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Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

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What Happens If You Really “Break A Leg!?”

According to the Cambridge Idioms Dictionary, “Break a leg!” is something you say to wish someone good luck, especially before they perform in the theatre. Although there are many theories, the derivation of this term is unclear. The expression reflects a theatrical superstition that wishing a person “good luck” is actually considered bad luck. But is it really bad luck if you “break a leg?”

In this month’s edition, we feature articles from eight different countries Australia, Canada, China, France, Germany, Israel, UK and US. As always, we thank you for you readership.

Read the complete issue

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Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Tax consequences for multinationals sending employees to Canada

US-and-Canada-flag-puzzle

Multinational corporations sending employees to foreign countries on business must be alert to the legal responsibilities that can arise from such transfers. Dentons partner Emmanuel Sala clarifies the Canadian and Quebec fiscal rules and mechanisms that govern US parent corporations with US employees employed in Canada. His article covers both Canadian federal and Quebec provincial payroll tax obligations. Regarding Canadian federal tax obligations, Emmanuel notes that if a US parent corporation is determined to have a “permanent establishment” (PE) in Canada, business profits attributable to the PE would be subject to Canadian federal income tax and various forms of tax relief would become unavailable. He provides an in-depth review of the most common situations that might give rise to a PE determination, including fixed-base, agency, construction-site and service. Emmanuel also discusses the possibility of implementing secondment arrangements to mitigate the risk of a PE determination.

Click to read article.

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Tax consequences for multinationals sending employees to Canada

US State Department changes E Visa processing in Canada for investors and traders

financial2

The US State Department announced, effective March 1, 2016, new streamlined registration and expanded processing locations for E-1 treaty trader and E-2 treaty investors visa applications processed in Canada.

Applications to register companies to qualify as E-1 and/or E-2 visa employers must be done at the US Consulate in Toronto. E-1 and E-2 visa applications for employees of companies not already registered, or of companies that have let their registration expire, must be submitted to the Toronto consulate.

E-1 and E-2 visa applications for employees of companies registered with the US Consulate in Toronto, as well as their dependent family members, may now apply at the US Embassy in Ottawa, as well as the US consulates in Toronto, Vancouver, Calgary and Montréal. Previously, only the Toronto and Vancouver consulates handled E visa applications.

Appointments are prioritized for Canadian citizens and permanent residents who are citizens of treaty countries. The US State Department publishes a complete list of treaty countries online, click to see a complete list. Limited appointments are available for citizens and residents of countries other than Canada.

E visa company registration indicates that a consular officer has determined that a company met E visa standards on a prior application. Registered companies are given a Notice of E Visa Company Registration. There are more streamlined E visa application procedures while the registration is valid, unless there are substantive changes to the enterprise that would jeopardize its E visa status. If there are substantial changes in the company’s ownership structure or operations since the registration notice was issued, the consular officer may require additional corporate documents to ensure the treaty enterprise still qualifies.

For more information about the E-1, E-2 and other US temporary and permanent visas, please see Dentons United States Immigration Guide.

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US State Department changes E Visa processing in Canada for investors and traders

Changes to Canadian Work Permit Categories for Television/Film and Performing Arts

Film photo

The Canadian Department of Immigration, Refugee and Citizenship Canada (“IRCC”) has announced two new Labour Market Impact Assessment (LMIA) exempt work permit categories for foreign nationals working in television and film or the performing arts.

Starting on February 17, 2016, the two new LMIA exemption categories will allow for certain foreign nationals to apply for a work permit without first having to apply to the Temporary Foreign Worker program for an LMIA. These work permit categories will now be governed under the International Mobility Program.

Television and Film (C14 Exemption – Significant Benefit)

Foreign nationals working in the TV and Film industry who hold positions that are essential to a TV or film production may be eligible to apply for a work permit directly at the port of entry (for TRV exempt nationals) or to a Canadian visa office abroad without first obtaining an LMIA. This new exemption will allow Canada to continue to attract high value TV and film productions to Canada, creating significant economic benefits and opportunities for Canadians. This exemption will apply to both Canadian productions and foreign productions.

To qualify, the positions must be considered to be “high wage” and are often unionized. In British Columbia a high wage position is considered to be an amount above $22.00 /hour and in Ontario, high wage is an amount over $21.15. See all provincial wage thresholds at: http://www.esdc.gc.ca/en/foreign_workers/hire/median_wage/index.page

Employers will be required to file an “Offer of Employment for LMIA Exempt Work Permits” with IRCC and pay a compliance fee of $230 before the work permit application is made. The Offer of Employment must be filed in advance and proof of filing will be required for the foreign national to make their work permit application.

