The Comprehensive Economic and Trade Agreement (CETA) between Canada and its second-largest trading partner, the European Union, took effect on Sept. 21, 2017.
As is the case with Canada’s other free trade agreements, CETA contains provisions governing the ability of European citizens to enter Canada to work without a permit (as business visitors), as well as the possibility to obtain work permits that are exempt from a Labour Market Impact Assessment (LMIA). The LMIA is a mandatory step for many employers, who must demonstrate that there is a need for a foreign worker. In most cases, they will need to prove that there is shortage of local talent available to take the job.
CETA’s immigration provisions are found in Chapter 10. Some provisions are similar to those in other free trade agreements, while others are new. The duration of the authorized work will vary depending on the category, and there are certain exceptions to CETA provisions that vary depending on the EU member state (as listed in Annex 10-B).
With respect to business visitors, CETA expands on the options available to work without a work permit under ss. 186(a) and 187 of the Immigration and Refugee Protection Regulations. Those who are not eligible under the regular legislative provisions can rely on the list of prescribed activities that qualify as business visits under the agreement. Some of the scenarios are already found in other free trade agreements, such as “meetings,” “research and design” and “after-sales or after-lease services.” There are, however, new activities not listed elsewhere, including “training seminars,” “trade fairs,” “purchasing,” “commercial transactions,” “tourism personnel,” and “translation and interpretation."
The agreement also introduces a second category of business visitors: business visitors for investment purposes. This would comprise European employees in managerial or specialist positions who are responsible for setting up a company but do not engage in direct transactions with the general public and will not receive direct/indirect remuneration from a Canadian source.
It is noteworthy that a business visit under CETA cannot exceed 90 days in any six-month period. As a result, the agreement’s business visitor provisions should only be relied on if a client does not qualify under ss. 186(a) or 187 of the regulations.
In addition to business visits for investment purposes (without a work permit), CETA also contains provisions dealing with LMIA-exempt work permits for investors. These are issued for up to 12 months, though they may be extended at an officer’s discretion.
Investor work permits are available to those making an investment themselves or to those who will establish or administer an investment in a supervisory or executive capacity. CETA investor applications should be assessed using the investor guidelines found in the North American Free Trade Agreement (NAFTA).
Intra-company transfers (ICTs) — referred to as intra-corporate transfers in the agreement — are also included in CETA. While these work permits are possible outside of free- rade agreements, following the authority of s. 205(a) of the regulations, CETA expands the positions under which a company can transfer an employee.
The agreement provides that European employees who have worked for an EU company for at least one year can be transferred to a position in Canada that involves either senior personnel, specialists or graduate trainees.
Senior personnel under CETA should be processed following the rules of “executive” positions under NAFTA and specialist positions following the rules of “specialized knowledge."
Graduate trainee transfers are not permissible under s. 205(a) of the regulations and are only found in free trade agreements between Canada and Peru, Colombia and South Korea (although in those treaties, they are restricted to management trainees). As a result, this is worth exploring with European clients who are university graduates and are temporarily being transferred to a Canadian company for “career development purposes or to obtain training in business techniques or methods."
ICT work permits under CETA are of a shorter duration than usual. Senior personnel and specialists can enter Canada for up to three years, with a possible extension of up to 18 months. Graduate trainees can enter for up to one year. Spouses of several European ICTs are also eligible for an open work permit under CETA, should they not be otherwise eligible for one.
Lastly, CETA also contains provisions regulating LMIA-exempt work permits for listed professions. However, unlike most free trade agreements, eligible individuals are not those who have been offered employment by a Canadian company, but rather contractual service suppliers and independent professionals. In this regard, the categories for professionals under CETA are most similar to those under the Canada-South Korea agreement.
Contractual service suppliers are employees of an EU company contracted by a Canadian to supply a service. Independent professionals are self-employed individuals with a contract to supply a service to a Canadian. Entries under either category cannot exceed 12 months in any two-year period. Extensions are limited but may be possible at an officer’s discretion.
The list of services sectors that qualify under CETA can be found in Annex 10-E, and it varies between contractual service suppliers and independent professionals. As with other CETA provisions, Annex 10-E also varies by EU member state.
This should serve as a warning that although CETA introduces a whole new range of possibilities, some provisions are rather complex, which would be expected of a multi-party agreement of this magnitude.
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.