Foreign Talent for Canadian Cannabis Companies, Part II
Drilling Down in the ‘Professionals’ Category for Work Permits
By GUEST BLOGGER Benjamin Kranc, certified as a Specialist in Immigration Law by the Law Society of Ontario. Benjamin can be found at kranclaw.com.
Disclaimer: The information in this article is for general purposes only, and not intended as legal advice. Please contact a qualified immigration lawyer for assistance.
In “Foreign Talent for Cannabis Companies, Part I”, we presented various options available to secure foreign workers to work in Canada’s cannabis industry. Since then, the world has of course changed due to COVID-19, but it is still possible to travel to Canada for work, with various caveats.
The public may hear that ‘the border is closed’, but that is actually not correct when it comes to travel for work.
Certainly there are new procedures are in place to protect people from the pandemic, but it is still possible to secure a work permit in many cases.
The U.S. border was expected to reopen for general travel on July 22, 2020, but restrictions were kept in place for another 30 days. Travel from other places is restricted, even with a valid visitor visa or electronic travel authorization; the restrictions are set out on the Government of Canada’s website.
However, temporary foreign workers are exempt from travel restrictions, depending on the country from which they come and the nature of their work. If travelling from the United States, whether or not a U.S. citizen, a temporary foreign worker can still apply for a work permit on arrival, as before, although it will be useful to stress the importance of the need to work in Canada.
If travelling from any location other than the United States, then an online application will be needed and it will be necessary to demonstrate that the work is ‘essential’ as per the specific sectors established by Public Safety Canada. Notably, one of the essential services is manufacturing.
Please note that separate from the immigration issues, all persons – even Canadian citizens – must quarantine for 14 days on arrival, unless they are in an essential service.
With all this in mind, here is some information that may be of value to companies in the cannabis industry seeking foreign workers, and to the foreign workers they seek to employ.
Our prior article provided an overview of categories applicable to foreign workers seeking to work in the cannabis industry. Among the strategies are intra-company transfers, reciprocal benefit applications, significant benefit applications and various ‘professionals’ provisions, depending on the country of origin.
All these categories provide for work permits on the basis of an exemption from a Labour Market Impact Assessment (‘LMIA’). An LMIA is a procedure which typically requires recruitment and takes time, effort and higher cost. As such, we are almost invariably seeking to avoid LMIAs, unless unavoidable. While beyond the scope of this article, there are some versions of LMIAs that are streamlined, and that may be of value in some cases.
Today, we will to drill down a little further into one of those LMIA-exempt categories, namely, the professionals.
Primary ‘Professionals’ Considerations
When it comes to securing work permits for foreign professionals in Canada (which in some cases will include technicians), there are two initial primary issues:
A. Country of Origin: what country is the prospective foreign worker from?
B. Credentials: what are the professional’s credentials and how do they match with the requirements of the relevant treaty?
A. Country of Origin
‘Professionals’ categories exist only in the context of bilateral or multilateral free trade agreements or other international instruments. There is no actual ‘professionals’ category under the general law; there are only professionals if a treaty with another country allows for them. Different treaties have different considerations. Also, treaties may have other provisions like intra-company transfers, but today, we are focusing only on the ‘professionals’ category within treaties/free trade agreements.
The free trade agreements with Canada that currently provide for professional work permits from other countries are:
- Canada-United States-Mexico Agreement (CUSMA; formerly NAFTA) – applicable to citizens of the United States and Mexico. (Please note that while the new agreement is now in force, the immigration provisions remain essentially unchanged from NAFTA.)
- Canada-Chile Free Trade Agreement (CCFTA) – applicable to citizens of Chile.
- Canada-Peru Free Trade Agreement (CPFTA) - applicable to citizens of Peru.
- Canada-South Korea Free Trade Agreement (CSKFTA) - applicable to citizens of South Korea.
- Canada-Colombia Free Trade Agreement (CCoFTA) - applicable to citizens of Colombia.
- Comprehensive Economic and Trade Agreement (or Canada-European Union Trade Agreement) (CETA) - applicable to citizens of European Union countries.
- Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) – applicable to citizens of: Australia, Brunei, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam.
- General Agreement in Trade and Services (GATS) – a sister instrument to the better-known GATT – General Agreement on Tariffs and Trade, applicable to citizens of some 164 countries (members of the World Trade Organization), including (as a small sample): Argentina, China, Greece, India, South Africa, Russian Federation, and the United Kingdom (whose citizens will not qualify for CETA work permits after December 31, 2020). A full listing of member countries can be found here.
If a country is a party to both a multilateral instrument (e.g. CPTPP or GATS) and a free trade agreement, either may be used.
Depending on the treaty, there are three concepts for professional-type work permits: 1. a positive list, 2. a negative list and 3. contractors/independent service providers. Some may use more than one of the concepts.
- Positive Professionals Lists. In some cases, the treaty specifically names the occupations that qualify for work permits, such as:
- CUSMA -- Some 60 professions. A full list can be found here. Among those listed are:
- Computer Systems Analyst
- Management Consultant
- Scientists, including Plant Pathologists, Chemists and Horticulturalists and related Scientific Technicians
- CCFTA -- The list is similar to CUSMA (as the treaty is based on NAFTA/CUSMA), but there are differences, and it is important not to take the similarities for granted.
