International Mobility Program: Authorization to work without a work permit – Crew
This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.
Paragraph R186(s) applies to crew members working on any means of transportation that is foreign-owned and not registered in Canada, which is engaged primarily in international transportation. Their duties must be related to the operation or maintenance of the means of transportation or the provision of services to passengers.
Decisions made regarding the application of R186(s) may be informed by existing federal regulations dealing with the domestic movement of goods and services through maritime, air and land transportation. Officers may consider the guidelines below when making their determinations; however, the unique circumstances of each case as well as other requirements under the Immigration and Refugee Protection Act (IRPA) and its regulations should also be considered by officers when making their determinations.
The Coasting Trade Act may be used by an officer when determining if foreign members of a crew aboard a maritime vessel will require work permits. The Coasting Trade Act defines coasting trade “as the carriage of goods or passengers by ship… from one place in Canada… to any other place in Canada… either directly or by way of a place outside Canada”. There are exceptions from this general definition, most notably related to the cruise ship industry (see below). When a vessel meets the criteria which defines coasting trade as outlined in the Coasting Trade Act, the ship requires a coasting trade license. Therefore, the requirement for a coasting trade license will typically be a good indication that work permits will likely be required for foreign crew members as the license is indicative of the fact that the vessel is involved in cabotage (meaning the domestic transportation of goods and services) activities within the domestic labour market.
When a work permit may be required
In the event that a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port, a coasting trade license is required
For example, a cruise ship embarking all passengers in Montreal, disembarking permanently some passengers in Charlottetown and continuing on to Boston to end the cruise by disembarking the remaining passengers, is engaged in coasting trade and will require a coasting trade license. Immigration officers may consider requiring a work permit for foreign national crew members working under such circumstances.
In the event that a cruise ship embarks passengers at one Canadian port and then ends the cruise and disembarks passengers at another Canadian port, regardless of whether the itinerary included a stop at an international port of call, the cruise ship is considered to be engaged in coasting trade.
For example, if passengers embark in Halifax, make a stop in Boston, U.S.A., and end their cruise in Montreal, the cruise ship is considered to be engaged in coasting trade and will require a coasting trade license. Immigration officers may consider requiring a work permit for foreign national crew members under such circumstances.
When crew may be eligible for the work permit exemption
- For much of Canada, including the ocean coasts, the Coasting Trade Act does not consider the movement of passengers to be “coasting trade” if the itinerary of a cruise ship includes at least one foreign port of call and ends at the original port of embarkation within Canada. For example, if a cruise ship embarks passengers in Halifax, makes a stop in Boston, U.S.A., during the course of its itinerary, and returns to Halifax for disembarkation, a coasting trade license would not be applicable and immigration officers may consider applying the work permit exemption. This approach would be similar to that of the U.S. which does not require a work authorization for foreign crew members aboard a foreign vessel provided that the itinerary includes at least one foreign port of call.
- The Coasting Trade Act also does not consider the movement of passengers to be “coasting trade” if a cruise ship which starts at a Canadian port of call ends its itinerary at a foreign port of call. For example, cruises which embark passengers in Halifax and end their cruise and disembark passengers in Boston, U.S.A., would not be considered to be engaging in coasting trade and immigration officers may consider applying the work permit exemption.
TIP (from ENF 17 (PDF, 176.38KB), section 5.12):
On a cargo ship, crew members include:
- licensed officers: master, first officer, chief officer or chief mate, first engineer or chief engineer, and subordinate officers and engineers; and
- non-licensed crew: ordinary seamen, able-bodied seamen, bosun (deck crew foreman), engine- room crew (oilers and fitters), and kitchen and mess-room staff (cooks, stewards and messmen).
On a cruise ship, crew members also commonly include:
- the hotel manager, cruise director, purser, medical staff, managers and staff of the ship's bars, restaurants, boutiques and casino, as well as house-cleaning staff and entertainers.
On a fishing vessel, crew members include:
- all persons involved in the processing of the catch.
On a research vessel:
- all persons employed aboard such as scientists, technicians and divers are considered to be members of the crew.
Comprehensive Economic and Trade Agreement (CETA) addition
Under the Canada–European Union CETA, vessels registered in a European Union member state and engaged in the following operations are exempt from the requirement to obtain a Coasting Trade Licence (CTL):
- feeder services between the ports of Halifax and Montréal
- repositioning empty containers
- dredging services
Despite being exempt from the need to obtain a CTL, the vessel is still engaged in cabotage. The CETA grants an exemption only from the CTL requirement, not from the regular work permit requirements that apply to foreign crew members working on board vessels engaged in cabotage.
Ships on standby
There may be situations where a vessel and its crew are stationed in a Canadian port on standby, during which time the crew is paid a wage or commission. In assessing work permit requirements in these situations, and consistent with existing guidance for all ships, officers should first consider requesting documentation showing whether an application for a CTL was made or a CTL has been obtained by the vessel.
