Contractual service suppliers and independent professionals - CETA [R204(a) -T47, T43] – Agreements or arrangements  – International Mobility Program

In these instructions “officers” refers to employees of both Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency.

The instructions on this page should be reviewed in conjunction with:

• Employer-specific work permits – General processing – International Mobility Program
• Assessing the genuineness of the offer of employment on a work permit application
• Conditions and validity period on work permits
• Public list of Employers who have been non-compliant

The Canada-European Union Comprehensive Economic and Trade Agreement (CETA) is an international trade agreement between Canada and the European Union (EU) member states, and as such any work permit applications are assessed under paragraph 204(a) of the Immigration and Refugee Protection Regulations (IRPR). This regulatory section falls under the International Mobility Program (IMP).

The CETA covers two types of professionals: contractual service suppliers and independent professionals.

CETA includes a list of service sectors (set out in Annex 10-E) applicable to contractual service suppliers and independent professionals. Note that the list of covered sectors can be different for contractual service suppliers and independent professionals.

A table has been created to demonstrate equivalency between Annex 10-E and Canada’s National Occupational Classification codes, and to highlight those occupations where Canada has taken commitments to facilitate temporary entry for contractual service suppliers and independent professionals.

The service contract must comply with Canada’s laws and other legal requirements.

The following definitions apply:

• contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied.

  Example: A Canadian high tech company contracts the services of firm from an EU member state to provide services in the field of engineering. An experienced software engineer employed by firm in the EU seeks entry to Canada to provide the engineering services under the terms of the pre-arranged services contract.

• independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level.

  Example: A self-employed management consultant from an EU member state seeks entry to Canada to provide services to a technology company under the terms of a pre-arranged contract.

On this page

• Eligibility
• Documentary evidence
• Place of application
• Application assessment
• Final decision
• Length of stay

Eligibility

To be eligible for a work permit in the contractual service supplier or independent professional category, a foreign national must:

• be a citizen of a European Union member state;
• engaged in the temporary supply of a service for a period not exceeding 12 months;
  • If longer than 12 months, the commitments in CETA will only apply for the initial 12 months of the contract
• contracted to provide a service in accordance with the Annex 10-E concordance table.

Both must possess:

• a university degree or a qualification demonstrating knowledge of an equivalent level and
• professional qualifications if required to practice an activity pursuant to the laws or requirements in the province or territory where the service is supplied

Specific criteria for contractual service suppliers

Contractual service supplier means an employee of an enterprise in the EU who has a contract to supply a service to a Canadian consumer. The EU enterprise cannot have an establishment in Canada.

In addition to the general criteria listed above, as a contractual service supplier, the applicant must also:

• be engaged in the supply of a service on a temporary basis as an employee of an enterprise which has obtained a service contract
• have been an employee of the EU-headquartered enterprise for at least 1 year prior to application
• possess 3 years of professional experience in the sector of activity that is the subject of the contract at the date of submission of an application for entry into Canada
• not receive remuneration for the provision of services other than the remuneration paid by the enterprise employing the contractual service suppliers during their stay in Canada

Specific criteria for independent professionals

Independent professional means a self-employed professional who has a contract to supply a service to a Canadian consumer.

In addition to the general criteria listed above, as an independent professional, the applicant must also:

• be engaged in the supply of a service on a temporary basis as a self-employed person
• possess at least 6 years of professional experience in the sector of activity which is the subject of the contract as of the date of submission of an application for entry into Canada

Documentary evidence

A foreign national must provide sufficient documentary evidence to satisfy an officer that they are eligible for entry.

The following documents are required:

• proof of citizenship of a European Union member state;
• a copy of a signed contract between the service provider and the Canadian service consumer
• documentation which provides the following information:
  • the profession for which entry is sought
  • their province or territory of destination
  • details of the position (job description, duration of employment, arrangements as to payment)
  • the educational qualification or alternative credentials required to discharge job duties in Canada
• evidence that the applicant has the necessary professional qualifications required to practice an activity pursuant to the laws or requirements in the province or territory where the service is supplied
• an offer of employment submitted through the Employer Portal or through alternate means if authorized
  • The offer of employment provides confirmation of the pre-arranged employment;
  • the proposed employer in Canada;
  • the profession for which entry is sought;
  • details of the position (title, duties, duration of employment, arrangements as to payment); and
  • the educational qualifications or alternative credentials required for the position

The onus is on the applicant to provide evidence that they meet the eligibility requirements of the exemption and will be able to perform the work being sought as stated in the International Mobility Program (IMP) offer of employment. Evidence may include, but is not limited to, the following:

• reference letters
• letter of support from the company
• job descriptions that outlines the level of training acquired
• years of experience in the field
• degrees or certifications obtained in the field
• list of publications and awards (where applicable)
• a detailed description of the work to be performed in Canada

Place of application

Foreign nationals who are exempt from the requirement for a temporary resident visa may apply for a work permit at the port of entry, as well as foreign nationals who otherwise meet the requirements of R198. For more information, see: Temporary Foreign Worker Program (TFWP) and International Mobility Program (IMP): Persons who may apply at a port of entry.

Foreign nationals may apply for a work permit from within Canada if they meet the conditions set out in section R199 of the Immigration and Refugee Protection Regulations.

Application assessment

Review of the offer of employment

When assessing if the work permit application meets the requirements of the CETA, officers should review the offer of employment that appears under the Employment Details tab in the Global Case Management System (GCMS) for information provided by the employer or the matching fields on the IMM 5802 form (if the employer was authorized to use it).

Refer to Employer-specific work permits – General processing – International Mobility Program for further guidance.

