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Temporary Foreign Workers in Canada

Date

September 16, 2009

AUTHOR(s)

Naseem Malik


You are the Human Resources Director for a Canadian-based company that has affiliates and subsidiaries in numerous countries. One of your responsibilities is to manage the temporary foreign workers employed by your company in Canada. All individuals are subject to Canadian immigration laws that apply to temporary foreign workers, unless they are either a Canadian citizen or a Canadian permanent resident. Under these laws, every person who participates in employment in Canada requires a work permit. The definition of employment is very broad, and most business travellers to Canada fall into this category.

Working in Canada Temporarily: Relevant Considerations

But when do you require a work permit? The Foreign Worker Manual assists in interpreting the Immigration and Refugee Protection Act and Citizenship and Immigration Canada’s policy with respect to temporary foreign workers. According to the Manual, if an individual performs an activity that will result in payment or remuneration, he or she will be considered to be engaging in work. This includes salary or wages paid by an employer to an employee, remuneration or commission received for fulfilling a service contract, or any other situation where a foreign national receives payment for performing a service.

The first step for any employer is to assess whether a foreign-based employee requires a work permit for his or her trip to Canada. Whether the person will be travelling to Canada for two days or two years is not necessarily relevant. What is much more important is the type of activity the person will engage in while in Canada, and the company or people with whom the traveller will interact.

There are some limited categories that exempt the individual from the need to obtain a work permit. These include the North American Free Trade Agreement (NAFTA) Business Visitors and NAFTA After Sales Service Personnel.

Obtaining a Work Permit

If a work permit is necessary for an individual to participate in business activities in Canada, the next step is to determine which category he or she may be eligible under, and where the person is eligible to apply for the permit. This can usually be accomplished by forwarding a copy of the employee’s resume and a detailed description of the proposed activities to your immigration lawyer for consideration.

Once the proper route to apply for the work permit has been established, there are other factors to consider to ensure compliance with Canadian immigration legislation. The employee who is travelling to Canada or being transferred may require a special entry document called a temporary resident visa if he or she is a citizen of a prescribed country such as South Africa or Brazil. This visa must be obtained through a Canadian Consulate in advance and cannot be applied for at the border, otherwise the employee may be refused entry to Canada. This document is required regardless of the purpose of the trip or the duration of the stay in Canada.

Similarly, if the employee has a previous criminal record or serious health problem, he or she may be denied entry to the country. Finally, an individual may be required under certain circumstances to take an "immigration medical examination" prior to travelling to Canada.

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