Contractual service suppliers and independent professionals  - CKFTA [R204(a) – F32]  - 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 contractual service suppliers and independent professionals category in Appendix 12-A-2 of the Canada-Korea Free Trade Agreement (CKFTA) facilitates entry to Canada for Korean citizens and permanent residents who intend to engage in international business activities in Canada, and as such any work permit are applications assessed as per paragraph 204(a) of the Immigration and Refugee Protection Regulations (IRPR). This regulatory section falls under the International Mobility Program.

Contractual service suppliers and independent professionals can also be authorized to enter Canada as business visitors (General Service provision of Appendix 12-A-1 of the CKFTA under R186(a)) when they are not seeking to enter the labour market (meet criteria applicable to business visitors) but will be performing activities such as soliciting business, consulting, providing advice and meeting clients.

The CKFTA differentiates between two types of professionals – the contract service supplier and the independent professional. Both must be requesting entry to provide a pre-arranged professional service and possess the necessary education, or satisfy accreditation or licensing requirements, as stipulated for the profession.

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 a Korean firm to provide services in the field of engineering. An experienced software engineer employed by the Korean firm in Seoul 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 Korean management consultant 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
• Spouses or common-law partners (open work permit / LMIA exemption code F36)
• List of eligible professions under the CKFTA Contractual service supplier and independent professionals category

Eligibility

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

• be a citizen or permanent resident of Korea;
• be in an occupation identified in Appendix 12-A-2 of the CKFTA (see List of eligible professions under the CKFTA Contractual service supplier and independent professionals category);
• be qualified to work in that profession (degree or certification in a related educational program);
• have pre-arranged employment with a Canadian employer;
• be providing professional level services in the field of qualification as indicated in the Appendix; and
• be compliant with all other requirements for temporary entry.

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 Korean citizenship or permanent residency;
• proof that the applicant meets the minimum education requirements or alternative credentials listed in Appendix 12-A-2 of the CKFTA (copies of degrees, diplomas, professional licences, accreditation or registration, etc.).
• The onus is on the foreign national to provide evidence that they meet the eligibility criteria. Evidence may include, but is not limited to, the following:
  • reference letters
  • letters of support from the company
  • job descriptions that outline 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
• 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

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 CKFTA, 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 Korean 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 service 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 service supplier or independent professional 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 services 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 an eligible occupation for which they are qualified. In making this determination, both the qualifications of the individual and the position in Canada must be considered.

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 Korea or Canada, whereas post-secondary diplomas or certificates should have been earned in one of the two 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 supplier 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.

Eligible professions

Appendix 12-A-2 of the CKFTA is the mechanism by which selected professionals can enter Canada to provide their services. See further below for the complete list of eligible professions under the CKFTA Contractual service suppliers and independent professionals category

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 and independent professionals category of the CKFTA.

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 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 an 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

Initial work permits can be granted for a duration of up to 3 years.

Extensions can also be issued in increments of up to 3 years with no limit on the number of extensions providing the individual continues to comply with the requirements for professionals.

Officers must be satisfied that the employment is still “temporary” and that the foreign national is not using CKFTA entry as a means of circumventing normal immigration procedures.

Spouses or common-law partners (open work permit / LMIA exemption code F36)

Annex 12-A, Section E of the CKFTA includes provisions to facilitate work permit issuance for the spouses or common-law partners of Traders (F30), Investors (F31), Professionals (F32) and Intra Company Transferees (F33, F34 or F35).

Each party shall grant temporary entry and provide an open work permit to a spouse or common-law partner of a business person qualifying for temporary entry under the agreement, with the exception of the Business Visitor Category, if the spouse or common-law partner otherwise complies with existing immigration measures applicable to temporary entry. Such an individual should be processed using LMIA exemption code F36.

List of eligible professions under the CKFTA Contractual service supplier and independent professionals category

Independent professionals

Contract service suppliers