- CPFTA -- Though there is a negative list for professionals, there is a positive list for technicians. These include:
- Various Engineering Technicians
- Computer and IST Technicians
- CCoFTA -- Similar to CPFTA
- CSKFTA -- There is a list of professions, but they are under an independent professional/contractual service provider categorization. (See “Independent Professionals/Contractual Service Providers” below)
- GATS -- GATS has a limited number of professionals, which include:
- Senior Computer Specialists
- Negative lists. In some cases, there is a list of professionals who cannot qualify for work permits; those not listed would be able to seek a work permit. This would apply to:
- CPFTA -- Excluded professions include:
- All Health, Education, and Social Services and related occupations
- Manufacturing Managers
- Judges and Lawyers
- CCoFTA -- Similar to CPFTA
- Independent Professionals/Contractual Service Providers. In some cases, there is no list of professionals – positive or negative. Rather, professionals, and in some cases, technicians, at a certain occupational/educational level can work in Canada, based on criteria to be further discussed below. This would apply to:
- CETA -- Requires university level education. A Service Provider applicant must have been with EU entity for at least one year and have at least three years’ experience in the relevant field. An independent applicant will be self-employed and have at least six years of experience in the relevant field.
- CSKFTA -- This treaty has a ‘professionals’ list and an ‘independent professionals/service providers’ hybrid list. Although the treaty indicates that certain independent professionals and service providers can apply based on educational level, it then lists specific occupations within each of those classifications.
- For independent professionals, occupations include:
- For contractual service providers, occupations include:
- Plant Pathologist
- CPTPP -- Similar to CETA, CPTPP is expanded to include technicians as well.
- For independent professionals, occupations include:
The knowledge of country of origin and general occupational considerations must be juxtaposed with an assessment of the person’s credentials, and how they jive with the treaty in question.
When it comes to assessing credentials and matching them to the treaties’ requirements, consideration must be given to the occupation’s 4 digit ‘National Occupational Classification’ or NOC. The NOC is divided into a grid with columns for occupational sectors, and rows for occupational level. It is the NOC that determines the level of job within a sector.
Sectors include business, natural and applied sciences, health occupations and occupations in education, law and social, community and government services. But in each sector, the NOC levels remain consistent.
There are five levels of each NOC within each sector:
- NOC 0: Managerial level occupations
- NOC A: Professional occupations (usually requiring a university degree)
- NOC B: Technical Occupations and Skilled Trades (usually requiring a college diploma or apprenticeship training)
- NOC C: Intermediate occupations (usually requiring a secondary education)
- NOC D: Labour occupations (on the job training)
Given the NOC breakdowns, when we speak of professionals, they will generally be at the NOC A level, and sometimes, for a more senior person, at the NOC O level. When we speak of technicians, they will generally be at the NOC B level. As such, it is crucial for any prospective applicant (as well as his/her employer) to determine (a) what the appropriate NOC is based on the person’s background, and (b) whether that NOC is acceptable for the purposes of the specific ‘professionals’ provision which is being sought to be utilized.
Each NOC description can be found here.
It is imperative to ensure that the applicant’s credentials substantially match the requirements of the NOC being sought to be used. No matter what the title of the job is, it is the substance of the NOC description that determines relevance.
C. Other Factors to Consider
In addition to all the considerations discussed above, there are other factors to consider when seeking to hire a foreign worker under a professionals category. Here are a few examples of the types of issues that arise:
- GATS professional work permits are valid for a maximum of three months in any twelve-month period. So, you may be able to get your ‘computer specialist’ to Canada, but only for three months. This often begs the question: Is it even worth pursuing? There are two answers:
- Maybe you only need three months, in which case, of course, it is worth pursuing, and
- The value of the GATS professional work permit may be a bridging of time while a Labour Market Impact Assessment (‘LMIA’) is sought in the background. If that can be secured, then the foreign worker can essentially be ‘transitioned’ to an LMIA based work permit seamlessly.
- CETA professional work permits are also time limited for 12 months in a 24-month period (with discretionary extensions). But in some cases, this may be enough for a transition to permanent residence, and in any event, the same logic as with GATS professional work permits may apply.
- Where there is a choice between applying for a professional-based work permit and another type of work permit (e.g. intra-company transfer, ‘ICT’), and depending on the time or other limitations of the particular ‘professionals’ category, it is important to recognize that transferring to another employer on a professional work permit may be easier than an ICT.
- There are differences vis-à-vis professional accreditation under different treaties. For instance, NAFTA professionals do not need to obtain licences or letters of no objection from provincial licencing authorities; dissimilarly, GATS professionals require letters of no objection.
- Though the regulations/guidelines/etc. relating to professionals categories usually speaks of ‘employment’ in Canada, that usually does not have to be a standard employer-employee relationship. Quite often, the applicant is on a contract or is the employee of a company that has a contract with a Canadian company. In the process of filing for a work permit, the Canadian company sponsoring the application must file an Offer of Employment, and is referred to as the employer. Many Canadian entities are reluctant to file this offer since they do not see themselves as the actual employer. However, in reality, the Canadian entity is more like a ‘beneficiary’. As such, the Canadian entity should be filing the offer, even if it is not directly paying the employee. The fact that the Canadian entity is not paying the employee directly can be explained in the filing process.
- Depending on the instrument, there are issues of the wage that a foreign worker is entitled to, typically classified as ‘median wage’.
Companies directly or indirectly involved with the cannabis industry can make good use of LMIA exemptions that allow professionals/technicians from certain countries to work in Canada. Caution must be exercised though, as there are many nuanced issues, some of which appear above. But if you wish to seek a foreign worker from any country with which Canada has a treaty, then consider the available ‘professionals’ categories.