To support the work permit application, the production must provide a support letter outlining some general information in relation to the production, a statement that the foreign worker and the position to be held by the foreign worker is essential to the production, and details on the economic benefit of the production to Canada (including the number of Canadians created by the production, the estimate budget to be spent in Canada and a statement confirming that the production satisfies the criteria for federal or provincial tax credits or is the recipient of federal or provincial funding). The production must also provide a letter of support from the applicable union.

For further details, please see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/imp-c14.asp

Performing Arts (C23 – Reciprocal Employment)

Foreign nationals working as key creative personnel and talent associated with non-profit performing arts organizations involved in theater, opera, orchestras, and dance may be eligible for this LMIA exempt work permit. This new exemption will allow for foreign nationals to apply for work permits in the performing arts if they can demonstrate reciprocal opportunities for Canadians outside of Canada in the same discipline. A one to one ratio of reciprocity does not have to be proven, rather a general statement affirming that reciprocity has been known to exist with an explanation of how the organization plans to allow for opportunities for Canadians outside of Canada.

Employers will be required to file an “Offer of Employment for LMIA Exempt Work Permits” with IRCC and pay a compliance fee of $230 before the work permit application is made. The Offer of Employment must be filed in advance and proof of filing will be required for the foreign national to make their work permit application.

To support the work permit application, the performing arts organization will be required to provide a support letter outlining the reciprocity for Canadians abroad in the specific discipline, a copy of the job offer to the foreign national, and confirmation of the organization’s funding support from the Canadian government or applicable parliamentary council for the arts.

For further details on the performing arts LMIA exemption and reciprocity letters, please see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/imp-c23.asp

Foreign Funded Commercials Filmed in Canada – Business Visitor

Another change that IRCC announced this week applies to essential personnel (including producers, directors, actors, technicians, etc.) entering Canada to shoot a foreign funded commercial or advertisement in Canada. This exemption falls under the Business Visitor category and therefore does not require an application for a work permit. The entry as a Business Visitor for filming commercials (or print advertising) is limited for entry to Canada for a very short duration (under 2 weeks).

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Changes to Canadian Work Permit Categories for Television/Film and Performing Arts

Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

Global Employment Lawyer - Nov. & Dec. 2015

 

Look out, beware—it’s holiday party season!

For many companies, having an annual holiday party is part of the culture and tradition of the organization. Company holiday parties provide employees with an opportunity to socialize and celebrate together, and can certainly help boost morale and engender loyalty. At the same time, however, there are risks lurking. Depending on the type of party and the part of the world you are having it in, there are different types of risks that can come into play—and we have some tips to mitigate them.

What’s not risky? Keeping up to date on the hot topics in employment and labor issues from around the globe which could affect your business goals in those regions.

From all of your friends at Dentons, we wish you a happy, healthy and prosperous holiday season!

Read the complete issue

 

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Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

New Entrepreneur Immigration Program opens in British Columbia, Canada

opendooroptions

British Columbia’s Provincial Nominee Program (BC PNP) reopened its doors for business immigrants to Canada on July 2, 2015. In a landscape of unfriendly federal business immigration programs and preference for employer-driven individual immigration programs, the new BC PNP Entrepreneur Immigration program is extremely attractive for prospective business immigrants to Canada.

The appeal

  • No minimum English language skills required
  • No age restriction
  • Minimum of 33 percent business ownership only
  • Low thresholds for minimum net worth (CA$600,000) and investment (CA$200,000)
  • Low initial registration fee of CA$300

Looking closer

It may sound too good to be true, because it probably is. BC PNP is attracting as many applications as it can so it can choose the best. In fact, BC PNP will now have a Pool of applicants competing to get as many points (maximum 200) as possible—however, only 200 applicants are accepted into the Pool each month. BC PNP will then make periodic draws from the Pool to award applicants holding the highest scores with an Invitation to Apply for the Entrepreneur Immigration program. So while the bar seems to be set low, applicants will need a competitive score to be successful.

A competitive score can come from increasing individual points as much as possible for each category:

Points category Points
Experience 24
Net Worth 12
Personal Investment 30
Jobs 36
Adaptability 18
Business Concept 80
Total 200

 

This could mean having greater management experience, higher net worth, significant investments, English language skills or even choosing a better business. For instance, an eligible business for the Business Concept must, at minimum, contribute to the province’s economic growth. However, there is also a list of business types that offer significant economic benefits and those would presumably be more valuable on the points system.

