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Canadian Immigration Regulations On General Agreement on Trade in Services (GATS)

The GATS - Canadian Immigration regulations where enacted by Citizenship and Immigration Canada because the Canadian government signed a GATS Trade Agreement.

These regulations tend to show a trend for future immigration regulations, which may come into effect in the next few years as global standardization is implemented in international trade under the WTO. GATS immigration regulations are not very widely used by companies operating within Canada or by those companies who wish to operate in Canada and who may also transfer executives and foreign professionals to Canada. There are also many countries that have signed the GATS agreement but who have not enacted immigration regulations in compliance with the GATS agreement (e.g. USA does not have GATS related immigration regulations.)

There are more than 130 countries that are in the process of implementing GATS, providing market access and national treatment for Foreign Service providers in specific sectors.  A company located in any of these 130 nations can take advantage of GATS.

The main purpose of GATS immigration regulations is to facilitate the entry of business personnel, technical personnel and executives of a company located in one of the member nations (e.g. Fiji) to a company located in another member nation (e.g. Canada) with which it is already doing or wishes to do business with, or plans to open a branch office or subsidiary in other member nations.

Canadian immigration regulations under GATS:

Under the GATS regulation of Canada, three types of individuals are allowed to enter Canada.

1. Business visitors;
2. Intra company transferees;
3. Professionals;

The main advantage of the GATS regulation is that individuals who are entering in to Canada as visitors are not required to obtain a “Job Validation” from Human Resources Development Canada (Labour certification from HRDC, which is the labour department of Canada, confirming that no suitable Canadian is available to do the job) and do not need to apply for Employment Authorization at the Canadian visa office abroad. The individuals entering in to Canada as intra company transferees, employees and professionals do not need job validation from HRDC and can apply for Employment Authorization at the Canada immigration post abroad or at the port of entry.

There are separate requirements for each of the above-mentioned categories. However, there are some general requirements for all the three categories. These requirements are:

1. The individual must be a citizen of and must be living in a member country or must be a permanent resident of Australia, New Zealand or Switzerland.

2. The individual should be working in any one of the following service sectors.

i. Business services
ii. Communication services
iii. Construction services
iv. Distribution services
v. Environment services
vi. Financial Services
vii. Tourist and travel related services
viii. Transport Services

Out of the 11 services agreed upon in the GATS agreement, the Canadian government did not include three service sectors that facilitate the entry of individuals in Canada, namely,
· Education,
· Health and
· Recreation, culture and sports.

3. An applicant may apply in any one of the above-mentioned categories i to viii. It is important that he seeks only a temporary entry in to Canada. The burden is on the applicant to prove that he wishes to enter Canada temporarily and will return to his home country on completion of his work in Canada. His status in Canada will be that of a “Visitor”.

4. As the applicant is on a visitor status, he will be required to fulfill other requirements of the Canada Immigration Act and Regulation such as disclosing facts about medical conditions, criminal records, passport and other identification documents.
 

1. Business Visitor:

This category facilitates the entry of a businessperson who represents a service provider company from a member nation and who wishes to market the services of his company in Canada or wishes to establish a commercial presence in Canada in order to sell those services.

The business activities for which businesspersons can come to Canada for a short visit include attending meetings, making contacts or participating in business negotiation meetings and negotiations for the sale of services and/ or similar activities including establishing a presence in Canada.

Businesspersons cannot enter into the labour market of Canada and remuneration should be paid by an outside source. Such a businessperson cannot sell or solicit the sale of services to the general public.
 
 
 
 

Documentation requirements:

i. Every businessperson must meet the above-mentioned general requirements 1 to 4 for entry into Canada under GATS.
ii. If a visa is not required by the businessperson to enter Canada as a “visitor”, the application to enter Canada as a “business visitor” can be made at the port of entry. In all other cases, application must be made at the visa office abroad.
iii. The businessperson is usually required to produce supporting documents from his company explaining the purpose of visit and activities to be carried out in Canada.
iv. If business meetings are already scheduled with Canadian companies in Canada, a letter from those companies may be produced with necessary details.
v. Simple visitor visa is sufficient and businesspersons are not required to apply for employment authorization.
 

2. Intra – Company Transferees:
 

This provision allows foreign companies having business operations in Canada to transfer certain key persons to their Canadian operations. Apart from the general requirements 1-4 mentioned above, the transferee must meet the following requirements.

i. The person to be transferred to Canada must hold a position as an Executive, Manager or Specialist in a qualified company in the member nation.
ii. He also must be working for the foreign company for a period of at least one year.
iii. Managers and senior executives must be working as a Managers rather than performing their professional duties.
iv. Executive transferee must be performing the duty of managing the company, establishing goals and policies for the company or for its major components or functions and should have wide decision making powers with little senior supervision.
v.  Manager transferee must be performing duties to direct the company and/or one of its departments or sub divisions and supervise the work of other supervisory, professional or managerial employees. He should have discretionary power in the management of the company including the power to hire and fire employees.
vi. Specialist transferees must have an advanced level of expertise and proprietary knowledge of the company’s products, services, research equipments, techniques or management. This type of knowledge should not be available in Canada and his position should be critical to the well being of the enterprise.
vii. Transferees do not need to apply for job validation but must apply for employment authorization at the visa office abroad or port of entry if no visitor visa is required.
viii. Length of stay granted initially is one year with extension for another two years, thus maximum for a period of three years.
 

