Benjamin A. Kranc

425 University AvenueSuite 200Toronto, Ontario M5G 1T6Tel: (416) 977-7500E-mail: bkranc@kranclaw.comWeb: www.kranclaw.comTwitter: @kranclawLinkedIn: ca.linkedin.com/in/benjaminkranc

Canadian Corporate Immigration____________________________Understanding and Navigating the System

IRPA/R: Immigration and Refugee Protection Act/Regulations ESDC: Employment and Social Development Canada (previously HRSDC) Service Canada(SC): Administers ESDC Programs LMIA: Labour Market Impact Assessment (previously LMO) NOC: National Occupational Classification

CEC: Confirmation Exemption Code CIC: Citizenship and Immigration Canada CBSA: Canada Border Services Agency

NAFTA: North American Free Trade Agreement GATS: General Agreement on Trade in Services CCFTA: Canada Chile Free Trade Agreement CPFTA: Canada Peru Free Trade Agreement CCoFTA: Canada Colombia Free Trade Agreement CSKFTA: Canada South Korea Free Trade Agreement [Coming Soon?: European Union] [Coming Soon?: Trans-Pacific Partnership]

Require LMIA and Work Permit◦ Requirements Set Out in IRPR s. 203

Require Work Permit; LMIA Exempt (International Mobility Program [IMP])◦ Intra-Company Transferees◦ NAFTA, GATS, CCFTA, CPFTA, CCoFTA, CSKFTA Professionals◦ Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other

Work Permit Exempt◦ Business Visitors◦ Other Exemptions

Whether:

*Work is likely to fill a labour shortage

*Work offered at prevailing wages and appropriate work conditions

*Employer has made reasonable efforts to hire/train Canadians

Work is likely to result in creation/transfer of skills and knowledge to Canadians

Work is likely to result in job creation/retention

Work is likely to affect any labour dispute

Prior changes (in last 5 years)

◦ Substantially the same

◦ Genuineness

◦ 4 year limit

◦ Recruitment requirements 4 weeks from 2 2 sources plus job bank Ongoing

◦ Filing Fee $1000 per position

June 2014

◦ Now: Labour Market Immigration Assessment (Previously LMO)

◦ Test redefined from NOC based ‘High Skill’ to Wage based ‘High Wage’

◦ High Wage Transition Plan

◦ Low Wage Caps and Restrictions

Failure to Comply◦ 25% Audit Expectation◦ Non-compliance can lead to 10 or More Year Ban on Hiring Foreign Workers Publication on ‘Black List’ Inability to Renew LIMAs and Work Permits

Therefore:◦ Maintain Records: 6 Years, including: Wages Immigration Documentation Other

◦ Proactive Compliance Systems

√ Require LMIA and Work Permit Requirements Set Out in IRPR s. 203

Require Work Permit; LMIA Exempt (IMP)◦ Intra-Company Transferees◦ NAFTA, GATS, CCFTA, CPFTA, CCoFTA Professionals◦ Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other

Work Permit Exempt◦ Business Visitors◦ Other Exemptions

Intra-Company Transfer

◦ Canadian company affiliated with foreign company

◦ Employee works in foreign affiliate for 1 Year in Last 3(except 6 months for Peru)

◦ Capacity: Executive/Senior Manager/Specialized Knowledge

◦ Note: NAFTA/GATS/FTAs/IRPR “Convergence”

Coming from foreign company to ‘Affiliated’ Canadian company

◦ ‘Affiliated’ can be

Parent/subsidiary

Sister corporations

◦ Look at control (could be < 50%)

One in last three years with overseas company

◦ Must be presently working there

◦ Employment – past and future – can be ‘contract’ but needs to be dedicated arrangement

Specialized Knowledge or Senior Managerial/Directorial Level

◦ Specialized Knowledge

Advanced Experience / Proprietary Knowledge

◦ Managerial Experience

Typically managing people, sometimes functional

Other considerations

◦ Caps 5 years for specialized knowledge 7 years for managerial positions

◦ Renewable in 2 year increments

◦ Startup considerations 1 year Substantiation of doing business in Canada

Effective June 2014

◦ Changes to assessment for Specialized Knowledge Cases

Considerations as to meaning of ‘Specialized Knowledge’

Salary Issues

Control Issues

◦ Specialized Knowledge:

“Knowledge at an Advanced Level of Expertise”

PLUS

“Proprietary Knowledge of the Company’s Product, Service, Research, Equipment, techniques or Management”

(Test is ‘high degree’ of each of these, on a balance of probabilities)

Advanced Level of Expertise

Specialized knowledge gained through significant and recent experience with the organization and used by the individual to contribute significantly to the employer’s productivity.

