Corpimmig.Summary.Dec2014 - Corporate Immigration Law

CORPORATE IMMIGRATION ADVOCACY SUMMARY FINAL EXAM 2014 When seeking immigration advice, the corporate client will need an indication as to: 1) 2) 3) 4) The degree of success for incoming applications The steps involved Pitfalls Costs The rule of thumb is to keep your client on the phone and advise them on the spot. Do not call back. Make the pitch within the first ten minutes. The role is to work between alternatives, and thus to give binary options. Threshold questions will hover on the following spectrum: < -----------------------------------------------------------------------------------------------------------------------------------a? TRV - Medicals - Business Visitor - Work Permit - LMIA - C12- C-10- Inadmissibility - PR (Express entry)- FSW - CEC - PNP- PR Card - Citizens - Forms - Ethics Key Preliminary Questions Include: 1) Whether applicant has family members 2) Where the person lives now and where they have lived in the last year 3) Is the foreign worker overseas or inland? (Inland go through Employment and Skills Services Canada, whereas overseas aps go through CIC) The temporary foreign worker units are currently in Calgary and Ottawa. These units may not always be valuable with respect to the pre-examination services they offer. Changes from June 2014 have turned LMOs into Labour Market Impact Assessments (LMIAs) which are completed by Service Canada, and are entirely employer driven. There are 7 Ministerial discretions that deal with criteria for processing. The question is whether Parliament intended to legislate by Ministerial instruction. Three important sources for finding answers to these immigration questions: 1) The IRPA Regs - visas 2) IRPA for inadmissibility 3) Temporary Foreign Worker Manual - all WP, TR categories PART I: [A] TEMPORARY ENTRY INTO CANADA T Temporary residents are captured within sections 179 and 190 of the IRPA Regulations (Part 9). The framework for the TRV scheme can be summarized through the following questions: QUERY What nationality is the individual? LEGAL SOURCE Reg 190 Reg 30 PURPOSE There are exemptions for medicals and visas based on these regulations. 1 CORPORATE IMMIGRATION ADVOCACY SUMMARY FINAL EXAM 2014 Is the person visa exempt? Reg 190(1) and (2) and (3) TIMING AND LOCATION: Governs where the application is filed. If visa is required, an overseas office must be used for processing. If not, one only needs proper identification/citizenship at POE. NOTE: PRs from the US can come to Canada without a visa (only country in world with PR exemption). (1) speaks to countries that are exempt (2) speaks to types of FN like those from Hong Kong, Israel, Holy sea, diplomat, etc that are exempt (3) agreements btw CDA and other countries, transit as a member of a crew (other than vessel) Is this person medically exempt? Even if one is TRV exempt, a business letter from the employer indicating that the person is 1) not remunerated in CDA 2) profits remain outside CDA 3) salary paid outside CDA will do. KPMG vets these letters with templates and legalese for employers. Some may even get visitor records detailing entry times and date at POE. Reg 30(1)(b): Exemptions for medical examinations1 CDA can examine anyone that is from a medically designated country. The question is whether they reside or sojourn somewhere. Exams apply to anyone coming for 6 mo or more, and for anyone who has sojourned/resided in a designated country with a higher incidence of communicable disease for 6 consecutive months in the year immediately preceding application by 1 year. Note: only applications made outside Canada require medicals. Reg 34: Assessing what could be a danger to public health (reports, communicability of disease, impact on CDNs) Med Exams required where: occupations bring you in close contact with people and there is a risk of exchanging bodily fluids, health services, teachers of primary/sec schools, domestic workers/live-in caregivers, in home care to children, elderly or disabled, day-nursery employees (9.1 TFWM) S. 9 of TFWM Coding structure for medical exams - M1 - 6 (M1, you're in, 3 observation, 5 out) - 9.9 TFWM What is the purpose of the trip? Where someone changes categories, they must submit new medicals. Sometimes, if it's less than a year old, an officer may still use those medicals, despite the change in categories. Exception for change in category medical requirements are for TRs and PRs. Reg 186 - exemptions for WP Determines the type of application required. Ask about responsibilities and activities. Generally, 1 See Med Exam details here: