The Logistics of Doing Business in Canada: Temporarily Moving Service Exporters Across the Border

Transcription

1 The Logistics of Doing Business in Canada: Temporarily Moving Service Exporters Across the Border Thursday, January 30, :00 2:00 pm Eastern Standard Time U.S. Commercial Service Connecting you to global markets

2 The U.S. Commercial Service Agency: U.S. Department of Commerce Mission: Promote U.S. Exports Protect U.S. Commercial Interests Abroad Facilitate Investment in America Resources for Companies Overseas: Counseling Fair and Open Markets

3 The U.S. Commercial Service Specialists assist American companies in export goals by identifying promising new markets and establishing contacts in foreign contracts In 2009, assisted 5,600 companies with increasing exports 85% were small to medium size The U.S. Commercial Service has a global network of trade specialists located in 109 U.S. Cities 128 U.S. Embassies and Consulates in 77 Countries Market expert specialists Tailored assistance Export success

4 Some areas may have more than one office Our Domestic Presence Over 100 Export Assistance Offices in the U.S.

5 Some areas may have more than one office Our Overseas Presence

6 Webinar Agenda Welcome Tracey Ford, Commercial Specialist, U.S. Embassy Ottawa Introduction Doug Jacobson, Deputy Principal Commercial Officer, U.S. Consulate Toronto Temporarily Moving Service Exporters Across the Border From Perley-Robertson, Hill & McDougall LLP/s.r.l: Warren L. Creates, Head of Immigration Law Group Rovshan Hajiyev, Immigration Law Group Manager Jacqueline Bonisteel, Associate Lawyer Question & Answer Doug Jacobson, Deputy Principal Commercial Officer, U.S. Consulate Toronto

7 Temporarily Moving Service Exporters Across the Border Into Canada: The Immigration Considerations U.S. Commercial Service Webinar Series The Logistics of Doing Business in Canada 30 January 2014 Warren L. Creates, B.A., LL. B. Certified Specialist in Immigration Law Perley-Robertson, Hill & McDougall LLP www.

8 Perley-Robertson, Hill & McDougall LLP/s.r.l Immigration Law Group We represent both individuals and corporations in all aspects of immigration and emigration including complete representation and arrangement of all documentation for skilled workers, business immigration programs, citizenship applications and work permits. Jacqueline Bonisteel, M.A., J.D. Associate Lawyer Warren Creates, B.A, LL.B. Head of Immigration Law Group Rovshan Hajiyev Immigration Law Group Manager

9 Presentation Outline 1. Canadian work permits and exemptions 2. NAFTA work statuses 3. Tax implications 4. Ensuring a successful application 5. Questions?

10 Canadian Work Permits Top Source Countries of Foreign Workers ( )

11 Who Needs a Work Permit in Canada? Anyone who, being a foreign national, engages in any activity for which wages are paid, for which commission is earned, or which directly competes with the Canadian labour market.

12 Jobs Not Requiring a Work Permit Athletes and coaches Aviation accident or incident investigators Business visitors Civil aviation inspectors Clergy Convention organizers Crew members Emergency service providers Examiners and evaluators Expert witnesses or investigators Family members of foreign representatives Foreign government officers Foreign representatives Health-care students Judges, referees and similar officials Military personnel News reporters, film and media crews Performing artists Public speakers Students working on campus ** Note that not all workers in these categories will be exempt. Consult the more detailed job descriptions. **

13 General Work Permit Requirements: Applicants Outside Canada or Upon Entry to Canada Job offer from a Canadian employer Positive Labour Market Opinion (LMO) if not LMO-exempt Satisfy basic entry requirements No visa requirement for U.S. citizens

14 Compliance with Work Permit Requirements Job must fit confines of approved LMO (job description, employer, pay etc) Rigorous enforcement since 1 April year prohibition from hiring temporary foreign workers for employers who have failed to meet their commitments with respect to wages, working conditions, occupation Temporary foreign workers can work for a maximum of 4 years in Canada, followed by a period of 4 years of ineligibility to work in Canada

