December 31, 2018
The Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) is the latest trade agreement impacting Canadian immigration policy. The CPTPP takes effect as of December 30, 2018 and brings forth an expansion of the International Mobility Program (IMP). This expansion will see new exemptions to the requirement for companies to perform local labour market impact assessments for certain categories of business people.
Work authorization in Canada is granted under two main programs, the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). The new CPTPP exemptions will fall under the IMP program, alongside other trade deals such as the United States-Mexico-Canada Agreements (USMCA) or the Canada-European Union Comprehensive Economic and Trade Agreement (CETA).
Eligible natural persons of the 11-country Asia-Pacific trade agreement signatory parties will receive consideration under CPTPP. At the time of the writing of this article only six (6) countries have ratified the agreement: Australia, Canada, Japan, Mexico, New Zealand and Singapore. Vietnam has also ratified, however the coming into force will only occur in early 2019. The remaining countries yet to ratify CPTPP include Brunei, Chile, Malaysia and Peru. Canada already has existing free trade agreements with Chile and Peru, so the CPTPP will provide an additional layer of categories for their nationals.
The eligible categories include business visitors [as per R186(a) and 187 of the Immigration and Refugee Protection Regulations], Investors, Intra-Corporate Transferees, Professionals and Technicians and Spouses.
As aforementioned, the CPTPP will include business visitors as defined in sections R186(a) and 187 of the IRPR. An important distinction must be made with respect to personnel entering Canada pursuant to the after-sales or after-lease service agreements. The first important distinction is that this specific subcategory is available only to citizens of Australia, Mexico and New Zealand. Citizens of these countries could already enter Canada under the general authorization to work without a work permit, so this will result in little to almost no change.
The second important distinction is that the program delivery instructions provide clarity on the type of eligible personnel and specifically name installers, repair and maintenance personnel and supervisors. It does not specifically contain the provision against hands-on building and construction work, however officers are referred to consult the general guidelines for business visitors when assessing such requests. The expectation is that these individuals will continue to be documented with a Visitor Record, should their stay be required for periods exceeding two (2) days.
Unlike the aforementioned after-sales/lease subcategory, short-term BVs will be exempt from the requirement to obtain a work permit for a variety of permissible activities. The requirement to not enter the local labour market remains, as the primary source of remuneration must be outside Canada and the principal place of business and accrual of profits remain outside Canada.
Specifically, this category only applies to those services in the following activities:
The Investor work permit category will be exempt from a Labour Market Impact Assessment (LMIA) under code T50. It will allow temporary entry to citizens of Australia, Japan or Mexico and to permanent residents of Australia and New Zealand. This new category is an expansion of the existing Investor criteria found under LMIA exemption code T22. The CPTPP serves as an extension to also include the permanent residents of Australia and New Zealand.
Applications can be made for persons establishing, developing or administering the Canadian operation of a foreign entity in either a (1) supervisory or (2) executive capacity or (3) one that involves an essential skill. This category would allow the temporary entry of individuals seeking entry to establish a business, and also temporarily manage the newly-formed entity. The requirement for either the investor, or the enterprise employing that person, to committ a substantial amount of capital remains. Officers are instructed to refer to the NAFTA [sic] instructions for assessment procedures of the above referenced requirements and definitions. Applications made under this sub-category can receive consideration for one (1) year duration, with a possible discretionary extension. Spouses of investors are also eligible for an Open work permit, under new LMIA exemption T53.
Generally, the intra-corporate (also called intra-company, depending on agreement) transferee category is one of the most popular work permit options. Citizens of Australia, Japan, Mexico and New Zealand can benefit from such work permits under CPTPP; permanent residents of Australia and New Zealand can also receive consideration. Furthermore, they must work in an executive, managerial or specialist position (note: the IRCC website lists management trainees on professional development, but this may change).
Regarding specialists (analogous to Specialized Knowledge worker sub-category within GATS) they will only require one of either (a) uncommon knowledge of the enterprise’s products/services or an advanced level of expertise/knowledge of the enterprise’s process and procedures. The main difference is that the requirement under CPTPP only requires one of the two levels of knowledge, while applications made under GATS require both. Additionally, there will be no assessment of the prevailing wage for specialists under CPTPP. This benefit is offset by a shorter work permit time cap, with three (3) year maximums, but open to discretionary extensions.
The general criteria for both professionals and technicians focus on ensuring that foreign nationals get paid no less than prevailing wage for the occupation. The secondary focus is on ensuring that both professionals and technicians meet a certain level of educational and professional competency, in addition to also assessing language ability to perform the job.
As this is an LMIA-exempt category, it falls under the International Mobility Program (IMP). On a practical level, this once again requires the Canadian entity to submit an offer of employment via an Employer Portal account in support of such applications. Similar to CETA, an explanatory note clarifies that submitting such an offer of employment does not establish a typical employee-employer relationship.
For professionals, only those positions listed under level “0” and “A” of Canada’s National Occupational Classification (NOC) code will qualify under this category in certain sub-sectors. For technicians, these occupations will generally fall under NOC level “B”. Professionals must have a post-secondary degree of 4 or more years of study (except for Australia) and must have accumulated at least two (2) years of paid work experience in the sector of the contractual activity to be performed. Technicians on the other hand, must possesses at a minimum a two (2) year post-secondary or technical degree, and four (4) years of paid work experience. A full list of country-specific occupation is available here.
The interesting new requirement is the language requirement criteria, as officers must now be satisfied, that the individual can communicate in either English or French. Considering that the Professionals and Technicians work permit categories apply only to Australia, Japan and Mexico, it is likely this requirement will be more important for applicants from the latter two countries.
As the CPTPP is now in force, new opportunities become available for foreign service suppliers with respect to Canadian work permits. The CPTPP will provide new avenues for obtaining work permits, as well as providing overlapping coverage for existing previous agreements. This will also make matters easier for Canadian employers wishing to hire foreign personnel, thereby avoiding the costs associated with LMIA applications.
Dale & Lessmann LLP invites you to contact our experienced Immigration Practice Group for assistance in determining whether your business could benefit from the new exemptions found in the CPTPP, and what type of work permits could become available for your company.