Significant experience – no specific guideline, just that the longer the experience, the more likely the experience is specialized

Recent – within the last five years

Proprietary Knowledge Company-specific expertise of a company's product or service where

specifications that would allow other companies to duplicate the product or service would not have been divulged.

Advanced Proprietary Knowledge:

Uncommon knowledge of company’s products/services in international markets, or

Advanced level of expertise or knowledge in company’s processes and procedures such as its production, research, equipment, and management.

Other Factors: Wage

Minimum of Prevailing Wage

Do not include non-cash per diems (only directly paid monetary payments can be included)

Control

Worker to be clearly employed by, and under direct/continuous supervision of host company

Typically, no training should be required

Exceptions/Breathing Room:

Minimum Wage Guideline does NOT apply to ICTs under any Free Trade Agreement

HOWEVER, it can still be a factor to be considered

Note: GATS is NOT a Free Trade Agreement for our purposes

Where agreement calls for different definitions, respect those other definitions. e.g. Peru Free Trade Agreements – 6 months’ experience

New Realities/Implications:

Difficulty ‘Parachuting’ Control issue means that sending someone for a few days may be difficult

Issues re level of ‘Proprietariness’ How special does it have to be?

NOC classifications Reclassification could deny ICT status even if all other tests met

Need for Alternatives/Creativity

Senior Managerial/Executive Intra-Company Transfers:

Impact?

Nothing Definitive

Wages?

Control?

Professionals◦ NAFTA; e.g. Management Consultant◦ GATS; industry specific, 90 day maximum◦ Other

Reciprocal Benefit

Significant Benefit

Further Possibilities

Designated list

Each has specific requirements◦ e.g. Bachelor’s Degree, membership in a professional association, etc.◦ Review NOC for considerations of profession

Do not need Canadian licence for profession

Need pre-arranged employment with Canadian company◦ ‘employment’ is often a contract for services◦ No self-employment

List of approximately 60 occupations

A random sampling includes:

◦ Agriculturist◦ Dentist◦ Seminary Teacher◦ Hotel Manager◦ Forester◦ Librarian

Engineer

◦ Degree or Licence

◦ Need not be licenced in Canada (Note distinction for ‘letter of no objection’ in other categories)

Computer Systems Analyst

◦ Degree or Diploma/Certificate – Now field-related

◦ Must be doing ‘systems analysis’ – beyond basic programming

Management Consultant

◦ Degree in related field, or Five years’ experience

◦ Improving high level issues, not production

◦ Caution: open to abuse by clients, and skepticism by officers.

Scientific Technician

◦ Includes the fields of astronomy, biology, engineering, geology, and others

◦ Ability to solve practical problems

◦ Person being supported must qualify in their own right

◦ Questions about ‘construction trades’, e.g. electricians, aircraft technicians

GATS◦ Engineers, Computer Specialists◦ 3 months

CCFTA◦ Engineer, Computer Systems Analyst

CCoFTA◦ Negative list – no Pharmacists, Performing Artists, etc.

CPFTA◦ Negative list – no Pharmacists, Performing Artists, etc.

CSKFTA◦ Contract Service Supplier◦ Independent Professional

European Trade Agreement? Trans-Pacific Partnership?

Theory: Neutral Labour Market Impact

Some formal programs, e.g.:◦ International Experience Class◦ Working Holidays

Can be used by individual company◦ Need not be one for one◦ Need not be direct (i.e. Canada sends to Germany, Ireland sends to Canada)

◦ Evidence: Rosters of Transfers In/Out; Global Mobility Policy

Institutional Reciprocity

Bilateral Agreements with Various Countries

Various Programs, each with unique requirements

Restrictions on:◦ Age ◦ Renewal◦ Recently graduated (within the last year)

Note: New ‘Pool’ System

Must apply at visa post

Trader:◦ Businessperson carrying on substantial trade between US or Mexico, and Canada

Investor:◦ Businessperson establishing or advising an operation based on an investment in

Canada, where businessperson has committed or will commit a substantial amount of capital. Amount of capital relative to amount of investment Intra-company alternative

Significant Benefit◦ ‘Last Resort’◦ Allows for Creative Solutions;

e.g. consider impact, time frame, etc.

Emergency Repair

Provincial Programs◦ Alberta Construction Workers

Effective Feb. 21, 2015, Employers must:◦ Pay $230 compliance fee ◦ Provide an offer of employment◦ Provide specific company information

Effective October 26, 2015 ◦ Must be done via employer portal

Effect of non-compliance◦ Refusal of Foreign Worker’s application◦ Possible other sanctions

√ Require LMIA and Work Permit Requirements Set Out in IRPR s. 203

√ Require Work Permit; LMIA Exempt (IMP) Intra-Company Transferees NAFTA, GATS, CCFTA, CPFTA, CCoFTA Professionals Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other

Work Permit Exempt◦ Business Visitors◦ Other Exemptions

IRPR ss. 186/187

Examples:

◦ Clergy◦ Foreign Journalists◦ Certain Entertainers◦ Emergency Personnel

Originally in FTA/NAFTA, now in broader IRPR

IRPR s. 186(a)/187

International Business activity/not entering labour market

Examples:◦ Buying Canadian products or receiving training re goods◦ Intra-company training◦ Selling not to the general public◦ meetings

Remuneration must remain abroad

Principal place of business must remain abroad

Benefit inures to foreign company

Consider aspects of ‘work’, ‘international in nature’, etc.