15 LMO-Exempt Categories Workers covered under international agreements (NAFTA) Workers, their spouses/common-law partners or their dependants who are eligible for a work permit through an active pilot project (eg. Brain Gain Ontario) Provincial Nominees Entrepreneurs and Intra-company transferees Participants in exchange programs Spouses Certain academics and students Charity/Religious workers Others (eg. Refugee claimants)

16 NAFTA Transfers to Canada

17 Categories: 1. Business visitors NAFTA Workers 2. Professionals (list of 63: eg. accountants, engineers, management consultants) 3. Intra-company transferees (managerial, executive, specialized knowledge) 4. Traders and investors LMO-exempt Must comply with general provisions on temporary entry similar provisions under GATS

18 NAFTA Business Visitors Allowable activities: R&D Growth, manufacture and production Marketing Sales Distribution, Purchasing Negotiations Meetings/Conventions/Conferences General Service After-Sale Service

19 Business Visitor (cont d): General Service Professionals engaged in a business activity under NAFTA but not receiving salary or other payment from a Canadian source Management, supervisory personnel, financial services personnel, public relations and advertising personnel, tourism personnel, tour bus operators, translators/interpreters

20 Business Visitor (cont d): After-Sales Service Definition: installation, or repair, or servicing of commercial or industrial equipment or machinery, or computer software Applies to installers, repair and maintenance personnel, and supervisors (not building or construction) Specialized knowledge essential to seller s contractual obligation Performing services or training workers to perform services Pursuant to a warranty or other service contract incidental to sale (key!) Goods/services purchased from an enterprise located outside Canada

21 Business Visitors (cont d) Requirements: Not entering Canadian labour market Evidence that proposed business activity is international in scope Evidence that primary source of remuneration for proposed business activity is outside Canada Profits of business accumulated primarily outside Canada Proof of citizenship (i.e. passport) Documentation describing the purpose of entry

22 Business Visitors (cont d) One year maximum per trip, at officer s discretion Apply at Canadian Port of Entry Can seek entry for a number of regular business visits

23 NAFTA Professionals List of 63 professionals who receive preferential treatment e.g., engineers, computer systems analysts, most scientists, most medical professionals, accountants, economists, management consultants Must meet education and experience requirements of the profession Almost all on the list require a university degree or other post-secondary credential Must have a job offer or contract before applying for work status (can t be self-employed)

24 NAFTA Professionals Documentation must prove both credentials and professional-level duties Up to 3 year work status, renewable, no cap/limit Open to citizens of U.S. or Mexico (not permanent residents) Apply at Canadian Port of Entry or Consulate

25 NAFTA Intra-Company Transferees Managers, executives and specialized knowledge workers Transfer to parent, subsidiary or affiliate Must have worked for 1 full year within previous 3 years for parent, subsidiary or affiliate in U.S. or Mexico Apply at Canadian Port of Entry or Consulate 5 year cap for specialized knowledge workers, 7 years for managers/executives

26 NAFTA Intra-Company Transferees What is Specialized Knowledge? Special knowledge of the company s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or expertise in the organization s processes and procedures. beyond the ordinary and not commonplace within the industry or the petitioning organization In other words, the employee must be more than simply skilled or familiar with the employer s interests. Strictly interpreted!

27 NAFTA Traders and Investors TRADERS Carrying on substantial trade in goods or services between Canada and U.S. Over 50% of total volume of international trade must be between Canada and the U.S. or Mexico INVESTORS Investing, or actively in the process of investing, a substantial amount of capital in a bona fide enterprise in Canada Must have at least 50% ownership of enterprise or possess operational control through a management position or other corporate device

28 NAFTA Traders and Investors (cont d) Applicants must be acting in an executive or supervisory capacity, or one which involves essential skills Must apply to a visa office outside Canada Maximum initial stay of 2 years; extensions in 2-year increments (no maximum) Must maintain intention to depart Canada KEY: Visitor must be acting in a capacity that is supervisory, executive or involves essential skills.

