Air and land travel (these instructions are under review)

Foreign nationals who are seeking entry to work temporarily in Canada in an occupation related to transportation (such as captains and cockpit crew, flight attendants, train conductors, engineers, food services workers, entertainers for the duration of the trip and transport drivers) may work with or without work permits.

Foreign nationals who meet the requirements of subsection 3(1) and paragraph 186(s) of the Immigration and Refugee Protection Regulations may work without work permits as members of a crew.

In most cases, foreign nationals who are required to obtain work permits are required to obtain a Labour Market Impact Assessment (LMIA) from Employment and Social Development Canada/Service Canada (ESDC/SC). Foreign nationals who meet the requirements of section R204 or R205 may be eligible to apply for an employer-specific work permit under the International Mobility Program (IMP).

Air travel

For members of a crew on an airplane:

• The captain and cockpit crew, and flight attendants

The Canada Transportation Act may inform officers’ decisions when determining if a work permit is required for foreign crew members aboard flights in Canada. Typically, under the Act, any foreign crew members arriving on a flight to Canada from an international point of origin or departing Canada on an internationally bound flight will not require a work permit.

The Canada Transportation Act generally excludes foreign crew members from performing domestic air service in Canada. Foreign nationals aboard foreign flights flying between points within Canada typically are not permitted to perform duties as members of the crew of the air transportation. Foreign nationals wishing to work aboard Canadian flights travelling between points within Canada typically do not qualify for a work permit exemption.

Unique circumstances

Publicly available domestic air service

Under the Canada Transportation Act, a Ministerial exemption (sections 61 and 62) may be granted to allow foreign nationals to operate a publicly available domestic air service, generally for a limited period of time.

This does not, however, exempt foreign crew members engaged in delivering air services in Canada from work permit requirements because the foreign crew members are engaged directly in delivering services in the domestic labour market.

However, in limited instances, when an exemption is in response to a situation that is time sensitive or unexpected, officers may, at their discretion, wish to consider dispensing with work permit requirements.

For example, a situation in which the Minister of Transport has authorized a foreign specialty aircraft to transport parts domestically to an offshore oil rig that requires the parts on an emergency basis may trigger an officer to wave work permit requirements.

Foreign airlines – between points within Canada

Many of the bilateral air transport agreements Canada has with foreign countries contain conditions allowing foreign airlines to carry passengers and cargo between points within Canada.

Transport Canada does not consider these services to be domestic air service in Canada, because the services of the foreign carrier originate or terminate abroad and because no traffic is carried that originates at one point in Canada and is destined solely for another point in Canada.

The agreements are reciprocal in that similar rights are available for Canadian air carriers between points in the territory of the other party. These types of operations are referred to as co-terminal services and triangular services, and are not considered domestic services. Thus, officers may consider waiving work permit requirements.

Foreign air carriers – multiple points in Canada

The Canadian Transportation Agency routinely authorizes charters by foreign air carriers for transportation to multiple points in Canada with stopovers. The majority of these are for sports teams or for entertainment industry tours, such as popular bands and orchestras, or for round-the-world tour groups.

The responsibility of the foreign carrier is to ensure that the contract with the charterer does not provide for the offering, by either the air carrier or the charterer, of domestic transportation solely between points in Canada. As a result, this is not considered as domestic services, and officers may consider waiving work permit requirements.

Foreign fractional ownership/private aircraft

Foreign fractional ownership/private aircraft can sometimes also be used for charter or other publicly available air services. In such instances, a licence would be required from the Agency and officers may consider requiring work permits.

‘Wet lease’ agreements

Overview: wet lease agreements (policy and definition)

Policy: Transport Canada’s wet lease policy can be found on that department’s website.

Definition: A wet lease is a leasing agreement whereby one airline (lessor) provides an aircraft, complete crew, maintenance and insurance (ACMI) to an airline (the lessee), which pays by hours operated. The lessee, that is, the Canadian airline, provides fuel and covers airport fees, duties, taxes and various other expenses. The aircraft use(s) the flight number of the lessee. The aircraft is registered overseas and not in Canada. A wet lease is typically utilized during peak traffic seasons or annual heavy maintenance checks, or to initiate new routes.

Wet lease arrangements are essentially charter flights by the lessor, that is, the foreign airline, for a Canadian air carrier – so a foreign carrier wet leasing aircraft to a Canadian air carrier is providing an international non-scheduled service and the flight crew remain its employees. As a result, the provisions of Annex 9 Facilitation (Chicago Convention) would apply.

For more information on wet lease and flight crews, see the Canadian Transportation Agency website.

Procedures

Foreign crews working on a foreign-owned, foreign-registered conveyance, engaged primarily in international transportation are eligible to “work without a work permit” as per paragraph 186(s) of the Immigration and Refugee Protection Regulations. The Canadian Transportation Agency (CTA) is responsible for approving “wet lease” applications, and any foreign crew members on approved “wet lease” aircraft are eligible for the work permit exemption [as per paragraph R186(s)], if they work on direct flights from Canada to a point abroad or vice versa (that is, not on flights involving stops in Canada).