‘eTA’ For non-visa nationals travelling to Canada NOT a substitute for consideration of Business Visit vs. Work Permit Effective November 10, 2016 Valid for 5 Years eTA rather than Visa for those with US non-immigrant visa, or who had a

Canadian visa in the past 10 years from:◦ Brazil, Bulgaria, Mexico, Romania

Exceptions:◦ US Citizens (US Permanent Residents Do Need an eTA)◦ Those with Study/Work Permit Issued after August 15, 2015◦ The Queen of England!

Port of entry vs. Visa Post

◦ Visa-Requiring Nationals with US Green Cards can use POE

◦ Traders/investors (even American) must use visa post

◦ Trade off: faster at port of entry, more thorough at Visa Post

◦ Visa Posts use ‘Visa Application Centres’ - issues

Pre-screening

◦ For Port of Entry opinion on non-LMIA (with no peripheral issues, e.g. criminality)

◦ Send application to Immigration Mobility Worker Unit(IMWU – formerly TFWU) Toronto for Ontario and west Montreal for Quebec and east Ensure proper forms depending on IMWU Apply based on where person will be working

IMWU provides opinion

Not binding on POE, but unless there is some major issue on entry, should act as good insurance of validity of non-LMIA cases

Work permit applications are legal procedures

Legal procedures require evidence and legal argument

Besides issues of rules of nature of evidence (e.g. when document should be certified), evidence should be considered to substantiate legal issues in question

Therefore, e.g.:

◦ Intra-company applications must establish Affiliation of companies Applicant’s history with company Applicant’s specialized knowledge or managerial experience Control issues Anything else that may be considered in such an application

◦ Professional applications must establish

Professional qualifications Citizenship Pre-arranged ‘employment’ with Canadian entity Anything else that may be considered in such applications

Evidence: Onus on Applicant

Documentation could include:

Resume Reference letters Company support letters Job description (showing, e.g., training acquired, years of experience, degrees in the field)

Company support letters Publications/Awards Description of Work to be Performed in Canada

Types of documentation to support:

◦ Use common sense

◦ Documentation to support issues in that case, e.g. Pay stubs show work history Corporate shares could show affiliation No limit per se common sense

In addition to the above, of course, relevant forms should be provided depending on situation, e.g.:

◦ IMWU form for Toronto IMWU◦ Application for work permit at visa post

Submissions are what tie facts/evidence/legal issues together

The onus is on you to ensure officer has what he/she needs to make a decision, and to persuade him/her that the applicant qualifies under the relevant provision

Work Permit vs. Visa◦ Notations on work permits◦ Inland (Ottawa) visa processing

Dependents (Work Permits)◦ Spouses anywhere (based on NOC: 0, A, or B)◦ [formerly children in Alberta, Ontario, British Columbia]

Dual Intent

Others ◦ non-immigration issues as well: tax, employment law, etc.

Criminal matters

Misrepresentation:◦ Directly/indirectly Misrepresenting or Withholding Material Facts◦ 2 Year Bar

Previous Unauthorized Work◦ 6 Month Bar for New Work Permit

Failure to Comply – New Rules Effective Dec. 1, 2015

◦ Non-compliance can lead to

Publication on ‘Black List’ (existing)

Inability to Renew LIMAs and Work Permits (existing)

1, 2, 5, 10 Year and Lifetime Bans on Hiring Foreign Workers (new) Formerly 2 Year Bar

Administrative Monetary Penalties (AMPs) up to $100,000 (new)

Inspection◦ there is reason to suspect non-compliance (i.e. a tip was received);◦ previous non-compliance; or◦ random selection [25% chance]

Employer Compliance Review◦ Upon LMIA Application

‘Ministerial Instruction’◦ Information re Violation of Specific LMIA

http://www.esdc.gc.ca/en/foreign_workers/employers/employer_compliance.page#h2.1-h3.4

Three Factors to Determine Penalty:

◦ Type of Offence

◦ History/Severity

◦ Size of Business

Factor 1: Types of Violations◦ Group A: Failure to demonstrate 6 years’ accuracy of work permit Failure to retain necessary documents Failure to comply with Compliance Review

