CIP 129 -GATS
Intro 00:01 The Canadian immigration process can be complex and frustrating. With the Canadian Immigration Department making it virtually impossible to speak to an officer, there are a few places to turn to for trusted information. The Canadian immigration podcast was created to fill this void by offering the latest on immigration law policy and practice. Please welcome ex immigration officer and Canadian immigration lawyer Mark Holthe as he is joined by industry leaders across Canada sharing insight to help you along your way.
Mark Holthe 00:45 Welcome back to another episode of the Canadian immigration podcast. I'm your host, Mark Holthe. And I'm here once again with my faithful copilot Alicia Backman-Beharry. How're you doing, Alicia?
Alicia Backman-Beharry 00:56 I'm doing well mark. And we thought we would get back to some of the tried and true aspects of business immigration law and start talking about one of the free trade agreements that applies to probably the most countries out there, but probably might be the least used on a regular basis. But it does cover a lot of bases. And that's the GATS. So the general agreement on trades and services.
Mark Holthe 01:24 And I think most of us, when we're looking at, you know, obtaining work permits for professionals and intercompany transfers, we always tend to well, at least on the intercompany transfer side, we just use the the general provisions. And the and when it comes to professionals. Sometimes they're unique situations that that just don't quite fit into the norm. And it's always good. Although GATS tends to be an afterthought for most of us business immigration lawyers out there, it's always good to just take a peek at the GATs, which is the general agreement on trade and services and see if depending on the the length of stay, because usually these are designed for more short term entries. But there are some unique parameters. And yeah, Alicia, let's dive in. And this episode is going to be a little bit shorter than some of the other ones that we've done in the past. But this is more just an awareness of what's out there so that if this situation arises, you will know that this could be a potential option for you. All right, so why don't you kind of just give a little introduction, Alicia, to the to this, you know, this category that's been in existence for as long as I've been practicing.
Alicia Backman-Beharry 02:36 It's been out there for a very long time. And the ability to use it depends on whether the candidate or the applicant that you're bringing in has member status as a citizen of one of the member nations through the World Trade Organization. And so this list of world trade organization members changes frequently. It's funny on the IRCC website, they still have the figures, the numbers from 2005. And then the link to the World Trade Organization website only has it updated to 2016. So as of 2016, there are 164 member nations. So if you happen to have an applicant who's a citizen, you can you can only have citizen of one of these member nations. And the only exemption is if you have a candidate who is a
permanent resident in Australia, or New Zealand. So first off, you know, this is not an option unless the candidate that you're looking at happens to have citizenship in one of the WTO member nations or is a PR of Australia or New Zealand. And just to situate our listeners, we are still talking about LMIA exempt work permits. And theoretically GATS applies to you know, what you could come in as a business visitor and ICT but those are usually under the regular provisions. So really what gas is focusing on are the professionals. And so if you happen to have a professional and it's only a group one or group two professional who's covered by GATs, then this could be an option, but as you alluded to mark, the reason that I personally very, very, very rarely would use GATS is because there is a very strict 90 consecutive days, three month cap on the duration of any work permit that's issued under GATS.
Mark Holthe 04:26 No Alicia with that, you know, the the parameters, at least around this work permit indicate a maximum of three months or 90 consecutive days within a 12 month period. So I've never tried to have someone who is parachuting in and out you know, try to stretch that throughout the whole year. But do you think that's possible? Or are they only going to issue a 90 day work permit? And, and that's it, right? Because you pretty much have to say officer This is I'm only here for a week. So please just issue me a one week work permit and you're paying $230 Each time for the International ability, you know, the offer of employment. But, you know, I'm always looking, okay, how can I extend this because it does say a maximum of three months, but just you can't do more than 90 consecutive days. So just food for thought. I don't know if any of our colleagues out there has tried that technique, but it would be pretty cumbersome.
Alicia Backman-Beharry 05:24 I'm guessing they would only issue Yeah, any individual work permit for up to three months. I'm guessing that's probably what the term would be. But they do say that when so for the officers, they do say that the period or the duration of the work permit should be tied to the scope of the project. And so, you know, if you tried to come in on projects, and you're going to exceed your three months, or your 90 days, then I'm sure that probably shut you down.
Mark Holthe 05:48 Yep, I agree. All right. So let's keep going and just provide kind of a general overview of some of the basic requirements and what the permit looks like in the end, ability to extend all those kinds of things. Or lactiflora ability.
Alicia Backman-Beharry 06:08 Right, and we'll tackle the ability to extend right away, which is, there is none. So a lot of times for other corporate business immigration strategies, you know, we will suggest that somebody either do an LMIA and then they can have that person come in, and if the candidate wants to transition to PR, then you've got the points on the LMIA, they can earn their Canadian high skilled work experience, or maybe they're doing the imp program, and they're doing an employer specific work permit under another free trade agreement, and then they can transition to pure that way. Well, GATS is not really a good candidate for this, it is only that three month 90 day period. And then there are no extensions possible at all. So keep that in mind that if you are bringing someone in under GATs, I guess it could be a stopgap measure, like if you were still in the advertising phase of an LMIA. And you were waiting for
that LMIA to come in. Or maybe you had something else needing to fall into place on getting in another free trade agreement application. So maybe you could use it for that. But otherwise, there are no extensions possible under GATS itself.