There have been recent increases in the number and duration of “wet lease” arrangements within the commercial airline industry. Canadian airlines also “dry lease” conveyances (leasing the aircraft without the crew) to fulfill their operational needs. Foreign crew members on “dry lease” aircraft are, for immigration purposes, treated the same as foreign crew flying a Canadian airline’s regular fleet, and would be required to have both an LMIA and work permits.

Assessing crew work permit exemption/wet leases

Employer should be listed as the foreign airline.

Applications/requests for the work permit exemption for “crew” should include:

• The wet lease agreement, containing
  • name of the lessee (Canadian airline)
  • date and signatures; validity period of agreement/lease
  • NOC occupation
  • season/year (for example, 2013/2014)
  • number of aircraft involved in the agreement and their registration numbers/IDs
  • indication that all flights are international only
• Evidence that the means of transportation are foreign-owned and not registered in Canada
• Evidence that the flights in which the crew are involved travel directly between Canada and abroad, with no stops in Canada
• Confirmation of wet-lease approval with the CTA
  • The CTA assesses the wet lease applications and will only approve them if the number of wet leases does not exceed 20% of the Canadian airline’s fleet (including dry leases)
  • Officers can verify wet leases on the CTA website
• Evidence that the foreign national continues to be employed by the foreign airline
• List of foreign pilots/first officers’ names, dates of birth and nationalities, and a detailed flight schedule indicating dates, times, destinations and aircraft ID

Training: Paragraph R186(s) does not provide authority for foreign nationals to enter Canada for training purposes.

See also: Commercial Airline Reciprocal Agreements

Land travel

There are 2 land travel modes: Highway and rail.

Highway

The crew members on a bus tour:

• The driver and tour guide while on the bus
• Transport driver

Tour guides/Expedition leaders and support staff

A work permit is not required if the following criteria are met:

• The tour begins outside of Canada
• The tour guide and participants arrive together as part of the tour
• The tour is temporary in nature and does not involve the operator setting up a permanent or semi-permanent base of operations (camp, etc.)

Given that a foreign crew involved in the land transportation of people and goods in Canada are almost exclusively American or Mexican citizens, the Canada-United States-Mexico Agreement (CUSMA) may inform officers’ approach to exempting foreign members of land transportation crew from work permits.

CUSMA notes that foreign crew members working aboard vehicles operating within Canada may deliver or pick-up goods and passengers across the United States (US) and Canadian border insofar as they do not pick up and deliver from one location to another within Canada.

Considerations

Foreign truck drivers involved in international hauling should not become involved in the loading and unloading of their cargo when the cargo is being delivered directly to a location that is used for storing goods (such as a warehouse) in Canada from a US destination or picked up in Canada for direct movement to the US. If involved in the loading or unloading of cargo, foreign crew members on highway transport are normally required to have an LMIA and work permits.

The exception is when drivers who have expertise in the handling of loads such as chemicals, furniture, livestock, etc., are responsible for the loading and unloading of their vehicles. Another exception is in cases where drivers will occasionally assist in the handling of their cargo in a non-warehouse situation (such as movers/drivers offloading furniture to a house at the end of an international move), especially when no other assistance is available. These practices and exceptions prevail on both sides of the US/Canada border. Movers who are determined by the officer not to be the licensed drivers/operators may be required to have work permits.

Foreign truck drivers who are employed by Canadian trucking companies to pick up goods in Canada for delivery to the US, and who are operating Canadian owned and registered vehicles, cannot receive consideration under paragraph R186(s), since both the company and vehicle are Canadian. Nor can independent foreign truckers working under contract for Canadian trucking companies receive consideration under paragraph R186(s), since they are being employed by a Canadian company.

Similarly, under the CUSMA provisions, tour buses operated by foreign drivers are not generally permitted to conduct tours that originate and terminate in Canada unless the predominant portion of the tour takes place in the US or Mexico in order to preserve the international nature of the tour. Refer to: Tour bus operation.

See Business visitors – CUSMA [R186(a)] – Authorization to work without a work permit – International Mobility Program for more information on transportation guidelines under CUSMA.

Rail

The crew members on a train:

• The conductor, the engineer, food services workers, entertainers for the duration of the trip

Cabotage is not typically an issue for Canadian rail service operations due to the extremely limited presence of foreign rail service providers operating within Canada. In the rare instances where requests are made for work permit exemptions for foreign crew aboard rail services operating within Canada, officers should consider if the rail service embarks and disembarks passengers or loads and unloads cargo at points within Canada, as such actions would constitute cabotage and officers may wish to require work permits for foreign national crew members.