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Canadian Temporary Entry Under the General Agreement on Trade in Services ("GATS")

Written by Henry J. Chang

General

In addition to the general exemptions from Human Resources Skills Development Canada ("HRSDC") confirmation, additional exemptions are available under the GATS. These benefits augment rather than supersede these general provisions. The nonimmigrant benefits available under the GATS are organized into the following categories: (a) Business Visitors, (b) Professionals, and (c) Intracompany Transferees.

In order to qualify under GATS, the foreign national must be a citizen of a World Trade Organization ("WTO") Member nation; the list of Member nations appears the web site of the WTO. Citizens of observer nations are not eligible. The foreign national may also qualify if he or she is a permanent resident of a Member nation that has given formal notification that its permanent residents have the same rights as its citizens; at present, Australia and New Zealand have given such notification.

Business Visitors

The GATS business visitor category facilitates the entry of businesspersons, representing service providers from other Member nations who wish to market their services in Canada or to establish a commercial presence to sell those services. However, the range of activities to which business visitors are permitted to engage under the GATS is much more limited than under the NAFTA. For this reason, citizens of the United States and Mexico should seek admission under the NAFTA rather than under the GATS.

The GATS business visitor category is intended to supplement rather than replace the general business visitor provisions. Permissible activities for business visitors under GATS are restricted to sales and marketing, negotiation of commercial transactions, and the establishment of a commercial presence. In order to qualify under GATS, the alien must work in one of the following service sectors: business, communications, construction, distribution, environment, finance, tourism and travel, and transport.

The GATS defines business visitors as individuals who "stay in Canada without acquiring remuneration from within Canada and without engaging in making direct sales to the general public or supplying services, for the purpose of participating in business meetings, business contacts including negotiations for the sale of services and/or similar activities including those to prepare for establishing a commercial presence in Canada".

The GATS business visitor category does not apply to aliens seeking to join the Canadian labor market. The alien's primary source of remuneration must remain outside Canada and the alien's activities must not involve direct sales or service to the general public.

As in the case of the NAFTA, business visitors under GATS must be seeking temporary entry to Canada. Temporary entry means that the alien must have no intention of remaining in Canada permanently.

All provisions of the Immigration and Refugee Protection Act ("IRPA") and the Immigration and Refugee Protection Regulations ("IRPR") remain in effect with respect to business visitors under GATS. Therefore, foreign national who falls within one of the inadmissible classes will not be permitted to enter Canada pursuant to the GATS.

GATS Professionals

Although this exemption is based on the professional category contained in the NAFTA, it is far more restrictive. The number of professions included under this category is limited and the maximum period of stay is limited to ninety days in any twelve-month period.

As in the case of GATS business visitors, aliens seeking professional status must establish that they meet the following general requirements:

  1. Citizenship in a member nation or permanent residence in a permanent resident of a member nation that has given formal notification that its permanent residents have the same rights as its citizens do;

  2. Employment in one of the permitted service sectors; and

  3. Providing professional services pursuant to a written agreement on behalf of a service provider based in the territory of another member nation.

The GATS defines a professional as "a person who seeks to engage, as part of a services contract obtained by [a company in another member nation] in an activity at a professional level in a profession set out in Appendix [C] provided that the person possesses the necessary academic credentials and professional qualifications which have been duly recognized, where appropriate, by the professional association in Canada". Appendix C lists the eligible professions and the educational requirements for each profession. These professions are divided into two groups; Group 2 is subject to additional restrictions. The eligible GATS professions are as follows:

Group 1
OccupationMinimum Educational RequirementOther Requirements
EngineersBaccalaureate degree*Provincial licence**
AgrologistsBaccalaureate degree in agriculture or related science plus four years of related experienceLicencing required in New Brunswick, Alberta, and Quebec. Temporary licencing required in British Columbia.
ArchitectsBaccalaureate degree in architectureProvincial licence and certificate required to practice.
Forestry ProfessionalsBaccalaureate degree in forestry management and forestry engineering, or a provincial licence.Licencing as a forester or forestry engineer is required in Alberta, British Columbia and Quebec.
Geomatics Professionals***Baccalaureate degree in surveying, geography, or environmental sciences, plus three years related experience.
Land SurveyorsBaccalaureate degreeProvincial licence
Group 2
OccupationMinimum Educational RequirementOther Requirements
Legal ConsultantsBaccalaureate degree in LawProvincial licence
Urban PlannersBaccalaureate degree in Urban PlanningProvincial licence
Senior Computer SpecialistsGraduate degree in computer sciences or related discipline and ten years experience in computer sciences.
* "Baccalaureate" means a degree from an accredited academic institution in Canada or equivalent.
** "Provincial licence" means any document issued by a provincial government or under its authority which permits a person to engage in a regulated activity or profession.
*** Geomatics professions must be working in aerial surveying or aerial photography.
**** "Graduate degree" means at least a Master's degree from an accredited institution in Canada or equivalent. Academic equivalencies will be determined by the relevant equivalency services in Canada.

