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  • Article: New Free Trade Agreement Expands Canadian Companies’ Ability to Retain Foreign Professionals By Benjamin A. Kranc

    New Free Trade Agreement Expands Canadian Companies’ Ability to Retain Foreign Professionals

    by


    The News

    Canada has announced that it has entered into yet another free trade agreement - this time with South Korea, and this time, with some ‘new and improved’ immigration provisions. These beneficial provisions, detailed below, could have significant impact on the ability of Canadian companies to retain skilled workers for positions which cannot be filled by Canadians or workers from other countries. Among other features of the agreement (and as also detailed below), enhanced professional categories means that Canadian companies can now seek foreign workers in areas that would typically not be allowed to work in Canada, without a Labour Market Impact Assessment (“LMIA”). [The LMIA process is used to prove that no Canadian is available for a position – it is a long, expensive, and cumbersome process.]

    Background

    Canada has in place free trade agreements (that include enhanced immigration provisions), with:

    - The United States

    - Mexico

    - Chile

    - Colombia, and

    - Peru

    Canada is also party to the General Agreement on Trade in Services (“GATS”) which also has enhanced immigration provisions for signatory countries.

    Further still, Canada is finalizing implementation of yet another free trade agreement with the European Union, and negotiations are in process for free trade agreements with other countries as well.

    Each of these bilateral agreements or international instruments has provisions that allow for eased entry for various types of scenarios. Each agreement is different, but if relevant, each agreement can be referenced as a legal tool to get needed foreign workers to Canada.

    New Provisions and Benefits

    The new Canada-South Korea Free Trade Agreement calls for enhanced immigration considerations for:

    - Business Visitors

    - Intra-Company Transferees

    - Traders and Investors, and

    - Professionals

    Though each of these may have benefit for Canadian companies seeking to fill positions, the categories of consideration are similar to provisions in existing free trade agreements. (Counsel should be sought to ensure compliance in the use of any free trade agreement, given that there are indeed differences in between the agreements.)

    However, there are important new features and/or nuances in this agreement which are different from other agreements, and which may greatly benefit Canadian businesses in their need to fill positions in Canada. These are some highlights of the agreement:

    (a) The ‘ordinary’ professionals include various scientists and business professionals similar to other agreements, however, there appear to be two unique categories which may be very important, and which are much more difficult for workers from other countries. They are:

    a. Computer Programmer

    b. Software Engineer/Designer

    (b) Whereas other agreements may provide for systems analysts (also allowed here), this expansion is a welcome addition for the IT industry.

    (c) There is a new type of ‘professional’; that is, “Independent Professionals”. These professionals can be engaged to provide service in Canada on their own. The categories for such professionals are:

    a. Architect

    b. Engineer

    c. Management Consultant, and

    d. Veterinarian

    (d) The intra-company transfer provisions specifically provide for management trainees. This seems to be a (welcome) departure from recent pronouncements that in intra-company applications generally, people who require training are not qualified as intra-company transferees.

    (e) Intra-company Transferees, Professionals, and Business Visitors do not require labour certification tests (e.g. licensing)

    (f) For seemingly the first time, the agreement indicates that Canada will normally accept oral declarations from business persons as to the place of business and accrual of profits, and that if further proof is required, a letter from the employer should normally be sufficient proof.

    Impact

    There are certainly many further issues and nuances which need to be canvassed if an organization wishes to benefit from the agreement, but the above factors are important advances in the nature of temporary immigration entry. If a Canadian company has close ties with South Korea, OR if a Canadian company wants to fill positions which may be hard to fill from other countries, the Canada-South Korea Free Trade Agreement is a welcome new legal tool.

    The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

    Reprinted with permission


    About The Author

    Benjamin A. Kranc Benjamin A. Kranc is senior principal of the firm, and has many years of experience assisting clients in connection with Canadian immigration and business issues. Ben is certified by the Law Society of Upper Canada as a Specialist in Immigration Law, and is one of only a select few to be chosen by ‘Who’s Who Legal’ to be a foremost practitioner in his field. He has spoken at numerous conferences, seminars, and information sessions – both for professional organizations and private groups – about issues in Canadian immigration law and has taught immigration law at Seneca College in Toronto. Ben has also written extensively. He is the author of a text on Canadian immigration law entitled “North American Relocation Law” (Thomson Reuters) and contributing immigration author of “The Human Resources Advisor” (First Reference Books).


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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