Canada-Ukraine Free Trade Agreement immigration provisions in effect as of July 1

Law360 Canada (July 12, 2024, 10:26 AM EDT) --

Jacqueline Bart

Carrie Wright

Although Canada and Ukraine have had a free trade agreement in place since August 2017, this agreement was limited. It did not include sections on areas such as investment, trade in services, inclusive trade or temporary entry of businesspersons, among other areas addressed by many of Canada’s other free trade agreements. As a result, Canada and Ukraine announced the commencement of negotiations for the modernization of the agreement in January 2022. The final product of these negotiations is the modernized Canada-Ukraine Free Trade Agreement (CUFTA), which came into force on July 1, 2024.

Chapter 21 of the updated CUFTA includes provisions for temporary entry to Canada for certain categories of businesspersons who are either citizens or permanent residents of Ukraine. These categories include business visitors, investors, intra-company transferees and professionals.

The definition of business visitors in the CUFTA is like definitions found in others of Canada’s free trade agreements. A business visitor is a businessperson for whom the primary source of remuneration for the proposed activity is outside of Canada and the principal place of business and the predominant place of accrual of profits remains outside of Canada. Business visitor activities include meetings and consultations, research and design, manufacturing and production, marketing, sales, distribution, after-sales or after-lease services and certain general services. The maximum initial length of stay is six months, although extensions are possible if the applicant can provide documentation that satisfies the processing officer of the applicant’s need to have their stay extended.

To be eligible to apply for a work permit under the CUFTA as an investor, the applicant must: be a citizen or permanent resident of Ukraine; establish, develop or administer an investment to which a substantial amount of capital was committed or is in the process of being committed, either as the owner of the enterprise committing the funds or an employee of the enterprise; and be in a supervisory or executive role or a role that involves essential skills.

The definitions of supervisors, executives and essential skills are the same as those provided in the Canada-United States-Mexico Agreement (CUSMA). Initial applications must be submitted to a visa officer outside of Canada, or within Canada if the requirements of s. 199 of the Immigration and Refugee Protection Regulations (IRPR) are met. The initial length of stay is one year, and extensions are permitted if the applicant is able to provide documentation that satisfies an officer of the applicant’s need for the extension. Married spouses and common-law partners of investors may be issued an open work permit regardless of their citizenship, as spousal eligibility is based on the citizenship or permanent residence of the principal applicant.

The provisions regarding intra-company transferees are like those found in other free-trade agreements. The CUFTA allows for the transfer of citizens or permanent residents of Ukraine who are employed by an enterprise in Ukraine in an executive, manager or specialist role and who are seeking to render services to a parent, subsidiary or affiliate enterprise in Canada. The applicant must have been continuously employed by the transferring company for at least one year within the previous three years. The initial length of stay is up to three years, with possible extensions at the officer’s discretion if the applicant can provide documentation that satisfies the officer that the applicant needs to have their stay extended and is still in Canada for a temporary purpose. The total period of stay may not exceed seven years for executives or senior managers or five years for specialists. As with investors, married spouses and common-law partners may be issued an open work permit regardless of their citizenship.

Finally, the CUFTA also allows for the issuance of work permits to professionals. To qualify, the individual must: have an offer of employment in eligible occupations in Training, Education, Experience and Responsibilities (TEER) 0 or 1; have a post-secondary credential of four or more years of study and any additional educational requirements per their specific occupation in the National Occupation Classification (NOC); have two years of paid work experience in the sector of activity of the contract; and be remunerated at a level commensurate with other similarly qualified professionals in the industry and region where the work is performed (not including non-monetary elements such as housing costs and travel expenses).

The remuneration requirement is assessed based on the prevailing wage for the position on the Canada Job Bank. Eligible occupations include all TEER 0 and 1 occupations except for the following: health, education and social services occupations and related occupations; judges, lawyers and notaries except for foreign legal consultants; managers in postal and courier services; managers of telecommunications carriers; occupations related to cultural industries; and recreation, sports and fitness program and service directors.

In addition to the general eligibility requirements, if there is a concern about the applicant’s ability to communicate in one of the two official languages, an officer may ask an applicant to provide evidence to satisfy them that the applicant’s language abilities will permit them to perform the specific job for which they were hired, and they understand the health and safety requirements of their workplace. The initial length of stay is one year, with extensions by one-year increments if the applicant can provide documentation that satisfies an officer of their need to have their stay extended. Married spouses and common-law partners of professionals may also be issued an open work permit regardless of their citizenship.

These new immigration provisions of the CUFTA provide applicants who are citizens and permanent residents of Ukraine with important new avenues for obtaining work permits in Canada and underscore Canada’s commitment to its bilateral relations with Ukraine. These new categories of entry are also especially timely, given that the temporary measures originally put in place at the outset of the Russian invasion of Ukraine recently expired on March 31, 2024. The inclusion of immigration provisions in the CUFTA ensures that the entry of Ukrainians with business activities in Canada or those with a valid job offer as an investor, intra-company transferee or an eligible professional occupation will be subject to fewer barriers when seeking entry to Canada.

Jacqueline Bart and Carrie Wright are partners of BARTLAW LLP, Canadian Immigration Lawyers, a leading and top-rated corporate immigration law firm in Toronto and can be reached at info@bartlaw.ca.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437-828-6772.