Mark Holthe 07:14 You know, when I think about this category, leadership, you know, one of the things that most people ask I'm a professional, and I have a job offer in Canada. And I'm, I'm, you know, I'm citizen of one of the member countries. And if we looked, you know, as we did, if you go back the listeners and listen to the podcast episode for Kusuma, the Canada US Mexico agreement, the the professional category is quite broad. So aside from not hanging out a shingle, in other words, just being self employed, it doesn't allow that. But if you have a Canadian employer, it's fine and dandy, and it's a great, very, very great and well well utilized tool to secure a work permit for professionals that are on the designated list. But it's not that way with GATS. Is it Alicia?
Alicia Backman-Beharry 08:01 No, there's a number of restrictions with respect to the signed contract that people should be aware of. And so take careful note of the business relationship between Canadian entity and the foreign country organization. And so there must always be a signed contract between that foreign service provider and the Canadian service consumer. So there are a few wrinkles to keep in mind. They do say that the contract can be signed by that foreign service provider that is located any in any foreign member nation, or that the Canadian based company that's established by the foreign service provider to SELL IT services in Canada could also be a signatory. So you know, if you're setting up a corporation or a branch organization and wanting to bring people in on a short term basis because of that, this could be a good solution. However, it is not possible to use foreign personnel placement or personnel supply agencies. So those types of third party contracts are never allowed under GATS. And there's no sub contracting possible. So when that work permit is eventually issued, you have to have that employee working for only the employer named under the GATS weren't permitted. It's employer specific.
Mark Holthe 09:18 And I, you know, often we will secure work permits for a company who then has a number of clients that they're servicing. And so in those circumstances, the work permit would be issued, you know, on behalf of the would the Canadian employer, and then we will often request that geographic location be broad enough to allow them to work at any client site across Canada. So a client versus a subcontracted situation. How do you see that playing out in this in this type of a work permit? Does it could it be perceived by an officer to extend to that type of a situation? I think it would be hard pressed to say that that's a subcontractor situation because you're just performing duties on behalf of the company and the company, itself provide services to clients. So it's not like you're being subbed out. But I always think, you know, what is the Border Service Officer agent? You know, what are they going to? How are they going to interpret this? And, you know, if you don't really understand the fundamentals, which sometimes border officers, you know, some are less experienced on the immigration side, you know, sometimes I wonder if that trips it up, if you say, yes, they're coming in for 90 days, and they're going to be providing services in Manitoba and BC, and we'd like this to say, you know, authorized to provide services at client sites across Canada, you know, if that would somehow be an impediment to this?
Alicia Backman-Beharry 10:38 Well, I think it is always important that you're not playing fast and loose, or trying to find a loophole to set this up to say that, really, they're working for a company A when, in fact, they're actually doing work for companies B, C, D, and F. But if Company A does actually have a number of existing clients with different locations, then that's something that you'd really want to build out and your offer of employment through the employer portal, or you'd want to put that in your submission package, or both. And really specify and make sure that the employee knows who is paying them who their ultimate employer is, for, you know, reporting reasons and also for payroll, but then where is the location of work, and that's always a dance at the border to make sure that that gets coded properly in the work permit. It's super important, for sure. But I think as long as, as long as the employee is actually getting paid and reporting to and having the employment relationship with company A, that's what's going to be important so that they're not offside on the sub contracting strictures. And the other thing I'll mentioned to mark is that you can't be providing services for certain sectors under gets. So nothing related to education, health care services, recreational culture, or sports. So that's always a no go.
Mark Holthe 11:55 Yeah, that's interesting. You know, how broad do they extend it education? You know, are we talking no post secondary? No high school, you know, or primary, strictly teaching? Do they extend it beyond that to know you're coming in to to provide instruction to some type of a private entity? Yeah, there's no definition for these terms, as far as I'm aware. So obviously, you just kind of make your pitch. And then obviously, health related services is also extremely broad. So just be aware, I guess, I mean,
Alicia Backman-Beharry 12:33 yeah. So the way that you can look at it is making sure that the person is going to be a professional falling in either group one or group two, and that the services that they are contracted to provide aren't infringing on education, health, rec, culture, and sports, and when you look at the GATS one and two, so, group number one would be anybody who actually is an engineer, I grow ologists architect, forestry professionals, geomatic professionals and land surveyors. So most of the time, I don't think those people are going to be directly engaging in education or health, right?
Mark Holthe 13:08 Yeah. So this is I'm coming in as an engineer to teach at a university or something like that. I guess that's an example of the prohibition.
