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PRELIMINARY
CONCEPTS ?
Visitor Status
All persons lawfully seeking to enter Canada who are not Canadian
citizens or permanent residents must obtain visitor status. Unlike U.S.
immigration law, with its myriad nonimmigrant categories, under Canadian
law all nonimmigrants are characterized as "visitors," which
envisages only three basic subcategories: students, workers, and all
others (principally tourists). Visitors are authorized to enter Canada
for a specified period of time and are not permitted to study or engage
in employment unless specifically granted authorization to do so by a
visa officer or an immigration officer. This is further distinguishable
from U.S. law wherein, save for rare exceptions, visitor status (B-1,
B-2) does not carry with it the opportunity to apply for an employment
authorization document (EAD).
A visitor is defined as a person seeking entry for a temporary
purpose. The case law has
developed the principle that a temporary purpose can be established if
the period of the visit is not indefinite in duration. Unlike U.S.
jurisprudence, which requires visitors to demonstrate a specific
departure date, under Canadian law one can have a temporary purpose
without a specific departure date as long as the length of the stay is
not indefinite. Having stated this, it is always better to be able to
demonstrate a specific departure date as this lends credibility to the
temporary purpose. ?
Visitor Visa
The concept of the visitor visa is separate and distinct from the
concept of visitor status. A visitor visa is a stamp issued by a visa
officer and placed in the passport at a visa office outside Canada. The
stamp indicates a period of validity of the visa and also the number of
entries for which the visa may be used. The purpose of the visa is to
indicate to the immigration officer at a port of entry in Canada that
the applicant has been examined by a visa officer overseas and appears
to be admissible to Canada. The visa itself, however, is not a guarantee
of admission to Canada. As with the law in the U.S., the final decision,
as to admission in visitor status and duration of status, is made by an
immigration officer at the port of entry.
Not all nationalities are required to be in possession of a visa
in order to obtain entry into Canada. Long before the U.S. implemented
its Visa Waiver Pilot Program (VWPP), Canada pioneered Schedule II to
the Immigration Regulations, which is a listing of the nationalities
that are visa exempt, i.e., no visa is required in order to seek entry
into Canada as a visitor. The list incorporates some 65 countries,
including Mexico, most western European countries, and the U.S.
(citizens and permanent residents). The practitioner should be aware
that this list changes from time to time and, therefore, the most recent
version should always be consulted.
It is noteworthy that Canada's list of visa exempt countries is
not linked to reciprocity, e.g., both U.S. citizens and U.S. permanent
residents, regardless of nationality, are visa exempt. By contrast, only
those landed immigrants of Canada who share historic and cultural ties
with Canada, such as citizens of British Commonwealth countries, need
not have a visa to enter the U.S. Furthermore, there are no special
restrictions on those admitted to Canada pursuant to Schedule II, unlike
those admitted to the U.S. under the VWPP. ?
Definition of Employment
The Immigration Act defines employment as "any activity for
which a person receives or might reasonably be expected to receive
valuable consideration." This definition is broad and includes
activities for which one would normally expect to receive remuneration,
whether or not payment is actually made. It is defined this way to
prevent individuals from circumventing the law by entering into
employment arrangements where no direct payment is made but rather other
forms of remuneration are contemplated, such as free room and board.
From time to time the term "employment" has been
subjected to interpretation by the courts. The Federal Court has ruled
that in some circumstances the relationship between the parties is such
that it would not be reasonable for the person to be paid for assisting.
For example, in cases where the person assists in a family business
while on vacation, it is arguable that this is not a situation for which
remuneration would normally be paid.
Furthermore, the FW Manual states: "The basic concern of the
Act is whether or not a work opportunity is being denied a Canadian
citizen or permanent resident because of the assistance given by a
foreign visitor to the person being visited. If jobs for Canadians are
not affected the assistance might not be construed as employment." ?
Employment Authorization
A person admitted to Canada as a visitor will generally be
subject to certain terms and conditions. Subject to the exemptions
defined below, a visitor must also possess an employment (or a student)
authorization in order to engage in employment (or student) activities
in Canada. An employment authorization is a document that is, in most
circumstances, somewhat similar to an I-94; it is issued at a port of
entry based on an approval issued by a visa officer outside Canada who
adjudicated an application for an employment authorization. Generally,
the employment authorization will contain terms and conditions with
respect to the name of the employer, the title of the occupation, the
location of employment, prohibitions as to attending any educational
institutions, and the departure date. Also similar to the I-94, where an
extension of status is obtained a new employment authorization is
issued.
The use of this document in Canada, however, is distinguishable
from U.S. nonimmigrant employment categories, such as H-1B, E, O, P, and
L, wherein employment is considered integral to the visa issued, and
therefore no EAD is necessary. Pursuant to Canadian law, the employment
authorization will allow the person to work while in Canada, but in
itself does not grant admission into Canada in visitor status. Thus, if
a person holding an employment authorization is not a citizen of a
Schedule II country, he or she must also possess a valid visitor visa in
order to gain admission into Canada.
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