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The HR Space | Bulletin

The Comprehensive Economic and Trade Agreement between Canada and the European Union: New Immigration Opportunities | The HR Space

Fasken
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Labour, Employment and Human Rights Bulletin

As a general rule, an employer who wishes to bring a temporary foreign worker to Canada must first obtain a Labour Market Impact Assessment (LMIA) from Employment and Social Development Canada (ESDC). This process takes time and requires that local recruiting efforts be made by the employer before a position may be offered to a qualified foreign national.

However, Canada is a signatory to a number of international agreements that facilitate the admission of foreign workers and provide an exemption from the requirement that an LMIA be obtained. These include the North American Free Trade Agreement (NAFTA) and several bilateral free trade agreements with specific countries (Chile, Peru, Colombia and Korea). The most recent of these agreements is the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, which has been in force since September 21, 2017. CETA provides for five major categories of international mobility that apply to European citizens and enterprises:

(1) business visitors and/or business visitors for investment purposes do not need a work permit and may be admitted at the port of entry for 90 days per six-month period.

To be considered a business visitor in Canada, a citizen of a Member State of the European Union must be engaged in an activity listed in Annex 10-D of CETA.

Eligible activities include services provided by: (a) installers and repair and maintenance personnel who have specialized knowledge relating to industrial or commercial equipment, including computer software, for the duration of the service contract or warranty; (b) suppliers who take orders or negotiate the sale of the supplier's goods; (c) buyers purchasing services for an enterprise; (d) persons engaged in a commercial transaction; and (e) persons who promote their services at trade fairs or who are attending training sessions. In addition, technical, scientific and statistical researchers are considered to be business visitors.

Executives or persons who hold positions where they are responsible for the creation of an enterprise may also be considered to be business visitors for investment purposes if the purpose of their stay is to meet with potential business partners, clients or suppliers in order to start up the commercial activities of an enterprise in Canada. Business visitors or business visitors for investment purposes may not receive remuneration from a Canadian source during their stay, and may also not sell goods or services to the general public during their stay.

(2) investors may be supervisors, company executives, or employees who are authorized to engage in transactions for substantial amounts of capital. They may apply for an initial permit to work in Canada for 12 months.

Unlike the "business visitor for investment purposes" category, the "investor" category refers to individuals who are about to start the commercial operations of an enterprise. Generally, the funds to be invested must already have been committed to the enterprise. Applicants in this category are considered under the investor criteria provided by NAFTA.

(3) intra-corporate transferees include individuals who are senior personnel, managers, specialists, or graduate trainees in the enterprise. Graduate trainee is a new category of intra-enterprise transfer and refers to persons who possess a university degree who are transferred to Canada to a branch, subsidiary or head company of a European enterprise for career development purposes. Graduate trainees may obtain a work permit for a maximum period of 12 months with no possibility of extension. Senior personnel, managers, and employees with specialized knowledge of an enterprise's products or services may obtain an initial work permit for a maximum period of three years, with the possibility of an 18-month extension. A spouse who accompanies the principal applicant is also eligible for awork permit of the same duration.

(4) contractual services suppliers must have a university degree and possess the professional qualifications required to engage in an occupation listed in Appendix 10-E of CETA, with the exception of engineering or scientific technologists. In addition, contractual services suppliers must have three years of professional experience in their industry and must have been employed by the European enterprise for at least one year at the time of the application for a work permit. The person must be paid by the European enterprise.

Note that over 30 sectors of activity covering more than 100 occupations are listed in Annex 10‑E of CETA. However, five specific sectors have not been exempted from the Labour Market Impact Assessment (LMIA) requirement, including the medical sector and postsecondary education, which are therefore subject to the regular LMIA process.

(5) independent professionals (or self-employed persons) must be engaged in a profession listed in Annex 10‑E that applies to that category. This means that not all professions are eligible. The individual must have six years of professional experience in their sector of activity, which may be acquired either autonomously or within an enterprise.

Although there is no employer-employee relationship for the contractual services supplier and independent professional categories, a job offer (services agreement) must be submitted through the immigration portal by the European enterprise, which must also cover the associated compliance fees. The job offer must comply with Canadian laws and meet the usual salary requirements in the sector of activity in question.

If you are a European citizen or enterprise and you fall within one of the five categories of international mobility provided in CETA, you could be eligible to work in Canada on an expedited basis, with or without a work permit.

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