Moving Skilled Workers to Canada – An Appealing North American Alternative in the Trump Era
By Asher Frankel, Devry Smith Frank LLP
Since becoming President of the US, Donald Trump has initiated a reorientation of American immigration policy. Purporting to protect American security and jobs, and addressing a perceived abuse of the immigration system, President Trump has issued several executive orders impacting immigration law.
A recent executive order, issued 18 April and titled ‘Buy American, Hire American’, instructs several government agencies to recommend new immigration rules and guidance to ‘protect the interests of United States workers’, and ‘rigorously enforce’ the laws governing entry into the US of workers from abroad. These agencies have announced a coordinated effort to reinterpret regulations and to focus on enforcement activities.
Given the current rhetoric in the US concerning increased protectionism and restrictions on entry to the US, and the uncertainty that it creates for both business and foreign workers, many businesses have signalled a shift to Canada. Numerous US-based companies are establishing subsidiaries or branch offices in Canada to move their foreign workers who have uncertain futures in the US, and to bring in new foreign workers from abroad. In addition, international businesses seeking to increase their North American presence are contemplating doing so via locations in Canada. From giant tech corporations such as Microsoft, Google and Amazon, to smaller nontech companies, many already have operations in Canada where foreign
workers are often placed.
Relative to the US, Canada’s more predictable and accessible work permit and permanent residence programs create an appealing alternative work destination. Canada has Free Trade Agreements containing immigration provisions with several countries (Chile, Peru, Colombia, South Korea, Mexico and the US, with others currently under negotiation), allowing citizens of those countries facilitated entry to work in Canada. Canada has more work permit categories than does the US, and citizens of many countries are visa exempt, allowing them to apply for work permits at the port of entry (airport or land border), thus receiving their work permits on-the-spot at the time of entering Canada with no time delay. None of Canada’s work permit categories are subject to a cap on the number of applicants, unlike the US, where certain applicants are chosen for processing by lottery, resulting in uncertainty. While in the US, only accompanying spouses of work permit holders in certain categories may obtain a spousal work permit, in Canada, under most circumstances, accompanying spouses of all highly skilled foreign workers can obtain an open work permit, regardless of the work permit category of the principal spouse.
One example of a highly useful work permit category for companies with subsidiaries or branch offices in Canada is the ‘intracompany transferee category’, which allows a related company outside of Canada to transfer executives, managers or employees possessing specialised knowledge to the Canadian operation. Each of these positions is a term of art with a detailed definition, and there are other requirements to qualify, but these are all beyond the scope of this article.
Recent additions to Canada’s work permit programme have created new enhanced opportunities for foreign workers. In November 2016, the Canadian Government announced that it will be introducing a new ‘Global Skills Strategy’ programme. Launched on 12 June 2017, it is designed to facilitate the issuance of work permits to high skilled workers, while helping Canadian companies fill labour shortages. The programme aims to simplify the application process for foreign workers, reducing the time it takes to process an application and providing predictability to both employers and applicants. The transparency and quick application process makes Canada a more desirable country for skilled international workers, while also reducing the costs Canadian businesses spend on hiring foreign workers.
The new programme specifically focuses on high-growth Canadian companies that need top-tier talent and have a difficult time hiring new employees to meet their rapid growth. A new Global Talent List of high-demand occupations most needed in the Canadian market has been created, and a stated goal is to process work permits in under two weeks, allowing for a much simpler and more expedited visa process. The programme has two streams: one focused on highgrowth companies in need of many highly specialised employees not on the Global Talent List, and the second aimed at companies which need to hire for specific jobs listed on the Global Talent List.
In addition to Canada’s work permit programme, its permanent residence programme is also generally predictable and relatively fast with no country quotas as in the US. Canada recently introduced a new Express Entry system, which is based on points, enabling a more objective assessment of a candidate’s eligibility. Most temporary workers can transition to permanent resident status and eventually Canadian citizenship. As a Canadian citizen, the individual will then have facilitated access to the various countries with which Canada has a Free Trade Agreement, including the US.
The following are a few additional considerations that make Canada an appealing North American destination for foreign companies to establish a presence as a gateway to the US. Since the decline in global oil prices, the Canadian dollar (CAD) has declined on a relative basis compared to the US dollar (USD), and has for quite some time been trading at a 32% to 35% discount to the USD, resulting in investment in Canada costing over 30% less than similar investment in the US. All three levels of government in Canada offer support for startups and emerging tech companies through tax credits and various tax incentive programs. Canada is a country of immigrants, which views itself as a ‘multicultural’ society, welcoming individuals of all nationalities and backgrounds.
In conclusion, as the US appears to be tightening its immigration policy, Canada is expanding and streamlining its immigration policy, making it an appealing North American alternative for individuals and companies seeking to access the North American marketplace.
Asher FrankelDevry Smith Frank LLP, Toronto, Canada
T: +1 416 449 1400, F: +1 416 449 7071
Published: July 2017 l Photo: eunikas - Fotolia.com