Other requirements for the program, like its predecessor, include:

  • Business or management experience;
  • Active management of a new or improved existing business located in British Columbia;
  • Intention to reside in British Columbia; and
  • Introduction of at least one full-time job for a Canadian or permanent resident.

Undoubtedly, the BC PNP Entrepreneur Immigration program will reopen doors of opportunity for prospective business immigrants to Canada.

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New Entrepreneur Immigration Program opens in British Columbia, Canada

Global Employment Lawyer – Issue 3

Summer 2015

Global Employment Lawyer

The third edition of the Global Employment Lawyer provides you with practical content to keep you current on developments that effect your business goals around the globe. Our lawyers look at questions of religious accommodation as well as the unpleasant income tax consequences of temporary visas in the US; managing “difficult employees” in Canada; reducing workforce due to redundancies in China; imminent changes to Polish labor law; recruitment of non-resident foreign workers in Angola; employing foreign workers in Israel and whistleblowing in the UK.

Read more

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Global Employment Lawyer – Issue 3

LMIA Exempt Work Permit Applications – New Procedure

Effective February 21, 2015, there will be changes to the work permit application process for categories that are currently exempt from obtaining a Labour Market Impact Assessment (LMIA) and employer specific. The changes follow amendments to the Immigration and Refugee Protection Regulations focused on employer compliance in the employment of foreign workers.

As a result of the regulatory amendments, most work permit applications will now require a 2 step process:

Step 1. Either an LMIA application to Service Canada OR a new procedure involving an application form to be submitted to Citizenship and Immigration Canada (CIC) for LMIA exempt categories (Form IMM 5802 – Offer of Employment to a Labour Market Impact Assessment Exempt Foreign National) with an additional $230 employer compliance fee.

Step 2. Work permit application.

This new procedure is applicable to all LMIA exempt work permits that are employer specific including work permit extension applications, visa office applications, port of entry applications. The new procedure will apply to most LMIA exempt work permit applications including work permits under NAFTA, intra-company transfers, PNPs, signficant benefit, etc. (Note: step 1 is not required for open work permit applicants, however, open work permits will be subject to an additional $100 privilege fee).

The new IMM 5802 Form and online fee payment (through their current CIC online fee payment site) will be available on Wednesday, February 18, 2015. The new form will require general corporate information about the employer (including contact information), the terms of the offer, information supporting the LMIA exemption and an attestation by the employer on the terms of the offer of employment.

Third party representatives will be able to submit the IMM 5802 Form for employers as long as the employer contact has signed a Use of Rep form (IMM 5476). The process requires that the IMM 5802 be completed by employers and submitted with the $230 payment to CIC.

Once the IMM 5802 Form is submitted to CIC, a confirmation will be generated by CIC. This confirmation along with a copy of the IMM 5802 Form and the $230 fee payment must be provided to the foreign worker to make an application for a work permit (i.e. at the visa office, online or at POE etc.)

There is not an advance “adjudication process” for the IMM 5802 Form before the work permit application is processed. For example, although proof that the IMM 5802 Form was submitted is required for an applicant to apply for a work permit at the POE, it was indicated that this could be done 5 minutes prior to arriving at the port of entry, as long as the applicant had a copy of the submitted IMM 5802 Form and payment confirmation with their work permit application.

There will also be a process for receiving a refund of the $230 employer compliance fee (and $100 privilege fee) if a work permit application is refused

More information will be posted by CIC this week and the link to the CIC site can be found at: http://www.cic.gc.ca/english/resources/tools/temp/work/admissibility/specific.asp

If you have any questions, please do not hesitate to contact us.

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LMIA Exempt Work Permit Applications – New Procedure

New year, new employment issues

Global_Employment_Lawyer_Winter_2015

The mission of Dentons’ Global Employment Lawyer is to keep you informed of significant trends and developments in the area of global employment and labor law, wherever they take place, so that you are in a better position to make educated business decisions. Thank you for helping to make the first edition of the Global Employment Lawyer a huge success!