http://www.cic.gc.ca/english/information/medical/dcl.asp 2 CORPORATE IMMIGRATION ADVOCACY SUMMARY FINAL EXAM 2014 where there is no nexus with the work to Canada, no WP is req'd. Reg 187 - Business visitor (definition) 186 Exemptions: foreign reps (and families), military personnel, foreign government officers, on campus employment, some performing artists (p 35 TFWM), athletes and team members (spouses eligible for LMO exempt work under R 205(c)(ii)), news reporters/media crew, some media crews for promotional tours as long as they're not entering labour market (Assess on R205(a): significant benefit), public speakers, convention organizers, clergy (assess on R 200 at POE; where not described in reg, require LMO and WP; R 205 doesn't apply), judges/refs (international amateur sports competitions; professional sports require LMO and WP except for those with reciprocal arrangements for CDN referees), examiners and evaluators (e.g. profs who review or examine programs), expert witnesses or investigators, health care students (no more than 4 months unpaid), civil aviation inspector, crew, aviation accident/incident inspector, emergency service provider, implied status under expired WP so long as app is in Can apply for a WP at the POE upon entry if you're exempt from a temporary resident visa under 190. 186(1)(u): If your WP has expired and you've remained in CDA and have continued to comply with conditions (IMPLIED STATUS) 186(1)(v): full time student; work no more than 20 hrs per week during regular academic session 186(w): applied for WP after completing studies along w/study permit People who can apply for WP on entry at POE R 198 When you shouldn't apply at the POE R 198(2) Applying for WP inside Canada R 199 You cannot apply for WP at POE if you require an LMIA, unless you have an offer of employment (but seasonal workers and live in caregivers don't benefit from this), or you're a PR or citizen of US, resident of Greenland/St. Pierre/Miquelon. Can't apply at POE if you don't hold a medical certificate or you're from the international youth exchange program (unless with IYEC you are a national or PR of US or you're WP app was approved before coming to CDA). Persons applying for secondary employment who are here without a WP, holders of WP or study permit, TRPs for minimum of 6 months, refugee claimants and persons subject to unenforceable removal order, in Canada PRs under spouse, live in caregiver, protected and H&C, persons whose WP was issued abroad but they haven't received it, trader or investor, intra company transferee or professional under NAFTA, hold a written statement from DFTAIT re: working at a foreign mission in CDA 3 CORPORATE IMMIGRATION ADVOCACY SUMMARY FINAL EXAM 2014 NO WP REQUIRED: BUSINESS VISITORS (TFWM P30) General BV Requirements Reg 187(1): anyone who seeks to engage in international business activities in Canada without directly entering the Canadian labour market. * 187(2): (a) FNs purchasing CDN goods or services for foreign business or government, or receiving training or familiarization in respect of such goods or services (ex. MNC) * (b): FNs receiving or giving training with CDN parent or subsidiary of corporation employing them outside Canada, if any production of goods or services that results from training is incidental * this provision covers persons entering Canada to provide familiarization or training services * (c): FNs representing a foreign business or government for purpose of selling goods for that business or government, if FN is not engaged in making sales to general public in CDA. * 187(3): for the purposes of subsection (1), a FN seeks to engage in intl business activities in Canada without directly entering the CDN labour market if SS? (a) the primary source of remuneration for the business activities is outside Canada SS? (b) the principal place of business and actual place of accrual of profits remain predominantly outside Canada BV REQUIREMENTS: Must be no intent to enter CDN labour market (no gainful employment), must be international in scope, and there is a presumption of FN where the primary source of remuneration is outside CDA, the principal place of worker is outside CDA, and accrual of profits of employer is outside CDA. Business cards, pamphlets and supporting documents from visitor's parent company and letter of invitation from host are key. These transactions can be complicated and require you to ask complicated questions. Be sure that you understand the structure of the corporation and where the business is flowing. For example, coming here to learn expertise renders you a BV, but when there is a contractual transaction, the