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The Government of Canada implements its New Preclearance Act

Effective August 15, 2019, the Preclearance Act of 2016 gives enhanced powers to US Customs and Border Protection officers working in preclearance areas located in Canada, much to the chagrin of many concerned Canadians. The Act was implemented in furtherance of the Preclearance Agreement, a treaty signed by Canada and the US in 2015. Please click here to read the Dentons client alert.

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The Government of Canada implements its New Preclearance Act

Immigration consequences of Canadian criminal offences

Many Canadian criminal cases have potentially adverse consequences for immigration status. Accordingly, when a criminal lawyer in Canada represents a client who is not Canadian citizen, it is imperative that the lawyer consider the two distinct grounds of criminal inadmissibility described in the Immigration and Refugee Protection Act 1 (IRPA)—A36(1), which addresses “serious criminality” and applies to both foreign nationals and permanent residents, and A36(2), which addresses “criminality” and applies only to foreign nationals. For a discussion by Dentons Toronto immigration partner Henry Chang on their respective implications, as well as the impacts of federal, provincial and juvenile offenses, as well as conditional sentences, please click here.

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Immigration consequences of Canadian criminal offences

How US federal cannabis legalization would affect US immigration law

During the 115th US Congress, several bills were introduced to legalize marijuana at the federal level. Those receiving the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). While all three died when the Congress ended on January 3, 2019, they are likely to be reintroduced (without change) during the 116th Congress. For our analysis of how they might affect the ability of foreign nationals to enter the United States, click here.

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How US federal cannabis legalization would affect US immigration law

An overview of Canada’s Start-Up Business Class

Many foreign nationals are now aware that US immigration policies are more restrictive than in years past. For example, to protect the economic interests of US workers, President Trump issued an executive order directing government agencies to rigorously enforce and administer immigration laws. Meanwhile Canada remains relatively open to accepting new immigrants and, according to a report published by Immigration, Refugees and Citizenship Canada, could accept as many as 1.1 million in total in the years 2019 through 2021. As a result, many foreign entrepreneurs who might otherwise have permanently settled in the US are instead considering Canada. Dentons partner, Henry Chang (who is based in our Toronto office) has provided a detailed discussion of Canada’s Start-Up Business Class, a permanent residence option for innovative foreign entrepreneurs. The full article appears here.

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An overview of Canada’s Start-Up Business Class

Proposed change to afford certain temporary foreign workers with increased mobility

A proposed amendment to Canada’s Immigration and Refugee Protection Regulations (IRPR) would provide increased employment mobility to certain foreign workers under the Canadian Temporary Foreign Worker Program. It still remains to be seen whether Immigration, Refugees and Citizenship Canada and Employment and Social Development Canada will move forward with the amendment, and whether there is any appetite to provide similar changes to programs used to employ more highly-skilled foreign workers. To view the article on this proposed amendment, written by a member of our Toronto Employment and Labor team, click here.

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Proposed change to afford certain temporary foreign workers with increased mobility

Trade deals and immigration

How will future trade deals impact UK immigration policy?

With Brexit negotiations between the UK and the European Union progressing, the UK is keen to start trade talks with the EU as soon as possible. While a trade deal with the EU is a priority, other countries, including India and Australia, have expressed that, in the fullness of time, they also would like to negotiate their own trade deals with the UK.

The UK’s Brexit Secretary, David Davis, has stated that he is looking for a “Canada Plus Plus Plus” trade deal with the EU, a reference to the recent deal between the EU and Canada. Labor mobility is a key element of that deal, making it easier for certain skilled professionals from Canada to work temporarily in the EU, and vice versa.

We can also learn from other trade deals:

  • The Trans-Pacific Partnership (TPP) trade deal currently being negotiated between 11 Pacific Rim countries (notably not including the US, which withdrew from the pact) is also looking to include an element of labor mobility. For example, it is proposed as part of this deal that it will be easier for Australian employers to recruit people from Canada, Chile, Japan, Malaysia, Mexico and Vietnam by exempting them from the usual requirement of advertising the role to Australians as part of the immigration process. In return, Australians will get reciprocal access to the labor markets of these six countries.
  • Likewise, one of the outcomes of the Australia-United States Free Trade Agreement (AUFTA), which came into effect in 2005, was the US E-3 visa, which is available only to Australians. The E-3 visa is similar to the H1-B visa, however more generous in that it has a separate quota of 10,500, is renewable indefinitely and has the additional benefit of the spouse of the main visa holder being able to work. In contrast, the H1-B visa has a quota of 65,000 (for applicants of all other nationalities), is capped at six years and the spouse of the main visa holder is not able to work. Singapore and Chile enjoy similar preferential immigration routes to the US as a result of their free trade deals.

One of the key arguments for voting to leave the EU was that the UK would be able to negotiate its own trade deals. So what are our likely trading partners saying?

  • Australia has spoken of the need for “greater access” to the UK for Australian business people.
  • India has already stated that the UK will need to relax immigration rules and make it easier for professionals and presumably students from India to come to the UK.
  • The EU is another matter entirely with many competing priorities and parties. The degree of labour mobility post Brexit will depend on whether we see a “soft Brexit” or a “hard Brexit”, which is still very much to be decided.

What is certain is that any trade deal the UK negotiates after Brexit will be about more than goods and services. Labor mobility will be a key element and it is therefore inevitable that any future trade deals the UK agrees will have an impact on immigration policy.

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Trade deals and immigration

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

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

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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

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