In this second edition of the Dentons’ Global Employment Lawyer, our lawyers examine:

  • Options for dealing with employee layoffs in China for foreign investors
  • Canada’s recent decision to require employee accommodation for childcare responsibilities
  • Restrictions under Polish law which can affect employment settlements
  • Romania’s recent decisions effecting union standing and disciplinary actions against employees
  • Specific ambiguities in Egyptian labor law on financial entitlements, employment terminations and collective dispute resolution mechanisms
  • UK’s recent employment decision potentially increasing the amount of holiday pay owed to certain overtime workers
  • Current and pending changes to US employment regulations for 2015, including laws affecting paid sick leave, anti discrimination and bullying, social media, severance and more
  • US IRS regulation Section 457A’s effect on deferred compensation for US taxpayers who work for non-US entities
  • Recap of Dentons’ client seminar on critical employment issues for multinationals

Read the complete issue

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New year, new employment issues

Permit Me to Explain – Work Permits and LMIAs for Foreign Actors

Media-(ThinkStock)

As much as we Canadians (justifiably) boast about our homegrown talent, there is no hiding the fact that to maximize the quality of our music, TV, and film we sometimes need an assist from outside our borders.  For instance, you are a producer of a multimillion dollar film shooting in Canada and want to hire a specific non-Canadian actor to play the sister of the film’s protagonist: can you simply hire the performer?  Like many legal questions, the answer is (unfortunately) “it depends.”

When attempting to determine whether an employer may hire a foreign performer, the first question to be asked is what type of performer are they?  Some categories of performers need to obtain a work permit prior to performing in Canada[1]; other categories of performers, set out in Section 186 of the Regulations to the Immigration and Refugee Protection Act (the “Regulations”), are exempt from the requirement. On June 20, 2014, amendments were made to the Regulations, which revised the list of performers in the “exempt” category.  The list of exempt non-Canadian performers includes:

  •  musicians in a band performing several tour dates in Canada;
  • guest conductors and artists performing with Canadian productions or groups for a few performances;
  • actors in foreign touring theatrical productions;
  • professional wrestlers and circus performers in foreign touring productions;
  • musicians and buskers coming to Canada to perform in festivals;
  • support crew and other workers who are integral to a live production; and
  • disc jockeys coming to Canada to work at private events, festivals, concerts and fairs.[2]

Setting aside the (puzzling) grouping of professional wrestlers with circus performers, producers and their counsel will note the continued omission of film and television actors from this list; something emphasized by section 186(g) of the Regulations which includes the wording:

A foreign national may work in Canada without a work permit as a performing artist appearing alone or in a group in an artistic performance – other than a performance that is primarily for a film production or a television or radio broadcast.[3] [Emphasis Added]

So, at this point we know that any non-Canadian actor participating in any film or TV production will be classification as a temporary foreign worker (“TFWs”) and must obtain a work permit.  The work permit allows TFWs to work in Canada to perform a specific service for a designated employer for a defined period of time.  To obtain a work permit, performers may apply at a Citizen and Immigration Canada visa office[4] or at a Canadian port of entry (in the case of citizens of contiguous states).  So, is a work permit all that is required for producers to hire a non-Canadian actor?  Yet again, the answer is “it depends.”  The producer may, in addition to obtaining a work permit for the actor, be obliged to complete a Labour Market Impact Assessment (“LMIA”).  Whether an LMIA is required is dictated by (a) whether the performance is for (i) film; or (ii) TV; and (b) whether or not the production is a Canadian co-production.

If the performer is being brought into Canada to perform in a certified Canadian co-produced film (i.e. commonly referred to as a “treaty co-production”)[5] [6], then the producer of the film is not required to complete an LMIA.  For non-Canadian performers appearing on a (a) film; or (b) TV series, that is not a Canadian co-production, then an LMIA will be required in order to determine whether a work permit will be granted (and the length of the work permit).  The LMIA is performed by Employment and Social Development Canada (“ESDC”)[7] and is meant to evaluate whether the employment of the non-Canadian performer is likely to have a positive or negative effect on the Canadian labour market.  To commence the LMIA process, the producer submits a completed LMIA[8] [9] to Service Canada.  Employers may also create an account with the TFW Web Service[10] which allows them to submit their LMIA application online and monitor its ongoing status.

When it comes to television series, the situation is less clear. There is some ambiguity in the wording on the ESDC website: the wording specifically mentions an LMIA exemption for “actors and workers on a film co-production between Canada and a foreign country”[11]; but elsewhere on the same page, reference is made to “film” and “television”, hinting that the absence of “television” in the description of the LMIA exemption indicates a deliberate intention to not include television co-productions as being eligible for the LMIA exemption.  However, producers we have spoken to have relayed that, as a practical matter, they have qualified for this LMIA exemption for Canadian co-produced television productions.  Producers seeking to utilize this exemption may wish to submit a LMIA exemption request to Service Canada who will provide the producer with an opinion as to whether they qualify.[12]

At some point along the way, the budget-conscious producer (i.e. any producer) reading this article must be wondering about costs.  The June 20, 2014 amendments previously mentioned increased the LMIA application fee from $275 to $1,000.  Despite this over 350% increase, likely of greater significance is that the June 20th amendments increased the processing time for LMIA applications.[13]  The ESDC website currently states that LMIA applications will be processed within 10 business days.  This could potentially be problematic for producers who find themselves in a situation whereby the casting of a performer takes place less than two weeks prior to that performer’s first day of principal photography.  Concern may be further magnified if the performer is needed for pre-production activities.