Alicia Backman-Beharry 13:18 And then group two actually has three occupations in it foreign legal consultants, urban planners. And then the last one is the senior computer specialists, and for all of these groups, so if you take a look at group one, and two, I mean, engineers, architects, geomatics, land surveyors, a lot of these are licensed professions, they're mandatory, regulated occupations, and one of the wrinkles in GATS is that you can't just show up and start working as an engineer in Canada, anywhere, of course, and so, the requirement under GATS is that people actually have gone and made sure that they have contacted the appropriate regulatory authority provincially. And then also they have received a license and so they actually have to have their license set up before they come in and work under their GATS work permit,
Mark Holthe 14:07 which is a lot of work for a 90 day permit.
Alicia Backman-Beharry 14:13 Absolutely. So make sure that if you are going to use gods, your candidate has pre planned and prepared so especially for engineers make sure that they have all their licensing all their original language, degree and transcript to their certified interpretations, that they're making sure to get their credentials vetted and that they're going through that registration process with a pega, for example, or any of the provincial regulators and then they they have to start that licensing provincially as well.
Mark Holthe 14:47 What about place of application? Is this something that can be done at a POE or do they push it to the visa offices?
Alicia Backman-Beharry 14:56 And again, this depends on your country of nationality. Yeah. And so of course, if the member nation under the WTO is visa required, if the candidate is visa required, then you have to be submitting this as a online application, because that person is also going to need to get that visa stamp in their passport that counterfoil In order to be able to travel to Canada. And so it has to be an application that's done ahead of time online. Only if that person is a WTO member, resident or a citizen of a member, then they could potentially do this application at the POA as long as they only need an ETA to travel to the border. Again, ahead of time OSes counsel would have to have submitted that offer of employment through the employer portal with the employer. And then they have the the a number and the O number. And the application package which is presented at the time of entry at the POA.
Mark Holthe 15:50 Right, well, one of the things when we have these restrictive type of programs, they're often used as bridging tools to bridge a certain period of time until you get things sorted out. So in many circumstances, when we're looking at gaps, it's often in situations where maybe you need to have someone come in a little bit sooner, maybe Ultimately, the goal is to get them on a Labor Market Impact Assessment, but the service they're providing and the company they're coming from, and those kinds of things, does meet the parameters of GATs, then one strategy for sure is to use this as a bridge until you can get the LMIA process rolling. And, and it's you know, it's no different than the podcast, I guess the last one I think I did was C 10. You know, there may be circumstances where you just need the person here now, when you can't wait for the LMIA. But ultimately, that's the direction you to go. So you can consider GATS to some extent as a potential bridging tool to get the person working here quicker before you actually transition to an LMIA. But remember, as always, that, you know that the parameters for this are pretty narrow. And, and with the licensing and other things, it's, you know, it's going to be a little bit of work for sure. Any other final thoughts on GATs, Alicia?
Alicia Backman-Beharry 17:13 Yeah, take a look at the fine print, make sure that you're going back to the agreement, because it isn't ideal for brand new startup situations, right. It's not something where you want to try to be where you
want to try to push the envelope. But it really is important. There's some interpretive notes on what doing business involves and the foreign based employer has to be established for a reasonable period of time actively doing business, which is a defined term. If they're looking at, you know, bringing in computer specialists, or legal consultants or urban planners, then the Canadian employer must have be engaged in substantive business also. So this is not kind of a parachute into a new startup organization. And keep in mind, too, that specifically for senior computer specialists, they only allow 10 entrants per project. And so they're, they're really trying to make sure that the requirements for labor market tests are still met, right, they're really trying to make sure that companies that should be going and doing that LMIA, do still go and do that, Oh, my
Mark Holthe 18:18 You bet. And just to reiterate, if you're in a situation where there is an an intercompany, transfer, you know, type of a relationship, then you're always going to go through the general provisions, you're not going to go through this even though it is technically on the books as well as the business visitor entry. But keep these these things in mind. And it's just one more tool in your toolbox. And there may be a situation where this fits just perfect and might be a rare situation, but there may be one. So we encourage you to keep this as one of the tools and keep it sharp and your toolbox and maybe there will be a situation where it could arise. Alright, well, our next series of podcasts are going to be a little bit shorter like this, and we're going to knock off each of the various free trade agreements. Little by little, we've got potentially some guests that are going to join us that have had a little bit more day to day experience that being located in some of these member countries outside of Canada. So we are probably going to have a guest or to join Alicia and I but we'll keep you posted and stay tuned and we want to give a special shout out to our sponsor as always journey business plans who really is there to help and support any of your clients that are struggling with that and who need a business plan especially in startup situations with intercompany transfers, even self employed from an resin applications and the list goes on wherever a business plan is needed. Think journey. Alright, thanks, Alicia. We will see you again in our next episode. Thanks back.
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Outro 21:04 Thank you for listening to the Canadian immigration podcast, your trusted source for information on Canadian immigration law policy and practice. If you would like to book a legal consultation, please visit www.holthelaw.com. You can also find lots more helpful information on our Canadian Immigration Institute YouTube channel where you can join Mark on one of his many Canadian Immigration Live Q&As. See you soon and all the best as you navigate this crazy world we call Canadian immigration.
