Canada Immigration GATS

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GATS

The General Agreement on Trade in Services (GATS) took effect on January 1, 1995. It sets out the benefits and obligations of more than 120 member countries (see Appendix 1) regarding trade in services.

Under the GATS, each nation has made individual commitments regarding access to its domestic market in agreed upon service sectors. One of Canada's most important commitments is to allow qualifying individuals to establish a business in Canada. Another is easier, faster procedures for some business persons who wish to work in Canada on a temporary basis.

Residents of the United States and Mexico will note several similarities with and some differences from the North American Free Trade Agreement (NAFTA). For example, both agreements facilitate entry for some types of applicants without requiring validation of their employment authorization. However, NAFTA offers more coverage (for instance, it has a Trader and Investor category while GATS does not) and might therefore be more advantageous to some clients. To make comparisons between the two agreements easier, some differences are noted throughout this page in the relevant sections.

The GATS divides business persons into three categories: business visitors, intra company transferees and professionals. In each case, specific requirements apply. However, five general requirements apply to all three categories. These are, in essence, the criteria you should start with to determine if you qualify for temporary entry into Canada under the GATS.

Business Visitors

Gats Business Visitors are persons who: "stay in Canada without acquiring remuneration from within Canada and without making direct sales to the general public or supplying services, for the purpose of participating in business meetings, business contracts including negotiations for the sale of services and/or other similar activities including those to prepare for establishing a commercial presence in Canada". Therefore, activities that can be undertaken by a GATS Business Visitor are limited to business meetings, negotiations or other types of business contact that are not remunerated from within Canada. In other words, the business person must not be entering the Canadian labour market.

Applicable Requirements

The following are the requirements for Business Visitors under GATS:

citizenship of a Member nation listed in Appendix 1 or the right of permanent residence in a Australia, Canada or New Zealand (which granted the same rights to their permanent residents as to their citizens);
a service supplier in a Member nation listed in Appendix 1;
no intent to enter the Canadian labour market (primary source of remuneration remains outside of Canada;
seeking entry to
- attend business meetings, make contacts or enter into negotiations to sell a service listed in Appendix 2; or
- engage in activities related to the setting up of a commercial presence to supply a service in Canada which is listed in Appendix 2.
compliance with existing immigration requirements for temporary entry, including Canadian visitor visa requirements.

Intra Company Transferees

Intra Company transferees are defined as persons of another Member nation who have been employed for period of not less than one year and who seek temporary entry in order to render services to:

the same company which is engaged in substantive business operations in Canada, or
a company constituted in Canada and engaged in substantive business operations in Canada which is owned by, controlled by or affiliated with the aforementioned company.

Executives, described as persons who:

primarily direct the management of the company; or
establish goals and policies for the company or a major component or function of the company;
exercise wide latitude in decision making; and
receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the company.

Managers, described as persons who:

direct the company or department or subdivision of the company;
supervise and control the work of other supervisory, professional or managerial employees;
have the authority to hire and fire or recommend hiring, firing, or other personnel actions, and
exercise discretionary authority over day to day operations at a senior level.

Specialists, described as persons who:

possesses knowledge at an advanced level of expertise; and who possesses proprietary knowledge of the company's product, service, research equipment, techniques or management. Specialists are also referred to as persons with specialized knowledge.

Applicable Requirements

Citizenship of a Member nation listed in Appendix 1 or the right of permanent residence in Australia, Canada or New Zealand (which granted the same rights to their permanent residents as to their citizens).
The Canadian enterprise is engaged in substantive business operations in a service sector listed in Appendix 2.
The employer is located in a Member nation listed in Appendix 1.
The employer and the Canadian company have a parent, branch, subsidiary or affiliate relationship.
The employment in Canada is in an executive or managerial capacity or one involving specialized knowledge, meeting the criteria described in the definition of these functions above.
The applicant has been employed, in a similar position, by a current employer for at least one year immediately prior to date of application.
Proof that applicant has the specialized knowledge he/she claiming to have.
Compliance with existing immigration requirements for temporary entry, including visitor visa requirements.

Interpretation

Substantive company. Both the foreign based company and the Canadian company must be substantive. Company is defined as any legal entity duly constituted or otherwise organized under applicable law, whether for profit or otherwise, and whether privately owned or governmentally owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association. Substantive means that they are large enough to support executive or managerial functions.

The Canadian operation may be a newly established operation. Before issuing an employment authorization to an Intra Company Transferee in this circumstance, you must be confirmed that the enterprise in Canada has already been established, that it is expected to be substantive enough to support a managerial or executive position, and it is expected to be "doing business"

Doing business means regularly, systematically and continuously providing services. The mere presence of an agent or office in either the Member nation or Canada does not constitute "doing business". For instance, a company with no employees which exists in name only an is established for the express purpose of facilitating the entry of Intra Company Transferees would not qualify.

Affiliate means one of two subsidiaries, both of which are owned and controlled by the same parent or individual; or one of two legal entities, owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each company.

Branch is an operating division or office of the same organization housed in a different location.

Parent means firm, corporation or other legal entity which has subsidiaries.

Subsidiary refers to a firm, a corporation, or other legal entity of which a parent:

owns directly or indirectly, half/more than half of the entity and controls the entity; or
owns directly or indirectly 50% of a 50 50 joint venture and has equal control and veto power over entity; or
owns directly or indirectly, less than half of the entity, but in fact controls the entity.

Specialized knowledge. A person who possesses the advanced level of knowledge or expertise required to qualify in this category would usually be in a position critical to the well being of the enterprise.

Documentation

Proof of citizenship in a Member nation listed in Appendix 1 or proof permanent residence in Australia, Canada or New Zealand.
A letter from the applicant's employer confirming the following:
- that the person has been employed continuously by the enterprise for at least one year immediately presiding the date of application;
- that the applicant's car current position is an executive or managerial capacity, or one involving specialized knowledge: an outline of the position, title, place in the organization, job description should be provided;
- a description of the type of services delivered by the Canadian employer;
- providing an outline of the applicant's proposed employment in Canada, i.e. position, title, place in the organization, job description;
- providing an indication of intended duration of stay;
- providing description of the relationship between the enterprise in Canada and the applicant's employer.
- where the applicant is a specialist, providing an explanation of why the applicant is crucial to the well being of the Canadian operation.

Note: Applicant must be advised that admittance under the GATS does not discharge the applicant or the Canadian employer from the responsibility of ensuring that any Canadian licensing, registration or certification requirements are met before employment can commence.