In addition to this information, officers should consider all of the following:
- reason for which the ship entered Canada (this reason is considered evidence for the nature of the ship’s business [international or not] in Canada)
- expected duration of the standby in Canadian waters
- location where the ship is “primarily” doing business
Officers are further encouraged to consider whether the time spent on standby in Canada is foreseen or unforeseen.
In general, unforeseen periods of time spent in Canada on standby may not detract from an overall assessment that a ship remains engaged in international transportation. For example, vessels on standby as a result of mechanical failure or adverse weather or because they are waiting for a delayed delivery of goods intended for international shipment may remain engaged in international transportation despite the length of time they spend in Canada during which paragraph R186(s) applies.
However, when the amount of time spent on standby in Canadian territorial waters is reasonably foreseeable and of a duration that indicates the primary purpose is not international in nature, Labour Market Impact Assessments (LMIAs) and work permits are required for all foreign crew members and other employees onboard the vessel.
The following are examples of what officers could consider when making their assessment:
- whether a ship requires a CTL
- the reason that the ship is in Canada (the purpose)
- the length of time the ship will be in Canada and whether that period of time is reasonably foreseeable (where it primarily engages in its purpose)
- why the vessel cannot leave Canada if it is unable to (adverse weather conditions, engine failure, etc.)
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 air foreign crew members arriving on a flight into 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.
- Under the Canada Transportation Act a Ministerial exemption (article 61-62) 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 which requires these parts on an emergency basis may trigger an officer to wave work permit requirements.
- Many of the bilateral air transport agreements Canada has exchanged 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 and thus officers may consider waiving work permit requirements.
- 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 the air carrier or the charterer of domestic transportation solely between points in Canada. As such, this is not considered domestic services and officers may consider waiving work permit requirements.
- Foreign fractional ownership/private aircraft can sometimes also be used for charter or other publicly available air services. In such instances, a license 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, i.e., the Canadian airline, provides fuel, covers airport fees, duties, taxes and various other expenses. The aircraft(s) uses 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, i.e., the foreign airline, for a Canadian air carrier – so a foreign carrier wet leasing aircraft to a Canadian is providing an international non-scheduled service and the flight crew remain its employees – 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.
- 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 R186(s) of IRPR. “Wet leasing” – a term commonly used in the aviation industry – is an arrangement in which a (foreign) company leases an aircraft (complete with crew), to another airline (Canadian) for a specified time period. 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 R186(s)], if they work on direct flights from Canada to a point abroad or vice versa (i.e., not on flights involving stops in Canada).
- Historically, “wet leases” have been used to address shortfalls in aircraft availability due to technical or mechanical issues. However, 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 require both an LMIA and a work permit.
Assessing crew work permit exemption/wet leases
Employer should be 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;
- Occupation NOC;
- Season/year (i.e., 2013/2014);
- number of aircraft involved in the agreement and their registration numbers/IDs; and
- 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 Canadian Transportation Agency; CTA assesses the wet lease applications and will only approve as long as the number of wet leases does not exceed 20% of the Canadian airlines’ fleet (including dry leases). An officer can verify wet leases on the CTA Web site.
- Evidence that the foreign national continues to be employed by the foreign airline; and
- List of foreign pilots/first officers’ names, date of birth and nationality, and a detailed flight schedule indicating dates, times, destinations, aircraft ID.
Training: R186(s) does not provide authority for foreign nationals to enter Canada for training purposes.
See also: Commercial Airline Reciprocal Agreements
Given that a foreign crew involved in the land transportation of people and goods in Canada are almost exclusively American or Mexican citizens, the North American Free Trade Agreement (NAFTA) may inform officers’ approach to exempting foreign members of land transportation crew from work permits.
NAFTA notes that foreign crew members working aboard vehicles operating within Canada may deliver or pick-up goods and passengers across the U.S. and Canadian border insofar as they do not pick up and deliver from one location to another within Canada.
- Foreign truck drivers involved in international hauling should not generally become involved in the loading and unloading of their cargo when such is being delivered directly to a warehouse in Canada from a U.S. destination or picked up in Canada for direct movement to the U.S. If involved in loading or unloading of cargo, foreign crew on highway transport normally require an LMIA and a work permit.
- 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 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 U.S./Canada border.
- Foreign truck drivers who are employed by Canadian trucking companies to pick up goods in Canada for delivery to the U.S., and who are operating Canadian owned and registered vehicles, cannot receive consideration under R186(s), since both the company and vehicle are Canadian. Nor can independent foreign truckers working under contract to Canadian trucking companies receive consideration under R186(s), since they are being employed by a Canadian company.
- Similarly, under the NAFTA 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 U.S. or Mexico in order to preserve the international nature of the tour.
See section 2.7 “Distribution” under North American Free Trade Agreement for more information on transportation guidelines under NAFTA.
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 cargo at points within Canada as such actions would constitute cabotage and officers may wish to require a work permit for foreign national crew members.
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