Do I need a work permit: Business Visitors vs. Work Permit Holders

Ever receive that dreaded call from an employee or contractor standing at the border? The person at the border says “I have a meeting in an hour and the immigration officer says I need a work permit. I think he might send me back.” Not only is this an unfortunate situation, but it’s a preventable one as well. With proper business travel screening and planning you can ensure that business travellers are prepared with the information and knowledge they will need to ensure their entry into Canada.

Section 187 of the Immigration and Refugee Protection Regulations (IRPR) determines whether a person entering Canada is a business visitor. Generally, it assesses if the individual’s purpose for entering Canada creates a direct financial or other benefit to a Canadian entity, and whether the activities to be completed challenge the Canadian labour market.

It sounds easy right? Unfortunately, it’s not. The regulation, like many of Canada’s immigration regulations are designed to be flexible, however the flip side is that the provisions also lack clear guidelines and are subject to broad interpretation.

Determination of whether a person is a business visitor often turns on small details and a thorough review and assessment of a business traveller’s circumstances are highly recommended to minimize the risk of refusal at the border.

One of my favorite examples of the importance of small details is that of the auditor. Imagine an international company, headquartered in New York, let’s call it XYZ Corp., hires a US based auditor to complete a global audit. The audit includes XYZ Corp.’s Canadian subsidiary, XYZ Canada. The resulting report is being delivered to XYZ Corp. In this case, the auditor is a business visitor to Canada. However, if XYZ Canada hires the US auditor directly and the report is delivered directly to the XYZ Canada, the auditor would require a work permit.

The difference between these two situations is the entry of the auditor into the Canadian labour market. In the first scenario, the financial transaction is outside of Canada. The payment of the auditor remains outside of Canada and the deliverable of the work product is also outside of Canada. The activity to occur in Canada is a simple fact-finding mission and is considered incidental to the actual business transaction. In the second scenario, the payment for services originates in Canada and the deliverables are destined for Canada. This begs the question, why couldn’t this be done by a Canadian based auditor, and the auditor is therefore considered to be entering the Canadian labour market

The practical reality of the original scenario may be that the cost of the audit is charged back to the Canadian entity and the deliverables will likely be shared with the Canadian entity to identify opportunities for improvement. The net business result between the two scenarios maybe the same, but the structure of the business arrangement make a significant difference, particularly when your employee or contractor is standing in front of an immigration officer at the border.


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