Traders - CKFTA [R204(a) – F30] - 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 trader category in Annex 12-A, Section B 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. 

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)

Eligibility

To be eligible as a trader under CKFTA, the following must apply:

• be a citizen or permanent resident of Korea;
• the employing enterprise has Korean nationality;
• activities involve substantial trade in goods or services;
• trade is principally with Korea;
• position is supervisory or executive capacity, or involves essential skills; 
• compliance with existing immigration requirements for temporary entry.

The foreign national may be trading on their own behalf or as an agent of a person or an organization engaged in trade principally between Canada and Korea.

Documentary evidence

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

The following documents and evidence are required:

• proof that the applicant is a citizen or permanent resident of Korea;
• documentation that shows the nationality of the enterprise established in Canada;
  • Korean nationality means that the individual or corporate persons who own at least 50 percent interest (directly or by stock) in the entity established in Canada must hold Korean citizenship or permanent residency.
  • joint ventures and partnerships are limited to two parties.
• proof that the business person meets the trade requirements:
  • the person’s predominant activity in Canada must be international trade (See substantial trade);
  • over 50 percent of the total volume of international trade conducted by the entity must be between Canada and Korea;
  • trade between Canada and Korea must already be in existence as evidenced by completed sales or binding contracts that call for the immediate exchange of goods or services.
• proof that the applicant’s job duties in Canada will be employed in a capacity that is supervisory, or executive or involves essential skills;
• 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; and
  • details of the position (title, duties, duration of employment, arrangements as to payment)

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. However, due to the complexity of the application and for reasons of client service, program consistency and reciprocity, the initial application for a work permit as a trader should be submitted outside of Canada.

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 requirements of section R199.

Extension requests: Upon receiving a request for extension, officers should compare the information provided in the initial or previous work permit application with that presented in support of the extension request.

A foreign national’s expression of a definite intention to return to their country of origin when trader status terminates will normally be accepted as sufficient evidence of temporary intent, unless there are indications to the contrary.

Authorized work as a trader would end upon the applicant taking another job, engaging in an activity which is not consistent with this status, closing down the business, etc.

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 authorization has been provided to use it).

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

Nationality of the enterprise

The place of incorporation of an enterprise is not an indicator of nationality; nationality is indicated by ownership.

Korean nationality means that the individual or corporate persons who own at least 50 percent interest in the entity (directly or by stock) must hold either Korean citizenship or permanent residency.

If the prospective employer is a corporation or other business organization, the majority ownership must be held by a citizens or permanent residents of Korea who either:

• reside in Korea; or
• are maintaining valid temporary resident status in Canada with authorization to work as a trader.

To establish nationality, an officer may consider the following:

• A letter attesting to ownership from a corporate secretary or a company lawyer may be used in determining nationality;
• An entity’s shares are sold exclusively on a stock exchange of the country of incorporation, nationality can be presumed to the same; and/or
• A multinational entity whose shares are exchanged in more than one country will require the applicant to submit evidence that the entity meets the nationality requirement.

The following situations do not meet the test for Korean nationality:

• An owner who is a citizen or permanent resident of Korea and a permanent resident of Canada, does not qualify as an enterprise of Korean nationality.
• Majority ownership of shares of a corporation or other business organization by a citizen or permanent resident of Korea, who is also a permanent resident of Canada, does not qualify the enterprise as a Korean nationality.

Supervisory or executive capacity

The foreign national’s job duties in Canada will be employed in a capacity that is supervisory, or executive or involves essential skills.

The supervisory or executive element of the position must be a primary function of the duties while working in Canada. The supervisor is primarily responsible for directing, controlling and guiding subordinate employees and does not routinely engage in hands-on activities (a first line supervisor would not generally meet these requirements). An executive is in a position in the organization with significant policy authority.

Indicators of supervisory or executive capacity are:

• position title;
• place in the organizational structure;
• job duties;
• degree of ultimate control and responsibility over operations;
• number and skill levels of immediately subordinate employees over whom supervision is exercised;
• level of pay commensurate with a senior position; and
• qualifying executive or supervisory experience.

The size of the entity will dictate which indicators are more significant.

Essential skills

Essential skills or services are special qualifications that are vital to the effectiveness of the firm’s Canadian operations. In general, essential skills are possessed by specialists, not ordinary skilled workers.

The essential employee is not required to have been previously employed by the Korean enterprise unless the skills required can only be obtained through working for that enterprise.

In assessing essential skills, officers must be satisfied, based upon a consideration of the following factors, that trader status is warranted:

• the degree of proven expertise of the applicant in the area of specialization;
• the uniqueness of the special skills;
• the function of the job;
• the length of experience and training with the Korean enterprise;
• the period of training required to perform the duties of the job; and
• a salary commensurate with the special expertise.
  • The salary of an applicant with essential skills should be significantly higher than that of a skilled labourer in the relevant occupation.

Highly trained technicians

A highly trained technician may sometimes qualify as having essential skills. A highly trained or specially qualified technician employed by a firm to train or to supervise personnel employed in manufacturing, maintenance and repair functions may be granted trader status even though some manual duties may be performed, provided that the firm cannot obtain the services of a qualified Canadian citizen or permanent resident technician.

Substantial trade

Substantial trade is determined by the volume of trade conducted as well as the monetary value of the transactions. Numerous transactions, although each may be small in value, might establish the requisite continuing course of international trade. Officers must be satisfied that the business person’s predominant activity in Canada is international trading.

Trade means the exchange, purchase, or sale of goods and/or services. Goods are tangible commodities or merchandise having intrinsic value, excluding monies, securities, and negotiable instruments. Services are economic activities whose outputs are other than tangible goods. Such activities include, but are not limited to international banking, insurance, transportation, communications and data processing, advertising, accounting, design and engineering, management consulting and tourism.

Trade between Korea and Canada must already be in existence as evidenced by completed sales or binding contracts that call for the immediate exchange of goods or services. A foreign national cannot qualify as a trader for the purpose of searching for a trading relationship.

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 have 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

The initial length of stay can have a maximum duration of 1 year.

Extensions should be granted for a duration of 2 years provided that the requirements outlined above are met. Upon receiving a request for extension, officers should compare the information provided in the initial or previous work permit application with that presented in support of the extension request.

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.