Pre-arranged employment

In this context, the Canadian employer may be an enterprise or an individual. The following are some examples of pre-arranged employment:

• an employee-employer relationship with a Canadian enterprise; or
• a contract between the professional and a Canadian enterprise; or
• a contract between the professional’s EU employer and a Canadian enterprise.

Self-employment

If the Canadian enterprise is substantially controlled by the applicant, it is considered to be self-employment. For example, if the Canadian enterprise offering the employment is a sole proprietorship operated by the applicant, then entry cannot be granted under the contractual services suppliers and independent professionals category. Additionally, if the Canadian enterprise is legally distinct from the applicant, for example, a legal corporate entity but the entity is substantially controlled by the applicant, entry as a contractual services suppliers or independent professionals category must also be refused.

In order to determine if an enterprise is substantially controlled, the following factors must be taken into account:

• whether the applicant has established the business;
• whether the applicant has primary, sole, or de facto control of the business;
• whether the applicant is the primary, sole, or de facto owner of the business;
• whether the applicant is the primary, sole, or de facto recipient of income of the business.

When a contractual service supplier or independent professional applies for a renewal of a work permit, the following activities may indicate that the applicant has been self-employed in Canada:

• incorporation of a company in Canada expressly for the purpose of the business person being self-employed (incorporating does not automatically signify self-employment; the motives for incorporation need to be examined before making a determination);
• initiation of communications (e.g., “job hunting” by direct mail or by advertising);
• responding to advertisements for the purpose of obtaining employment or contracts; or
• establishing an office which serves as a way to advertise (i.e., a “sign or a shingle” outside the door).

The following activities do not constitute self-employment:

• responding to unsolicited inquiries about service which the contractual service supplier or independent professional may be able to perform; or
• establishing an office from which to deliver pre-arranged service to clients.

Occupational qualifications

A contractual service supplier or independent professional must be entering Canada to provide professional level services in a eligible occupation for which they are qualified. In making this determination, both the qualification of the individual and the position in Canada must be considered.

Officers must be satisfied that the applicant meets the qualifications indicated in the Minimum Education Requirements and Alternative Credentials of Annex 10-E of the CETA, which represents only the minimum requirements to permit entry and do not necessarily indicate the level of qualification required to actually work in that profession in Canada.

For regulated professions, the officer must be satisfied that the professional has or can obtain the necessary licensing so that the applicant may perform the work sought.

In instances where a baccalaureate degree is required, the degree must be in the specific field or in a closely related field. Baccalaureate degrees (or licenciatura) need not have been obtained in colleges or universities in the EU or Canada, whereas post secondary diplomas or certificates should have been earned in one of the countries.

It is possible for a professional to be working in Canada on more than one contract at a time. A work permit must be issued for each individual contract.

Training

Contractual service suppliers or independent professionals with a valid work permit can provide training related to their profession, including conducting seminars.

The training session must be pre-arranged with a Canadian employer and the subject matter must be at the professional level. Entry does not allow seminar leaders to engage in training that is not pre-arranged with a Canadian employer.

The training must form part of the professional training or development of the participants and must be related to their job duties.

Annex 10-E of the CETA is the mechanism by which selected professionals can enter Canada to provide their services.

The Appendix is a complete list of occupations that cannot be interpreted. If an occupation does not appear on the list, it is not a profession as defined under the Contractual service suppliers or independent professionals category of the CETA.

Final decision

Approval

The work permit will be issued under the authority of paragraph R204(a).

In GCMS, under the Application screen, officers should enter the information below in the specified fields.

Refusal

If an officer is not satisfied that all the requirements of R200, including the assessment under R204(a), are met, they must record their reasons and outline the rationale underlying the decision as well as the facts and elements considered. They must also provide an explanation for the decision in a case note.

A decision is reasonable and therefore defendable when another person is able to trace the decision maker’s reasoning, without encountering fatal flaws in the overarching logic, and is satisfied that there is a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the decision maker’s conclusion.

The officer needs to engage with the documentary evidence that was provided by the applicant. Simply stating ‘I have reviewed the submissions and I am not satisfied that R204 is met’ is not sufficient for the another reasonable person to understand the logic of the decision without reviewing all of the evidence again.

Refusal reasons should clearly indicate which criteria or what requirement of R200 was not met and explain how the conclusion was reached.

For assistance, officers can follow the steps in Decision making: Standard of review and process for making a reasonable decision.

Refusal grounds in the GCMS

The GCMS has standard text for refusal grounds. Officers should ensure that the refusal grounds selected for the refusal letter match the reasons that they have stated in their case note.

If an officer has reasonable grounds to believe that the applicant is not able to perform the work sought, they should select the paragraph “R200(3)(a) You were not able to demonstrate that you will be able to adequately perform the work you seek.” Officers should ensure that they clearly indicate in their refusal notes why they are not satisfied.

Given that there is no specific refusal ground for FTA categories in GCMS for when a officer is not satisfied that the criteria has been met, they should select the refusal ground “Other” and add a short explanation in the Comments field that they are not satisfied that section R200 or paragraph R204(a) are met.

Length of stay

A cumulative period of no more than 12 months in any 24-month period or for the duration of the contract, whichever is less. Permits for contractual service suppliers and independent professionals may be extended up to 12 months from the start of the initial work permit and must fall within the overall 24-month window permitted for these categories.

In order to apply for an extension, applicants must:

• apply before their current status expires;
• comply with all the conditions that were imposed on entry; and
• be in possession of a passport or travel document that is valid for the entire period authorized for the applicant’s stay.

In order to extend a CETA work permit, the employer must submit a new offer of employment.

Officers should review the suggested documentation below when reviewing the work duration requested by the employer.

• Extending CETA work permits