◦ Group B: Failure to comply with applicable Federal/Provincial law Failure to provide foreign worker ‘substantially the same’ wages and working conditions as set out in any

application Failure to fulfill obligations (e.g. transition plan) upon which work permit was based

◦ Group C: Failure to keep workplace free from abuse Failure to establish that company is actively engaged in business under which employment was offered

Factor 2: Consider History/Severity Points

Points are divided into 2 categories:◦ History, and◦ Severity

◦ For History: A or B first violation 1 point A or B violation beyond first 2 points C violations 3 points

For Severity:

Employer derived economic benefit 1-3 points Financial harm to foreign national 1-4 points Abuse of foreign national 1 to 6 Negatively impact on labour market 1-4 points Deliberate attempt to mislead 6 points No attempt to mitigate violation 2 points No attempt to prevent recurrence 2 points Other factors – to be listed 1-6 points

Factor 3: Size of Business

For this, need to distinguish:

◦ Small Business: Fewer than 100 employees, OR Less than $5M in annual gross revenue

‘Including Affiliates’

◦ Large Business : Anything other than a small business

Example: Large company promised to try to hire/train Canadians as part of LMIA application. This is a second offence.

◦ This is a Group B violation◦ History points: 2◦ Severity: Employer derived economic benefit 2 Financial harm to foreign national Abuse of foreign national Negatively impact on labour market 3 Deliberate attempt to mislead No attempt to mitigate violation

No attempt to prevent recurrence 2 7 (Subtotal) Other factors – to be listed

Total: 9

Now (finally), Assess Penalty: 1 point

Type A Small Business $500/No Ban Large Business $750/No Ban

Type B Small Business $750/No Ban Large Business $1000/No Ban

Type C N/A

5 points Type A Small Business $10,000/No Ban Large Business $20,000/No Ban

Type B Small Business $35,000/No Ban Large Business $50,000/No Ban

Type C Small Business $45,000/1 Year Ban Large Business $70,000/1 Year Ban

8 or more points Type A Small Business $100,000/5-10 Year Ban Large Business $100,000/5-10 Year Ban

Type B Small Business $100,000/5-10 Year Ban Large Business $100,000/5-10 Year Ban

Type C Small Business $100,000/5-10 Year Ban Large Business $100,000/5-10 Year Ban

Result:

◦ $100,000 Administrative Monetary Penalty

◦ 5 or 10 Year Ban

◦ Blacklist

◦ Non-renewal of existing work permits

Business licences /permits T2

◦ Schedule 125 Income Statement Information, and,◦ Schedule 100 Balance Sheet Information

Commercial lease agreements, business permits, etc. Provincial/territorial employer and recruiter registration certificate/ licence Recruitment information Anti-abuse and whistle-blower protection policies/Codes of Conduct/compliance policies Training polices and materials Payroll records Time sheets Pension and benefits enrollment documents Job descriptions Copies of work permits Documentation in relation to job creation, job retention, training or transfer of skills and knowledge, and Registration with provincial/territorial workplace safety/Workers compensation clearance letter

Create policy to ensure that Foreign Worker Program is used only where necessary, (and follow all procedures in that regard)

Implement a training plan documenting knowledge/skills transferred to Canadians by TFWs Appoint an Internal Compliance Officer accountable for, e.g.:

◦ Maintaining recruitment procedures◦ Maintaining records and ensuring compliance in relation to changes in employment terms◦ Verifying company support documentation◦ Developing document retention practices◦ Developing third party/vendor management polices

Establish corporate protocols to respond to requests for Inspections and Compliance Reviews Maintain files containing key foreign worker information, document retention protocols, and centralized

storage and retrieval processes (be prepared for timely ECR and Inspection response) Develop/circulate internal communications on anti-abuse or other compliance policies, as well as on

whistle-blower processes to encourage credible reports from employees relating to complaints of abuse and the prompt and fair resolution of any complaint

Employers’ Due Diligence Requirement:

◦ Employing a Foreign National Without Authorization 2 Year Imprisonment/$50,000 Fine

Aiding/Abetting/Counselling

◦ 5 Year Imprisonment/$100,000 Fine

Citizenship and Immigration Canada◦ www.cic.gc.ca

NOC◦ http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/Welcome.asp

Wages◦ www.jobbank.gc.ca

ESDC Foreign Worker Program◦ http://www.esdc.gc.ca/eng/jobs/foreign_workers/index.shtml

Benjamin A. Kranc

425 University AvenueSuite 200Toronto, Ontario M5G 1T6Tel: (416) 977-7500E-mail: bkranc@kranclaw.comWeb: www.kranclaw.comTwitter: @kranclawLinkedIn: ca.linkedin.com/in/benjaminkranc

Canadian Corporate Immigration____________________________Understanding and Navigating the System