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GO NORTH YOUNG MAN, GO NORTH: WORKING TEMPORARILY IN CANADA FROM AN AMERICAN PERSPECTIVE Asher Frankel and Gary Endelman
Copyright ?span style="mso-spacerun: yes"> 2000 West
Group; Asher Frankel and Gary Endelman
Current U.S. immigration law is characterized by provisions that
are of great concern to nonimmigrant workers, and that face little
prospect of speedy or favorable resolution by Congress. Examples of such
provisions are the cap on the number of persons admissible in the H-1B
category, which seems to be reached earlier each fiscal year; the
limitation on periods of permitted stay for certain nonimmigrants (six
years for H-1Bs and five to seven years for L-1s); the per-country
numerical limits for persons seeking permanent resident status, which
have resulted in multi-year backlogs for citizens of certain countries;
and the complex bureaucratic procedure in applying for permanent
residence, including the labor certification process, fingerprint
clearance, and other security procedures mandated by Congress, all of
which have resulted in lengthy delays in achieving permanent residence.
As these concerns weigh more heavily on the foreign worker in the
U.S., the lure of Canada grows as a strategic alternative to both
employee and employer and their counsel. Long dismissed by most U.S.
companies and immigration lawyers as an intriguing irrelevancy, the many
different opportunities that Canada offers for temporary employment,
extending not just to the principal alien, but also to the working
spouse, deserve the kind of serious consideration that they have never
received, but now command as a core component of intelligent immigration
planning. Indeed, many U.S. companies view Canada as a favorable venue
for their employees and, as part of their overall human resource and
immigration planning, are now establishing Canadian operations.
In this context, this article examines, from the U.S.
practitioner's vantage point, how our clients can work temporarily in
Canada and what lessons can be learned from the Canadian
experience. Wherever possible, parallels will be drawn and contrasts
made to the U.S. system. SOURCES
In contrast to Canada's immigrant visa jurisprudence, which is
generally universally applicable to nationals of all countries, Canada's
immigration provisions relating to nonimmigrants are of two types: those
that are universal in their application to all nationalities, and those
that are relevant only to citizens of certain countries.
The universal provisions are contained in the Immigration Act of
1976-77 (Immigration Act),
the Immigration Regulations of 1978 (Immigration Regulations), and other
regulations under the Immigration Act. Another primary source for
immigration policy and procedure is the Canadian Immigration Manual
(Immigration Manual), which very recently published the Foreign Worker
Volume (FW Manual), a comprehensive compendium of all provisions
relating to nonimmigrants contained in all other volumes of the
Immigration Manual system. Finally, interim provisions not included in
the Immigration Manual, including those describing so-called "pilot
projects," are contained in Operations Memoranda (OMs).
Non-universal or country-specific provisions are contained in
bilateral and multilateral agreements to which Canada is a signatory.
These agreements contain immigration provisions concerning temporary
entry of business persons, and, like any other commercial contracts, are
only binding upon the signatory parties. The best known such agreement
is the North American Free Trade Agreement (NAFTA), signed by the U.S.,
Canada, and Mexico.
Canada's implementation of Chapter 16 of the NAFTA, dealing with
the cross-border movement of business persons, has been different from
that of the U.S. Canada has chosen to implement Chapter 16 without
amendment to the Immigration Act, and with only three minor amendments
to the Immigration Regulations (subsection 19(1)(w) was added and
subsections 20(5)(b) and 19(4)(p) were amended). Canada's implementing
procedures have been formulated primarily through administrative
policies and procedures in the Immigration Manual.
It should be noted that only citizens of the U.S. and Mexico may
be granted entry to Canada pursuant to the NAFTA. Neither permanent
residents nor temporary nonimmigrants qualify. Furthermore, citizens of
Guam, the Northern Mariana Islands, American Samoa, and the U.S. Virgin
Islands are not considered to be citizens of the U.S. for purposes of
NAFTA entry into Canada.
In its implementation of the NAFTA, Canada has borrowed, often on
a wholesale basis, concepts and definitions from U.S. immigration law,
which sometimes fit uneasily into the Canadian immigration system.
Whether we are speaking of what specialized knowledge means, or how
elastic the concept of a business visitor can be, the American approach,
as adopted by Canada, is occasionally not consistent with related
Canadian immigration provisions. It is not necessary to explain NAFTA to
U.S. lawyers, but it is instructive to point out that how the U.S.
implemented NAFTA has served to shape the Canadian response, and that
such response departs, in subtle nuance on select occasions, from the
way in which Canada is used to dealing with related issues. These
departures are described below.
A lesser-known, but no less important, multilateral agreement is
the General Agreement on Trade in Services (GATS), which came into force
on January 1, 1995, under the World Trade Organization (WTO) umbrella.
More than 130 member nations ratified the GATS, including Canada, the
U.S., India, South Africa, most European and many African countries. The
GATS is only applicable to citizens of a member country, who are
resident in a member country, where the commercial activity is within
certain specified business service sectors. The GATS immigration
categories mirror those of the NAFTA relating to business visitors,
professionals, and intracompany transferees. While the U.S. has not
implemented any provisions under the GATS, Canada has formulated
comprehensive guidelines for the temporary entry of nationals of the
signatory countries, as described below.
The only other international agreement containing immigration
provisions to which Canada is currently a signatory is the bilateral
Canada-Chile Free Trade Agreement (CCFTA), which came into force on July
5, 1997, and which is modeled, virtually verbatim, on the NAFTA. Thus,
in formulating a strategic plan for temporary entry into Canada, one
must bear in mind the nationality of the applicant, and the proposed
business activity, as additional strategies may be available beyond
those permitted by the universal provisions.
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