Section 187 of the Immigration and Refugee Protection Regulations (IRPR) defines the criteria for entry as a business visitor. This broad category facilitates the entry of persons to Canada who intend to engage in international business or trade activities, its criteria for entry and parallel the North American Free Trade Agreement (NAFTA) business visitor criteria. Subsection R187(3) provides the general criteria that must be met, and subsection R187(2) provides specific examples, which are meant to be illustrative.
Examples of activities in this category include
- activities of persons providing after-sales services;
- activities of foreign government officials not accredited to Canada; and
- activities of certain foreign nationals in the commercial (i.e., advertising) production industry, or the film or recording industry.
- There must be no intent to enter the Canadian labour market (i.e., no gainful employment in Canada).
- The activity of the foreign worker must be international in scope (i.e., that is, there is the presumption of an underlying cross-border business activity, e.g., after-sales service).
- There is the presumption of a foreign employer, as
- the primary source of the worker’s remuneration remains outside Canada;
- the principal place of the worker’s employer is located outside Canada;
- the accrual of profits of the worker’s employer is located outside Canada.
Note: Business visitors should have all relevant documents on hand to present to the officer when seeking entry to Canada, including letters of support from the business visitors parent company and a letter of invitation from the Canadian host business. A verbal statement that the business of the applicant is being carried on outside Canada can be acceptable; however, alternative indications (business cards, business papers, advertising pamphlets, etc.) may be helpful.
Example: A U.S.-based company provides marine maps and computer software to commercial and private mariners, including sports fishermen. The U.S. company has no subsidiaries or affiliates in Canada. The company wants to map the Lake of the Woods, most of which is in Canada, using sophisticated marine mapping devices. The end product will be marine maps and computer software that will assist mariners in navigating the Lake of the Woods. These products will be commercially available to anyone who wants to purchase them. In order to do this, the company needs to send two of their employees, along with a boat-load of this equipment, to circumnavigate the Lake of the Woods, take depth and other readings, and return to the U.S. with their findings. Their findings will, in turn, be used to produce the marine maps and computer software. Since there is no Canadian employer contracting for their services, and since the U.S. company will be the direct beneficiary of the foreign workers’ efforts, business visitor criteria are satisfied.
After-sales and lease services
After-sales and lease services include those provided by persons repairing and servicing, supervising installers, and setting up and testing commercial or industrial equipment (including computer software). Setting up does not include hands-on installation generally performed by construction or building trades (electricians, pipe fitters, etc.).
Section R187 also applies to persons seeking entry to repair or service specialized equipment purchased or leased outside Canada, provided the service is being performed as part of the original or extended sales agreement, lease/rental agreement, warranty or service contract.
After-sales and lease services also include situations where the sales or lease agreement or purchase order is for a software upgrade to operate previously sold or leased equipment. A service person coming to Canada to install, configure or give training on the upgraded software should receive consideration as a business visitor, as long as the after-sales or lease services activity is clearly articulated in the new sales or lease agreement or purchase order. A sales or lease agreement or purchase order for upgraded software is a new contract for a new product. As with NAFTA, hands-on building and construction work is not covered by this provision.
Warranty or service agreement
Foreign workers who are not considered business visitors (NAFTA professionals and other service providers)
Trainers and trainees
Intra-company training and installation activities
Board of directors’ meetings
A person attending a meeting as a member of a board of directors may enter as a business visitor. Normally, these people attend quarterly meetings. They are legally charged with the responsibility to govern an organization or corporation, for example, by
- selecting and appointing a chief executive officer;
- governing the organization by setting broad policies and objectives;
- accounting to shareholders for products, services and expenditures.
While a board member may be well remunerated for their advice and expertise, they are considered to be a business visitor under section R187. There is a great deal of international mobility in this activity, and there is no real direct entry into the Canadian labour market.
Employees of short-term temporary residents
Persons employed in a personal capacity, for example, as a domestic servant, personal assistant or nanny (caregiver), on a full-time basis by short-term temporary residents, generally meet the business visitor criteria in paragraphs R187(3)(a) and (b) and may enter as such.
If the visiting employer extends their stay in Canada such that their employee is no longer considered to be working predominantly outside Canada, or their employee’s primary source of remuneration can no longer be considered to be outside Canada, then that personal employee is no longer considered to be a business visitor and may be required to seek a work permit and an LMIA to continue working. A stay of longer than six months is normally found to exceed the threshold required by paragraph R187(3)(b).
Employees of foreign companies contracting Canadian companies
There are situations where foreign companies contract Canadian companies to provide services for them in foreign jurisdictions. It is not uncommon, where distances are great, for the foreign company to send one or more of their employees to Canada to ensure that the Canadian company is doing the job that they are contracted to do in a manner that meets the approval of the foreign company. Sometimes, these foreign nationals may be in Canada for up to two years.
Where a foreign company sends an employee to Canada to control or inspect the quality of a product that they have contracted, the foreign employee may receive consideration as a business visitor. Officers should consider whether the
- employee remains an employee of the foreign company;
- employee remains on the payroll of the foreign company;
- foreign company remains the beneficiary of the employee’s efforts;
- foreign company’s principal place of business remains outside Canada.
Example: A foreign infrastructure company is building a new university in the foreign country. The foreign company contracts a Canadian architectural firm to do the architectural work. The foreign company wants to send one or more of their engineers to Canada to ensure that the work of the Canadian architectural company is being done according to their standards and desires. The foreign employees may be in Canada for up to two years.
The fact that they will be in Canada for more than six months is irrelevant, since their principal place of business remains outside Canada.
Commercial (i.e., advertising) shoots
The following foreign nationals may be considered under the business visitor category:
- film producers employed by foreign companies for commercial shoots (for film co-producers, refer to T11 non-trade agreements); and
- essential personnel (e.g., actors, directors, technicians) entering Canada for short durations (typically no longer than two weeks) for a foreign-financed commercial (i.e., advertising) shoot (for television, magazines or other media).
The onus is on the applicant to provide any and all relevant documentation that would support a request for a work permit exemption under the business visitor category.