Requirements for the company / employer:

i. The Canadian company and foreign company must have affiliated, branch, parent or subsidiary relationship and must have substantive business in both locations to support executive or managerial functional personals.

a. Affiliated relationship between two companies means common ownership of the home based company and Canadian company by a third entity or group of companies.
b. Branch relationship means the Canadian operation is an operating division or office of the same organization housed in a different location.
c. Parent relationship means a firm, corporation or other legal entity, which has a subsidiary.
d.  Subsidiary relationship refers to a firm, corporation and other legal entity owned directly and indirectly by a parent company.

ii. If the operation in Canada is new, it must show proof that it is already established and can reasonably be expected to grow large enough to a size, which will need employees of senior levels.
iii. New operation must also show that it can reasonably be expected to grow to be a substantive size with financial strength and must be doing business regularly, systematically and continuously in both countries. A mere virtual office in Canada will not qualify for Intra-company transferee.
 

  Documents required:
 In addition to the documents required for applying for visitor visa, the following documents must be provided.

i. A letter from the present employer confirming the following -
a. That the applicant has worked for the company continuously for at least one year immediately preceding the date of application.
b. Detail of current position held by the transferee along with job duties;
c. Type of services delivered by the Canadian company;
d. Details of the job or work to be performed in Canada by the transferee along with position, title, place in the organisation, job description;
e. Intended length of stay in Canada;
f. The relationship between the Canadian and foreign employer with additional documentary evidence to substantiate this relationship;
g. If applying as a specialist, an explanation as to why the applicant and the duties which he will perform will be crucial to the well being of the Canadian operation;
h. If applying as a specialist, applicant must also provide educational documents and other credentials to establish the specialized knowledge and capability acquired to perform his duty in Canada.

This provision is different from NAFTA in one aspect that GATS includes only service sector companies and from the general immigration provision GATS differs by including specialized persons in the provisions of Intra-company transferee.
 
 

3. Professionals:

There are nine types of professionals who are allowed to perform professional work in Canada. Such professional work should be a part of the contract obtained by the professional’s foreign company and awarded by the Canadian company.  These nine professionals are:

Group: A
i.       Engineers
ii. Agrologists
iii. Architects
iv. Forestry professionals
v. Geomatics professionals and
vi. Land surveyors.

         Group-B

vii. Foreign Legal consultants
viii. Urban planners
ix. Senior computer specialists

A professional who wishes to come to Canada must have necessary academic credentials and professional qualifications. Such qualification should be duly recognized in Canada by the appropriate provincial authority and the professional must be granted a licence except in case of computer professionals. However, computer professionals must have a Master’s degree with a minimum of 10 years of experience and only 10 computer professionals per contract are allowed at a time.

The time limit allotted is a maximum period of three months or 90 consecutive days within a twelve months period. No extension will be allowed and no secondary employment is allowed.

The services to be provided must be those provided under the GATS only.

In the case of group B professionals, the Canadian employer must be engaged in a substantive business in Canada. A Canadian company placing an order with a foreign employment agency to supply manpower may not be granted visa under GATS.  The professionals can be paid by their Canadian employers or by the foreign company.

The professional must satisfy all the general criteria 1-4 mentioned before for entry into Canada as a professional and also the immigration regulations related to the issuance of a visitor visa.
 

Documents required:

1. The professional must be citizen of a member nation or be a permanent resident of Australia, New Zealand or Switzerland;
2. Copy of the signed contract between the foreign company and the Canadian company;
3. Documentary proof showing the profession for which entry is sought and to which province in Canada the professional is headed to, description of job duties, terms and conditions of payment, duration of employment and educational qualifications or alternative credentials required to discharge job duties in Canada;
4. Evidence that the professional has necessary qualifications, professional licence, accreditation and registration.
5.  Documentation from the appropriate Canadian professional association confirming that the professional’s qualifications have been duly recognized in Canada.
6. Where required, temporary or permanent licence issued by the provincial or other appropriate authority in Canada.

Applications can be made at the port of entry if no visitor visa is required for such professionals. In all other cases, applications must be made at the visa office abroad for employment authorization.

This is the first effort by 130 countries to agree on the same immigration regulations. It is a historic event and could lay the foundation for the future of global immigration regulations. Also, this points to the fact that these types of regulations may bring many similarities in the immigration regulations of a number of countries.

Prepared by: Prashant Ajmera & Associates
320 Prince Albert,
Montreal QC
H3Z 2N7
Canada
Tel: 514 488 2800
Fax: 514 488 6484
E-mail: pajmera@canada.com
W-site:www.canadaimmigrationvisa.com
 
 



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