nature of the your meeting changes because a service is provided and one is being remunerated, which requires a WP. Examples of BVs: 1) Board of director meetings 2) Full time employees of short term temporary residence (e.g. nanny or personal assistant - falls under 187(3)) 3) Employees of foreign companies contracting Canadian companies TYPE (a): BVs Giving or Receiving Training RBC is active in the Caribbean in this respect, and TD along the eastern seaboard of the US. Training must be hands-on and the production of goods has to be incidental. Anything with more than 2-3 weeks of visiting should be supplemented with a detailed training plan. 4 CORPORATE IMMIGRATION ADVOCACY SUMMARY FINAL EXAM 2014 TYPE (b): After Sales/lease services are included. This includes situations where a CDN has purchased a product developed or manufactured outside of Canada, and the K says that the seller (the foreign company) will provide an after-sale service. Those individuals can come as BVs. If the training is given at another location providing services other than CDN business, WP required. Hands on work/construction work is not included. Key is to look at the contract and the types of service it enumerates. The service must be negotiated as part of the original sales or lease/rental agreement. After service includes situations where a service person coming to Canada will install, configure, or give training on the upgraded software, as long as the sales activity is clearly articulated in the agreement or purchase order. A sales agreement or purchase order for upgraded software is a new contract for a new product. Service personnel performing work on equipment that is out of warranty or where no service contract exists continue to require an LMO and a work permit. However, where a foreign company sells a product to a CDN affiliate and it's sold to another CDN company through the original sales agreement, this is considered an after sales agreement and can create BV status. Third party service contracts after signing of sales or lease agreement are not covered by WP exemption. Where the work is not covered under a warranty, a WP and LMIA is required, the idea is that the service cant deal with infrastructure - it has to be specialized work (Ex. machinists have to be specialized). This exemption covers supervisors (1 supervisor can be expected to supervise 5-10 installers), intra company transfers and trainees. All BVs coming in under after-sales agreements for more than 2 days must be documented on a visitor record. NAFTA Professionals and Other Service Provider = No exception Where a CDN contracts services from a foreign company, and the FN comes to CDA, a WP is required. This often happens with NAFTA. The service provider is not a BV just because they're not getting paid by a CDN source. There is a labour market entry by virtue of the contract. Under NAFTA, if a CDN service can't provide services and US services as a conduit, there's an exception for a BV. [A] WORK PERMITS (DIVISION 2, R. 197 IRPA) Program is divided into the International Mobility Program (R. 204-208) and the Temporary Foreign Worker Program (R 203). The former does not require an LMIA, while the latter does. The idea was to divvy up the responsibilities between the departments which took effect in June 2014. * Even if you're visa exempt, you can still apply for a WP any time as a FN before coming to CDA (R 198) 5 CORPORATE IMMIGRATION ADVOCACY SUMMARY FINAL EXAM 2014 * * Any one coming to CDA on a WP should obtain an LMIA (R. 200) beforehand, unless they are exempt based on an enumerated category - this is a process whereby employer proves that no CDN can do the job - unless they can be categorized under the global mobility program The key is to inquire into whether an LMIA exception can be found because the application can be time consuming and labour intensive otherwise R. 198(2): Applying for WP at POE or otherwiseyou can apply at POE if: you have an offer of employment (Except for caregivers and seasonal workers), you're a citizen or PR from the US, or a resident of Greenland, St. Pierre or Miquelon you cannot apply for WP on entry if: you don't hold a medical certificate you're required to hold under 30(4), or you're in the international youth exchange program (unless you're from the US) R. 200(1): Officer shall issue WP to foreign national if, following examination: 1) FN applied in accordance with Act 2) FN will leave by end of period authorized for stay 3) FN is one described in R 206, 207, 208 (exemptions to LMIAs) 4) Intends to perform work in R 204, 205 and has an offer of employment to perform that work