In order to qualify as a GATS professional, the foreign national must meet the following criteria:

  1. Possess citizenship of a Member nation, or the right of permanent residence in Australia or New Zealand.
  2. Deliver a service pursuant to a signed contract between a Canadian service consumer and a service provider of a WTO Member nation. In the case of foreign legal consultants, urban planners, and senior computer specialists, the foreign service provider must not have a commercial presence in Canada.
  3. The foreign-based employer must have been for a reasonable period of time and be actively doing business.
  4. Possess professional qualifications in an occupation identified in the above charts.
  5. NOT provide service in any of the following service sectors: education, health-related services, or recreational, cultural, and sports services.
  6. Possess qualifications that have been recognized, where appropriate, by the professional association in Canada.
  7. Comply with existing immigration requirements for temporary entry, including temporary resident visa requirements. As in the case of GATS business visitors, GATS professionals must be seeking temporary entry only. Temporary entry means that the alien must have no intention of remaining in Canada permanently.
  8. Where the contract is between a Canadian company and a foreign personnel placement agency to supply the professional, entry will not be permitted under GATS, even where the occupation is listed in the professional category.
  9. In the case of foreign legal consultants, urban planners, and senior computer specialists, the employer in Canada must be engaged in substantive business.
  10. In the case of senior computer specialists, a limit of ten entrants per project has been imposed.
  11. Entry is for a period of 90 days.

A work permit to enter as a professional under the GATS can be obtained by applying through a Canadian consulate abroad or, for citizens of member countries that do not require a temporary resident visa, from a port of entry. To obtain a work permit as a GATS professional, the foreign national must have either a license from the province in which he or she will be working or documentation from an appropriate professional association in Canada recognizing his or her academic credentials and professional qualifications.

As mentioned above, the maximum validity period of a work permit granted to a GATS professional is limited to ninety consecutive days within a twelve-month period. Secondary employment (working for an employer who is not named on the work permit) is not permitted and an extension of the employment authorization as a GATS professional beyond the initial 90 day period is not permitted.

GATS Intracompany Transferees

The eligibility requirements for intracompany transferees under the GATS are virtually identical to those of intracompany transferees under the NAFTA.

The GATS defines intra-company transferees as "...persons of another [member nation] who have been employed... for a period of not less than one year and who seek temporary entry in order to render services to (i) the same [company] which is engaged in substantive business operations in Canada or (ii) a [company] constituted in Canada and engaged in substantive business operations in Canada which is owned by or controlled by or affiliated with the aforementioned [company]." An alien seeking an employment authorization as an intracompany transferee under the GATS must therefore establish the following:

  1. The alien must have citizenship in a member nation or permanent residence in a permanent resident of a member nation that has given formal notification that its permanent residents have the same rights as its citizens do.

  2. A qualifying relationship must exist between the Canadian company and the company located abroad. The Canadian company must be a parent, subsidiary, or affiliate of the company located abroad. They must also be engaged in substantive business operations -- that is, they must be large enough in both locations to support executive or managerial functions. "Affiliate" means common ownership of the home-based company and the Canadian operation by a third entity or group of companies. "Branch" is an operating division or office of the same organization housed in a different location. "Parent" means a firm, corporation or other legal entity, which has subsidiaries. "Subsidiary" refers to a firm, corporation or other legal entity owned, directly or indirectly, by a parent. These definitions are similar to those used in the NAFTA. However, the definition of affiliate does not specifically require that the group of companies own the same proportion of each company. Further, the definition of subsidiary does not specifically recognize a 50% owner of 50-50 joint venture or de facto control where parent controls the entity despite having less than 50% ownership.

  3. The alien must have at least one continuous year of employment with the company located abroad immediately prior to the application for work permit (the NAFTA permits one year of employment within the three-year period preceding the application.)

  4. The prior employment abroad and proposed employment in Canada must be in a managerial, executive, or specialized knowledge capacity. Executives direct the management of the company, establish goals and policies for the company or for one of its major components or functions, and have wide decision-making powers with little senior supervision. Managers direct the company or one of its departments or subdivisions; supervise the work of other supervisory, professional or managerial employees; have discretionary control of the company's daily affairs and can make employment decisions (the NAFTA also recognizes functional managers, which are not mentioned here.) Specialists (or persons with specialized knowledge) possess advanced levels of expertise and proprietary knowledge of the company's product, service, research equipment, techniques or management (the NAFTA definition appears to be a lower standard, since it does not require that the specialized knowledge be proprietary.)

  5. The Canadian company must be in a service sector covered by the GATS.

As in the case of GATS professionals, GATS intracompany transferees must be seeking temporary entry only. Temporary entry means that the alien must have no intention of remaining in Canada permanently.

All provisions of the Act and Regulations remain in effect with respect to intracompany transferees under the GATS. Therefore, an alien who falls within one of the inadmissible classes will not be permitted to enter Canada under the GATS.

GATS intracompany transferees can apply for work permits at a Canadian consulate abroad or, if they are coming from a country for which Canada does not require a temporary resident visa, at a port of entry. A work permit granted at the time of entry will be valid for one year and an extension of up to two years is permitted. Executives, managers and specialized workers are all subject to a three-year maximum period of stay under this category. This is far less than the seven-year (executives and managers) and five-year (specialized knowledge workers) limits applicable to NAFTA intracompany transferees.


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