29 Tax Considerations Canada-U.S. Treaty exempts U.S. employees from taxation and filing personal income tax returns in Canada so long as: Employee present in Canada for no more than 183 days in 12-month period Remuneration paid by non-resident employer Remuneration not borne by Canadian employer

30 Tax Considerations Where employee earns less than $10K in Canada: De minimis exemption to Canadian income tax Still no automatic waiving of income tax withholdings from a non-resident employee s salary Employer needs to apply for a CRA waiver and file a T4

31 Tax Considerations Where employee earns more than $10K in Canada: Key question: Does the employer have a Permanent Establishment (PE) in Canada? Fixed place of business Dependent agent habitually concluding contracts in Canada Individual present in Canada for 183 days or more If no PE, then can file detailed waiver application If PE and salary borne by PE, employee subject to taxation in Canada

32 Ensuring a Successful Application

33 Canada s Basic Entry Requirements All temporary entrants must meet the following basic entry requirements: Have valid travel document, such as a passport Have enough money for stay and return home Proof of intent to leave Canada at the end of visit No criminal, security or health risks to Canada

34 Documentation Bullet-proof the application Bricks and mortar/credibility Proof of citizenship Company information Employee information Duties/functions/responsibilities of worker Educate the travelling worker Consistency, reliability, credibility, plausibility

35 The Job Offer Important Contents of Job Offer: Job title Description of the job List education, skills and experience needed Job start and end dates Details of salary and other forms of compensation Name/address of the employer, and where foreign worker will be working Contingent on obtaining work permit

36 Inadmissibility Criminal Medical (public health, public safety, excessive demand) Misrepresentation (immigration fraud)

37 6 COMMON REASONS FOR FAILURE/DELAY 1. Delay in Preparing and/or Filing 2. Documentation Deficiencies 3. Bricks and Mortar Missing 4. Employers Do Not Understand the Rules 5. Employees Do Not Understand the Rules 6. Issues/Complications With Family Members

38 1. DELAY IN PREPARING/FILING Lack of thorough understanding of program requirements Failure to obtain proper supporting documents early enough Plan ahead/do not procrastinate.

39 2. DOCUMENTATION DEFICIENCIES Wrong forms. Incomplete forms or letters of support. Supporting documents missing. Inaccurate/inconsistent information. Detail is lacking. Credibility is lacking. Poorly/unprofessionally prepared. Translations of documents not done/poorly done.

40 3. BRICKS AND MORTAR MISSING There must be a thread, better still a rope, of consistency, reliability, and plausibility throughout the application. I call it the bricks and mortar.

41 4. EMPLOYERS DO NOT UNDERSTAND THE RULES Seeking approval for a case that does not qualify. Seeking approval from the wrong authority or office. Employers who underestimate or misunderstand the process.

42 5. EMPLOYEES DO NOT UNDERSTAND THE RULES Lack of briefing of employees on the standard of review (ie. the threshold). Everyone must sing from the same sheet.

43 6. FAMILY MEMBERS Who wants to come? When do they want to come? What do they want to do? What is their profile? Are they inadmissible?

44 Problems at the Border Call your lawyer! May be required to go back and fix deficiencies May be granted an alternative shortterm status (e.g. Visitor)

45 SQUARE PEG IN A ROUND HOLE Applicant = PEG Visa Criteria = HOLE Immigration Lawyer = Carpenter

46 Thank You! Questions? Warren L. Creates, B.A., LL.B. Certified Specialist in Immigration Law Perley-Robertson, Hill & McDougall LLP 340 Albert Street, Suite 1400 Ottawa, ON K1R 0A5 www

47 Thank you for participating