and an officer has determined, on the basis of any info provided that o (A) offer is genuine o (B) employer has o (I) offered wages and job that are substantially the same as, but not less favourable than those set out in the offer, OR o (II) is able to justify under 203(1.1) any failure to satisfy criteria set out in subclause (I) 5) Requirements of 30(2) and 30(3) are made out R. 200(2): No need to prove that you will leave when required if you're seeking refugee protection or are under removal order - see 206 or 207(c) or (d) (WP issued if FN has made refugee claim and is subject to unenforceable removal order) R. 200(3): An officer shall not issue a WP if: (a) There are RG to believe that the FN is unable to perform the work sought (b) In the case of a FN who intends to work in the province of QC who doesn't have a Certificate of Acceptation (c) Work that FN intends to perform is likely to adversely affect settlement of any labour dispute in progress (d) FN seeks to enter CDA as live in caregiver and does not meet 112 requirements (e) FN has engaged in unauthorized study or work in CDA and failed to comply with condition of previous permit or authorization UNLESS i. a period of 6 months elapsed since cessation of unauthorized work or study or failure to comply with condition ii. study or work authorized by reason that FN didn't comply with conditions under 185(a) (period of authorized stay) iii. section 206 applies to them (WP can be issued where FN has no other means to support themselves if they've made a claim for refugee protection or are subject to removal order) iv. FN subsequently issued TRP under 24(1) (f) Issuance of WP would be inconsistent with fed-prov agreement applying to FNs (g) Work totals 4 yrs unless 6 CORPORATE IMMIGRATION ADVOCACY SUMMARY FINAL EXAM 2014 a. 48 months have passed since you accumulated four years b. you can prove significant benefit to CDA (social, cultural or economic) c. work under international agreement 200(4): Period of work in CDA by a FN shall not be included in calculation of 4 yr period if work was performed during period in which FN was authorized to study on a full time basis in CDA. 200(5): Factors going to genuineness of job offer (a) whether offer made by employer that is actively engaged in business in respect of which offer is made (b) whether offer consistent with reasonable employment needs of employer (c) past compliance of employer R. 203(1) (WPS REQUIRING LMIA) Factors that go into the assessment of an LMIA employment offer: (a) job offer is genuine (b) neutral or positive effect on labour market (c) not inconsistent with federal-provincial agreement for employment of FN (d) in case of a caregiver that adequate accommodations are provided, and sufficient financial resources to pay wages (e) the employer (i) during the period beginning 6 yrs before opinion requested from ESDC ending from day on which WP received, provided each FN with wages and working conditions that were substantially the same as but not less favourable than those set out in offer OR (ii) is able to justify under (1.1) ANY FAILURE TO SATISFY CRITERIA IN (i) PRACTICAL: If you are in breach of any of these provisions, your WPs and LMIAs can be cancelled (1.1) Justification: failure to satisfy (203(1)(e)(i) is justified where it results from (a) a change in federal or provincial law (b) a change to the provisions of a collective agreement (c) implementation of measures by employer in response to dramatic change in economic conditions that directly affected business of employer, provided that the measures were not directed disproportionately at FNs (d) error in interpretation made in good faith where employer subsequently provides compensation or made efforts to do so (e) unintentional or administrative error made by employer - if subsequently provided compensation or if it was not possible to provide compensation, made sufficient efforts to do so (f) circumstances similar to those in (a)- (e) (g) force majeure PRACTICAL: This is a key provision if your client has made an error. You can mitigate this by listing a wage plus a potential bonus in your ad to make sure that you don't misrepresent to the public. R. 203(3): Factors for determining effect on labour market: direct job creation, development or transfer or skills, fill labour shortages, wages offered are consistent with prevailing wage for occupation and working standards are met, whether employer hired or trained CDNs or PR, whether employment of FN likely to adversely affect settlement of labour dispute, whether employer has fulfilled or made reasonable efforts to fulfill comments made 7