Trade treaty avoids need to validate employment
Recruiting foreign workers can be arduous for Canadian companies because of the lengthy procedure for validating temporary work applications which entails employers showing that no suitable Canadian is readily available to fill a position. However, as Mitchell Brownstein explains, trade agreements have eased the situation.
FINDING technically qualified and skilled workers and professionals within Canada has often proved difficult.
Fortunately, in recent years, the Canadian government has signed the North American Free Trade Agreement (NAFTA) and General Agreements on Trade and Services (GATS) to honour Canada's international commitment in the area of business and economic development and participation in the international market with an effort to unify our global economy.
The effects of these agreements have been the liberalisation of hiring foreign workers who fall under the appropriate category for their transfer to Canada based on the intra-company transfer exemption.
The general principle of immigration law still applied, namely: any person who wishes to visit or work in Canada who is not a Canadian citizen or permanent resident must apply and obtain a visitor's visa or employment authorization.
When an employment authorization is required, job validation must first be obtained from the Canada Employment Centre (CEC) also known as Human Resources and Development Canada (HRDC).
New regulations based on this signing of NAFTA and GATS waive this difficult requirement of job validation which is of great assistance to the human resource department of any Canadian company.
It should be noted that in addition to these regulations, any foreign worker can be employed in Canada without a job validation provided it can be shown that employing a foreign worker will be beneficial to the Canadian economy and will generate employment for other Canadians.
Transfer of executives, managers and specialists
Under NAFTA, it is possible to make an intra-company transfer between a Canadian company and an American or Mexican company, provided a relationship exists between the companies of the parent, subsidiary branch or affiliate.
It is further required that the employee to be transferred must be a citizen of the United States or Mexico and must have been employed for a period of one year in the last three years.
Employment of such an individual in Canada must be at executive or managerial level or the employee must have specialized knowledge of the company's product or service.
A request for employment authorization under the intra-company transfer exemption can be made at the port of entry or within Canada for an existing company in Canada or to open up a new company in Canada for a period of one to seven years.
Under GATS, intra-company transfers between the Canadian company and a member country of the GATS agreement can be obtained so long as the two companies are related as either a parent, subsidiary branch or affiliate.
Both countries must be doing substantive business in their respective countries and the Canadian company must be engaged in the service sectors agreed upon in the GATS agreement. This is a distinction from NAFTA.
In order to be eligible, a citizen of the member nation must have been employed for one year as an executive, manager or specialist and must be transferred to a similar position in Canada.
Applications for an employment authorization under this category may be made at a visa office abroad or at the port of entry when no visitor visa is required.
The employment authorization is granted for a period of one year and may be extended for a period of up to three years.
It is important to note that in addition to the specific regulations as stated above, top level management, namely, general managers and chief executives, may be transferred under the intra-company executive transfer exemption from any related company around the world to a Canadian subsidiary, parent or affiliate, even if the said executive is not a citizen of a country which is a member of NAFTA or GATS agreements.
Recruiting under NAFTA
Canadian companies may recruit professionals from the United States and Mexico provided professionals are American or Mexican citizens and their profession is listed on the NAFTA occupation list. The employment must be pre-arranged with the Canadian employer.
The employment authorization under this category will be given for a period of one year and can be extended for an additional year.
Professionals recruited under this regulation must be employed in their profession.
For example, an accountant must be hired to work as an accountant, not as a bookkeeper. However if a professional is self-employed in the United States or Mexico, he can work as a self employed individual in Canada and can be hired to provide training in his related profession.
Recruiting under GATS
Any company located in a member nation that has paid a contract to provide service to a Canadian company can send employees to Canada to perform on site work or service for a period of not more than 90 days.
To be eligible, the worker must be a citizen of a member nation of GATS and must be on the GATS occupation list and possess the necessary qualifications and work experience under that occupation.
When required, the qualification must be approved by the Canadian Professional Association and the individual may have to meet provincial licensing requirements.
For more information on this an other programmes concerning immigration to Canada, contact Brownstein, Brownstein & Associates, 1310 Greene Avenue, Suite 750, Westmount, Quebec, H3Z 2B2. Tel: 514-939-9559; Fax: 514-939-2289; E-Mail: brownstein@total.net Website: http://www.brownsteinlaw.com
