More options for Employers looking to facilitate Global Mobility: The Comprehensive and Progressive Agreement for Trans-Pacific Partnership

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) entered into force on December 30, 2018 when six of the 11 member countries including Australia, Japan, Mexico, New Zealand, Singapore and Canada, ratified the agreement. On January 14, 2019, Vietnam also ratified the agreement. The CPTPP is a free trade agreement between Canada and 10 other countries in the Asia-Pacific region. Once fully implemented by the 11 countries, it will form a trading bloc representing 495 million consumers and 13.5% of global GDP making it one of the largest free trade agreements in the world.

The CPTPP and Temporary Immigration to Canada

The CPTPP contains provisions that facilitate temporary work or entry permits for citizens of certain member countries employed by Canadian companies, under the principle of reciprocity. Foreign nationals who have employment offers, or pre-arranged contracts, with Canadian companies, can qualify for a temporary entry permit under one of the CPTPP’s permit streams without requiring the Canadian company to obtain a Labour Market Impact Assessment (LMIA) or be bound by numerical restrictions (quotas).

The temporary entry permit streams under the CPTPP are:

• Business Visitors
• Investors
• Intra-company Transfers
• Professionals and Technicians

Business Visitors

Citizens of member countries can obtain temporary entry permits for up to six months provided that the primary source of remuneration for their proposed business activity and the principal place of business and accrual of profits is outside Canada.

Business visitor applicants will be initially assessed against the provisions found in the CPTPP. In cases where they are not covered under the CPTPP, they may qualify under general business visitor provisions contained in Canadian immigration regulations.

To qualify under the CPTPP, the proposed business activity for visitors seeking entry must be one of the following:

• Meetings and Consultations: including meetings, seminars, and conferences.
• Research and Design: technical, scientific, or statistical researchers conducting independent research or research for an enterprise in another member state, not Canada.
• Manufacture and Production: purchasing or production management personnel conducting commercial transactions for an enterprise outside of Canada.
• Marketing: market researchers or analysts conducting independent research or analysis for an enterprise in a party other than Canada. This category includes trade-fair and promotional personnel attending a trade convention.
• Sales: sales representatives or agents taking orders or negotiating contracts for goods or services for an enterprise outside Canada or purchasing goods for an enterprise in a party other than Canada.
• Distribution: transportation operators who are transporting goods or passengers from the territory of a party to Canada or loading and transporting goods or passengers from Canada to the territory of another party without unloading in Canada.
• General Service: including;
  • professionals engaging in a business activity at a professional or technical level
  • management and supervisory personnel engaging in a commercial transaction for an enterprise, not in Canada
  • financial services personnel (insurers, bankers, and investment brokers) engaging in commercial transactions for an enterprise, not in Canada
  • tourism personnel (tour and travel agents, tour guides, and tour operators) attending or participating in conventions or conducting a tour that began in another member country
  • translators or interpreters performing services as employees of an enterprise, not in Canada

In addition to the above, citizens of Australia, Mexico, and New Zealand can obtain a temporary entry permit for after-sales or after-lease services. Eligible personnel with specialized knowledge of a seller or lessor’s contractual obligations (such as installers, repair and maintenance personnel, and supervisors), can gain temporary entry for the purpose of performing services covered by warranty or service contract related to the sale or lease of a commercial or industrial equipment or machinery (including computer software). The equipment must have been purchased or leased from an enterprise located in a country other than Canada.

Investors

This category is available to citizens of Australia, Japan, Mexico or Vietnam, who have invested a substantial amount of capital into Canada. Investors are defined as businesspersons seeking to establish, develop, or administer an investment to which the businessperson or his/her enterprise has committed, or is in the process of committing, a substantial amount of capital. The businessperson must also be in a capacity that is supervisory, executive or involves essential skills. Investors can apply for a work permit for up to one year, with possible extensions.

Intra-company transfers

Intra-company transferees are business persons employed for at least one continuous year in the preceding three-year period by an organization in any member country abroad and will be employed in Canada by an affiliated entity. The transferee must be a citizen of a CPTPP signatory country. However, permanent residents of some countries may also qualify under this category. Intra-company transferees can qualify for a temporary work permit for up to three years, with the possibility of extension.

In order to qualify for this stream, the businessperson must be an executive, manager, or be a specialist with specialized knowledge. Executive or manager is defined as a businessperson engaged in specific activities outlined in the CPTPP. A specialist is an employee with specialized knowledge of the company’s products or services and their application in international markets or an advanced level of knowledge of the company’s processes and procedures.

The CPTPP contains an additional category under intra-company transfers that was not previously available under the General Agreement on Trade in Services (GATS): management trainee on professional development.

In order to qualify as a management trainee on professional development, an employee must have a post-secondary degree and the work assignment must broaden that employee’s knowledge of and experience with the company in preparation for senior leadership roles in the company.

Intra-company transfers to Canada under the CPTPP are currently available only for citizens of Australia, Japan, Mexico and New Zealand.

Professionals and Technicians

Highly-skilled professionals and technicians can obtain one-year temporary work permits. There are requirements in place to ensure that professionals and technicians coming into Canada are paid the prevailing wage, have a licence or certification if in regulated professions, or have demonstrated evidence of required education and work experience, and be able to communicate in English or French. The CPTPP has a list of specific occupations that are permitted under this category on a country-by-country basis.

To qualify as a professional, the applicant must have the following:

• a post-secondary degree of four or more years, unless otherwise specified in the country-specific occupation list, and any additional requirements defined in the National Occupational Classification (“NOC”); and
• paid work experience of at least two years in the sector of activity of the prearranged services.

To qualify as a technician, the applicant must have the following:

• a post-secondary or technical degree of two or more years, unless otherwise specified in the country-specific occupation list, and any other minimum requirements for entry defined in the NOC; and
• paid work experience of at least four years in the sector of activity of the pre-arranged services.

Takeaway

The CPTPP increases the range of options available for obtaining temporary work permits for certain foreign nationals similar to other free trade agreements. However, implementation of these provisions and their interaction with existing immigration regulations will be subject to interpretations that are yet unclear. If you require more information or have questions relating to any of the above, please contact the Toronto workplace immigration lawyers at Sultan Lawyers by telephone at 416-214-5111, by here, or by filling out the form below.