Immigration considerations for the mining industry

In an increasingly globalized marketplace, the movement of personnel across borders to work at subsidiary offices or provide short-term advisory services is commonplace. This is especially true in the mining industry. It is important for mining professionals to be aware of the duties that foreign employees and contractors can perform in Canada as business visitors, and those activities which require the issuance of a work permit. With the appropriate knowledge, proper planning can be undertaken to ensure project timelines and goals are achieved.

A foreign national is a person who is not a Canadian citizen or permanent resident. Foreign nationals who enter Canada temporarily to provide employment-related services require a work permit unless they fit into one of the specifically enumerated criteria for entry as a business visitor. The challenge is differentiating between business and employment activities. The common misconception held by companies is that if the foreign national is not being paid in Canada, then he/she is automatically a business visitor. In fact, the most important criteria in determining whether an individual is a business visitor or requires a work permit is an analysis of the actual duties to be performed in Canada — not the source of remuneration, duration of entry or nationality of the individual.

A business visitor is a foreign national who seeks to engage in international activities in Canada without directly entering the Canadian labour market. The phrase ‘without directly entering the Canadian labour market’ can best be described as the foreign national not doing an activity that a Canadian could have theoretically been hired to undertake.

Examples of permissible business visitor activities that fit within the definition, or are specifically exempted through the Immigration Regulations include: attending conferences or trade shows, attending business meetings to obtain project updates and discuss requirements negotiating contracts and general marketing activities, providing after-sales service pursuant to an international warranty for a product manufactured entirely outside Canada, receiving or providing intra-company training at a related company leading a seminar or workshop of five business days or less.

If a foreign national undertakes a work activity, then a work permit is required. Clear examples of functions requiring a work permit include: a foreign-based employee who holds a title within a Canadian office, has direct reports in Canada, or provides direction to a Canadian office. This captures senior managers who have cross-border managerial responsibility for employees or a function. Also included are foreign management consultants engaged on a project for a Canadian client. When a Canadian office obtains the assistance of a foreign office’s employees to aid in the completion of a project or execute a feasibility study, then those employees require work permits.

Once it is determined that a work permit is required, then the appropriate work permit category must be selected. There are more than 20 work permit categories, each with its own procedure, processing time and documentation requirements. It is extremely important that the appropriate and most expedient category be selected.

The Intra-company Transfer category, which permits the entry of key foreign employees from a related company, is among the most facilitative and common application categories. In addition, pursuant to the NAFTA as well as the parallel agreements with Chile and Peru, accelerated work permits are issued to American, Mexican, Chilean and Peruvian citizens in strategic professions, which include engineers, technicians/technologists, geologists and management consultants.

If a foreign national does not qualify under one of the many “fast-track” work permit categories, then the Canadian company is required to obtain a Labour Market Opinion approval from Service Canada. This process requires demonstrating local recruitment efforts confirming the skill set is not readily available in the Canadian labour market, a process that may require extensive documentation and several weeks processing time.

It is therefore essential that mining professionals not only evaluate whether a foreign national is a business visitor or a worker, but also select the most expeditious and least onerous application category when a work permit is required. The penalties for non-compliance with the immigration rules can result in fines to the company and exclusion of the foreign national from Canada for up to two years. To limit the risks associated with international travel, the development of a comprehensive Immigration policy is highly recommended. CMJ