Stewart McKelvey

that contemplates the many different groups who may need immigration support, including short and long-term transferees, new hires, third-party contractors (both consultants and specialized service technicians) and business travelers. Business Visitor or Foreign Worker? International business travel has become so commonplace that many people will board an airplane or drive to the Canadian border for meetings, to provide services to a client, or to visit an affiliate office without carefully considering the immigration consequences of their cross-border business activities until they are questioned by an immigration officer. Whether a business traveller requires an immigration document (such as a work permit or visitor record) to engage in business activity in Canada should be carefully analyzed before an international business trip or secondment is arranged. There are a lot of misconceptions about the application of Canada���s immigration rules to short-term business travellers. For example, many foreign nationals and the companies bringing them to Canada incorrectly assume that specialized service providers and consultants who are coming to Canada for a short period of time do not require a work permit since they are not employed by a Canadian organization. This mistaken belief often comes from a traveller���s past experience of being admitted to Canada as a visitor after not fully disclosing the purpose of their trip. The recent changes to Canada���s immigration regime have lead to a more enforcement-minded approach of ensuring that foreign workers will not negatively impact the Canadian labour market. As a result, we are seeing much more scrutiny at the border by the Canada Border Services Agency (���CBSA���) in the assessment of both business visitor and work permit applications. This means that those international business travellers who managed to slip into Canada without the proper documentation in the past are unlikely to be as lucky in the future. Consequently, failure to assess the immigration requirements of a particular situation in advance and implement the appropriate strategy can translate into lost time and money. Recently a client retained an expert consultant from a non visa-requiring country in the Asia- Pacific region. Since the consultant was hired to come to Canada for less than two weeks, the client assumed he would not need a work permit. When the consultant arrived in Canada and indicated the purpose for his trip, however, it was determined that he did require a work permit. He did not have what he needed to apply for a work permit (namely a pre-approval called a labour market opinion (���LMO���)) so he was sent home on the next flight and told not to return to Canada until an LMO was secured in respect of the work he would be doing. Although some CBSA officers are more facilitative than in this example, this scenario is happening much more often than it used to. Canada���s business visitor rules do allow foreign nationals to enter Canada to engage in international business activities without a work permit provided they will not be ���entering the Canadian labour market���. Entering the labour market is interpreted broadly and includes the activities of anyone who is paid directly or indirectly for services rendered in Canada. Activities allowed under the business visitor category include attending board of directors meetings, negotiating contracts and looking for office space. Where a Canadian company has retained a foreign company or individual to provide services in Canada, the individual performing the services will require a work permit and will not qualify for admission to Canada as a business visitor. The business visitor category also extends to those individuals performing after sales service in Canada on commercial or industrial equipment, provided the service was contemplated in the original or extended sales agreement, lease/rental agreement, warranty or service contract. After -sales service includes startup and commissioning assistance, but does not include ���hands-on work��� generally performed by construction or building trades. We encourage you to contact a member of our immigration team if you have questions about anything discussed in this article. Andrea Baldwin, associate Halifax, N.S. 902.420.3370 abaldwin@stewartmckelvey.com DOING BUSINESS IN ATLANTIC CANADA SPRING 2013 5

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