Out-Of-Warranty Repairs: Long Overdue Relief for Foreign Repair Personnel

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Background



Since the beginning of time (or so it seems), Canadian immigration law has had a large black hole from which no one could escape. That black hole was the ‘gap’ between the legal allowance for foreign repair personnel to service equipment in Canada while still under warranty or service agreement, but thereafter, the disallowance to carry out such service. Unless a repairperson could be characterized under some other non-LMIA category (e.g. Intra-Company Transfer or NAFTA/Free Trade Agreement professional), he/she would typically be unable to enter Canada to service the equipment (or would require an unduly burdensome LMIA). This was a source of great frustration. Canadian companies had equipment which legitimately needed service by an overseas vendor or expert, but there was no legal ‘tool’ by which to get these people to come to Canada.



What’s New



Effective May 21, 2015, this has finally changed. Citizenship and Immigration Canada (CIC) has recognized this problem (and indeed the harm it causes to Canada). To remedy the situation, CIC has expanded the non-LMIA work permit category of ‘Emergency Repair’ to include repairs/maintenance beyond the warranty or service period. (For those who wish to refer to the technical legal source, this would be LMIA Exemption Code C-13.)



‘Emergency Repair’ is a category that CIC has used to override the need for a Labour Market Impact Assessment, and thus, allow a foreign worker to apply directly for a work permit at a Port of Entry, or Visa Post, as the case may be. Until now, this exemption was available only to foreign workers to provide “emergency services, including medical services, for the protection or preservation of life or property”. This was a very limiting approach, and it was typically a difficult onus to satisfy an officer that there was urgency to the matter.



Now, this provision has been expanded to allow foreign workers to come to Canada “to repair industrial or commercial equipment that is no longer under warranty or covered by an after-sales or lease agreement”. This is a MAJOR change. The need to demonstrate “…protection or preservation of life or property” has been eliminated (or at least altered to accommodate this provision). This provision recognizes the need for preventative work and/or repair, without which there would be a negative impact on productivity (which, it would seem, is commonly the case in the need for maintenance or repair).



Program Requirements



This is indeed an important change. Please note, however, that there are still some conditions, including requirements that:




  • Specific knowledge is needed for the repair;

  • The manufacturer have no commercial presence in Canada; and

  • Canadian jobs would be greatly affected without timely repair/service.




Further, there is some specific documentation required, including:




  • A letter from the home employer with information to satisfy CIC of the employee’s status with the company and purpose of visit;

  • The IMM5802 – the ‘Employer Compliance’ documentation now required for all non-LMIA work permit applications; and

  • Evidence of the foreign employee’s proprietary or specialized knowledge to repair the equipment.




These work permits will be available for periods of up to 30 days – which is usually enough to complete the necessary work. Arguments can be made, where appropriate, for longer durations.



Summary



This is a very welcome breakthrough which finally addresses a problem which has caused great difficulties to Canadian companies, as well as the foreign companies/employees who are required to service them. Subject, as always, to meeting the substantive legal and procedural requirements, bringing foreign repair personnel to Canada should become much less cumbersome.



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









This post originally appeared on Kranc Associates. Reprinted with permission.






About The Author











Benjamin A. Kranc

Benjamin A. Kranc is senior principal of Kranc Associates, a leading Canadian corporate immigration law firm. He 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. He is also on the ‘Who’s Who Legal’ list of foremost practitioners in Canadian corporate immigration, as well as rated as AV Preeminent® in a Martindale-Hubbell peer review. Ben has spoken at numerous conferences, seminars, and information sessions – both for professional organizations and private groups – about issues in Canadian immigration law, and has also taught immigration law at Seneca College in Toronto. In addition, Ben has written extensively. He is the author of a leading text on Canadian immigration law entitled “North American Relocation Law” (Thomson Reuters) and contributing immigration author to the “The Human Resources Advisor” (First Reference Books). Ben can be contacted at (416) 977-7500 ext. 226, or bkranc@kranclaw.com.






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