the corporate relationship between the U.S. employer and the Canadian company, as applicable.

Since this exemption has been abused in the past by people who saw it as a way to avoid the trouble of obtaining a work permit, Immigration Canada has become more demanding concerning the details of the training. The letter of support should provide the specifics of the training plan: context, objectives, length, brief description of the contents of the training, etc.

Board of directors’ meetings
Another common exemption is when the purpose of the visit is to participate in board of directors meetings as a member of said board. According to Immigration Canada’s guidelines, such meetings may include, but are not limited to:

• selecting and appointing a chief executive officer;
• governing the organization by setting broad policies and objectives;
• accounting to shareholders for products, services, and expenditures.

When entering Canada, a member of the board should carry:

• a letter from the Canadian company whose board meetings he or she will be attending confirming his or her position as well as the dates, location, and purpose of the meetings;
• an excerpt of the company’s website or annual report if available (most public companies also list their board members on their websites or in their annual reports).

In conclusion
As mentioned above, these are just the most common exceptions to the rule that a work permit is required in order to work in Canada. Other work permit exemptions listed in the immigration regulations apply mostly in other, nonbusiness contexts. In cases where no work permit exemption applies, or where an after-sales service provider, trainer, or member of a board of directors doesn’t meet the requirements described above, a work permit will be necessary. Stay tuned for our next installment describing the general rules and conditions regulating issuance of work permits.