published on 29 September 2017 @ 2:48 pm · COMMENT
CETA: Canada Eases Restrictions for EU Citizens Working in Canada
The Canada-European Union: Comprehensive Economic and Trade Agreement[1] (“CETA”) came into force on September 21, 2017. The agreement includes temporary entry provisions for inter-company transferees, contractual service suppliers, independent professionals, short-term business visitors, and investors. Citizens of EU member states who qualify under one of these categories are exempt from the requirement to obtain a Labour Market Impact Assessment.
Currently, the following 28 EU member states qualify under CETA: Austria, Belgium, Bulgaria[2], Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania[3], Slovakia, Slovenia, Spain, Sweden, and United Kingdom.
CETA’s temporary entry provisions may be divided into the following categories:
- Inter-Company Transferees
- Contractual Service Suppliers and Independent Professionals
- Investors
- Business Visitors
Inter-Company Transferees
The CETA inter-company transferee provisions allow citizens of EU member states to obtain work permits in order to transfer to a subsidiary, branch or parent company in Canada and vice versa. The foreign national must have been employed by an enterprise located in an EU member state for at least one year prior to the transfer.
Intra-company transferees may qualify under one of the following three categorie
1. Senior Personnel are employed in a senior position within an EU enterprise, and are responsible for: (i) primarily directing the management of the enterprise, a department, or sub-division of the company; and (ii) exercising wide latitude in decision making, which may include having authority to personally recruit, dismiss, or take other personnel actions.
Senior personnel receive only general supervision or direction from higher level executives, or supervise and control the work of other professional employees and exercise day-to-day discretion over company operations.
2. Specialists are employees who possess: (i) uncommon knowledge of the enterprise’s products or services and its application in international markets; or (ii) an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research equipment, techniques, or management.
3. Graduate Trainees must (i) possess a university degree, and (ii) be temporarily transferred to Canada for career development purposes or to receive training in business techniques or methods.
Senior personnel and specialists are eligible for work permits for the lesser of three years or the contract duration, with possible extension of up to 18 months. Graduate trainees are eligible for work permits for the lesser of one year or the length of the contract, with no extension available.
Spouses of EU citizens who are intra-corporate (company) transferees to Canada are eligible for an open work permit for the same duration as their spouses’ work permit.[4]
Contractual Service Suppliers and Independent Professionals
Under this category, contractual service suppliers and independent (self-employed) professionals who seek to supply services in Canada on a temporary basis may be eligible for a work permit. Professionals of either category must be citizens of an EU member state, must be engaged in the temporary supply of services in Canada for a period not exceeding 12 months, and must provide a service in accordance with the Annex 10-E concordance table.[5]
Contractual service suppliers are employees of an EU enterprise that have a contract to supply a service to a Canadian consumer. The EU enterprise cannot have an establishment in Canada. Contractual service suppliers must have been an employee of the EU-headquartered enterprise for at least one year, and must possess three years of professional experience in the activity that is the subject of the contract. The employee may only receive remuneration from their EU employer for the services performed in Canada.
Independent professionals are self-employed professionals who have been contracted to supply services to a Canadian consumer. Applicants must possess at least six years of professional experience in the sector of activity which is the subject of the contract.
In addition to the above requirements, applicants under either category must possess: (a) a university degree or qualification demonstrating knowledge of an equivalent level; and (b) professional qualifications, if required to practice an activity pursuant to the laws or requirements in the province or territory where the service will be supplied in Canada.
Under this category, foreign nationals are eligible for work permits for a cumulative period of no more than 12 months in any 24-month period, or for the duration of the contract, whichever is less. This validity period may only be extended at the immigration officer’s discretion, provided that sufficient evidence is presented to justify the need for extension.
Investors
Investors are defined under CETA as persons who establish, develop, or administer the operation of an investment in a capacity that is supervisory or executive. CETA investor provisions apply to individual investors as well as employees of corporations. In either case, the individual investor or the investing employer must have committed, or be in the process of committing, a substantial amount of capital.
There is no minimum dollar threshold to fulfil the requirement of “substantial” investment capital. Substantiality is determined using a proportionality test, in which the amount invested is weighed against one of the following factors: (i) the total value of the particular enterprise in question; or (ii) the amount usually considered necessary to establish a viable enterprise of the nature contemplated. In all cases, the investment must be significantly proportional to the total investment.
CETA investor work permits may be issued for up to one year. Extensions are only available at the immigration officer’s discretion, if the applicant sufficiently demonstrates the need for the extension.
Business Visitors
Under CETA, short-term business visitors and business visitors for investment purposes may enter Canada for a number of regular visits related to a specific project. Business visitors are work permit exempt, provided that they do not engage in selling goods to the general public, receive remuneration from a source in Canada, or provide services to Canadian consumers[6].
Examples of permissible activities include: engaging in meetings and consultations; receiving inter-company training; negotiating sales agreements and purchasing; and providing after-sales services.[7]
If the applicant does not qualify under IRCC’s general business visitor provisions[8], the maximum length of stay for CETA business visitors is 90 days in any six month period.
For more information, please contact Jacqueline Bart or Annsley Kesten at our office.
Notes:
[1] Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, 30 October 2016, Council Doc. 10973/16, OJ L 329 (entered into force 21 September 2017) [CETA].
[2] Romanian and Bulgarian citizens are not currently considered visa exempt in Canada. They are therefore required to apply for CETA work permits or business visitor status through visa offices outside of Canada.
[3] See above.
[4] CETA, supra note 1 at Chapter 10, Annex 10-F. Note that the ICT spousal provisions do not apply to citizens of the UK or Denmark.
[5] Ibid at Chapter 10, Annex 10-E. Several sectors are excluded under the Independent Professional category, including: medical and dental services; veterinary services; midwifery services; nurse, physiotherapist and paramedical services; and higher education services. However, these sectors are included under the Contractual Service Supplier category.
[6] Except in accordance with CETA, supra note 1 at Chapter 10, Annex 10-D, e.g. after-sales services.
[7] Ibid at Chapter 10, Annex 10-D.
[8] Immigration and Refugee Protection Regulations, SOR/2002-227, s 186(a) and s 187.