Apprehensive that this processing time may harm productions in Canada, in mid-July members of the film and TV community met with federal immigration Minister Chris Alexander.  It was reported that during this meeting Minister Alexander gave assurances that film and TV productions facing time constraints would receive quick and efficient services in regard to their LMIA applications.  Speaking with colleagues, and barring some initial hiccups, Mr. Alexander has seemingly been good to his word.  Despite a 10 business day processing period, those administering the LMIA application process appear cognizant of the time sensitive nature of film and TV productions.

Although there is reason to expect continued expedient LMIA application processing, producers who are required to complete an LMIA should remain mindful of the 10 business day timeline.  When completing one’s LMIA application[14] careful attention should be given to box 4 on page 3 entitled “Expected employment start date”.  Producers would be wise to give themselves flexibility.  Performers at one time not considered necessary for pre-production may later be needed prior to principal photography or perhaps shooting schedules may change such that Actor #8 is now an “SW”[15] on the Day 2 call sheet as opposed to Day 6.  As unforeseen events are inevitable during the production process, when completing box 4 producers should ensure that either (a) they are 100% certain the performer is not needed any earlier than the start day written on the LMIA; or (b) give themselves some flexibility in choosing a date in order to provide for unpredicted delays or changes in schedules.

 

Summary of Requirements for Different types of Performers

Type of Performer

Work Permit Required

LMIA Required

Actor in Film (Canadian co-production)

Yes

No

Actor in Film (Not Canadian co-production)

Yes

Yes

Actor in TV Series (Canadian co-production)

Yes

ESDC wording is unclear, but we hear they are treated like film actors

Actor in TV Series (Not Canadian co-production)

Yes

Yes

[Many thanks to articling student Ben Iscoe for his invaluable assistance in researching and writing this post.]

[1] Immigration and Refugee Protections Regulations <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.  See section 8(1) A foreign national may not enter Canada to work without first obtaining a work permit.  See also section 8(2) which states [s]ubsection (1) does not apply to a foreign national who is authorized under section 186 to work in Canada without a work permit.  Provisions of section 186 to be discussed.

[2] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[3] See Section 186(g) of the Regulation to the Immigration and Refugee Protection Act <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.

[4] Citizen and Immigration Canada Offices <http://www.cic.gc.ca/english/information/offices/index.asp>.

[5] A co-production appears to need Telefilm certification to qualify for the exemption.  For more information on Telefilm certification, visit “http://www.telefilm.ca/en/coproductions/coproductions/guidelines”.  Once certified, for assistance bringing performers into Canada to work on the co-production, visit “http://www.telefilm.ca/document/en/04/ProcedureImmigrationversionanglaise.pdf”.   This latter link provides helpful guidance; including offering a template letter that will may be used by Telefilm if Canadian authorities contact them to confirm information.

[6] Citizen and Immigration Canada does not define “film.”  A feature length live action production seems to be the template format, but for other formats (e.g. episodic television series, movie of the week, short film, animated film, etc.) a producer will likely have to submit a LIMA exemption request.  For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[7] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/home.shtml>.

[8] The LMIA form may be found on the Employment and Social Development Canada website <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5517(2014-11-019)e.pdf>.

[9] Please note that “[e]mployers in the Film and Entertainment sector are exempt from the recruitment and advertisement requirements.”  Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film/index.shtml>; see “Recruitment and Advertisement” tab.

[10] Employment and Social Development Canada <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5536(2014-01-003)e.pdf>.

[11] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[12] For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[13] Mas, Susana.  “Temporary Foreign Workers: Film, TV industry assured timely permits.”  CBC.ca. July 18, 2014 <http://www.cbc.ca/news/politics/temporary-foreign-workers-film-tv-industry-assured-timely-permits-1.2710488>.

[14] A link to the LMIA form may be found under footnote 8.

[15] An acronym standing for “Start Work” and indicates the performer’s first day of principal photography.

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Permit Me to Explain – Work Permits and LMIAs for Foreign Actors