How will a work contract affect an outland sponsorship?

[maxzom]

So, I'm a Yank and my fiance is a Canadian citizen. We've been engaged 5 years and I've been traveling back and forth 2 to 3 times a year for 4-6 weeks at a time. The longest spans around the holidays. She's been down around 6 times in that span, along with her two boys once, spent time with my family, so proving the relationship is sound is not a problem.

I'm a freelancer and I do almost all my work via computer and online – I have clients 20 minutes away from my U.S residence that I haven't seen in person for a year or more. I have done project work for a few Canadian clients, and I've been careful to complete 98% of that work when I've been out of Canada. It has been my understanding that as long as I had a majority of clients outside Canada, that was fine.

We are finally getting married in Canada end of September, and plan to do an outland sponsorship, and here is my question: I now have a lengthy contract (now my largest) with a Canadian client to provide design services, and I'm getting anxious about spending much time in Canada beyond the time around our getting married because I don't want to do anything to jeopardize my PR process. So I'm wondering if the wise thing to do, would be to get married, leave as I plan to, and then once I have the sponsorship approved, apply for an open work visa based on the fact that I have work already established in Canada via the contract. (And this contract is now my largest)

Guess it's a unique situation, haven't found anything like it in my research online. Thanks.

 

[scylla]

Unfortunately those circumstances don't qualify you for an open work permit.

Open work permits are only issued in very specific circumstances. The only one I can think of that would apply to you is if after you got married, your fiance sponsored you using the inland process. Once you have first stage approval (approximately 9 months after submitting the application), you would then qualify for an open work permit.

Otherwise you only qualify for a closed work permit. For that you likely need a job offer from an employer and an approved LMO from the employer (the second requirement can possibly be skipped if you qualify under NAFTA).

You're in a tricky situation. You're absolutely correct in understanding that you can't be working for a Canadian client in Canada without a work permit. I don't see any easy way out of this apart from making sure that you don't do any work for this client while in Canada (until you have PR).

 

[scylla]

It has been my understanding that as long as I had a majority of clients outside Canada, that was fine.

Just to clarify - the rule is not that the majority of your clients must be outside of Canada.

The rule is that without a Canadian work permit, you cannot do any work for your Canadian clients while inside Canada.

 

[maxzom]

Thanks for the NAFTA tip. There is a lot of info about Canadians entering the United States with a TN Visa, but going the other way the info is virtually nil. I do qualify under the Nafta job list, so I'll look into this further.

 

[frege]

Thanks for the NAFTA tip. There is a lot of info about Canadians entering the United States with a TN Visa, but going the other way the info is virtually nil. I do qualify under the Nafta job list, so I'll look into this further.

The criteria for NAFTA would be the same in both directions, I believe, though not the process.

You do have a tricky situation with the work issue. The essential question, as it is seen by Canadian immigration authorities is this: By performing this work, are you in competition, in a significant way, with members of the Canadian labour market? Is the reason you are in Canada unrelated to the work? I would say the way you came into contact with the Canadian client, and where you lived when you signed the contract, would possibly be important. If your Canadian address is far from the location of the client, that is a good argument that your presence in Canada is unrelated to your work. I don't think it's necessarily as cut and dried as "Lives in Canada, big Canadian client, hence illegal", although there might be a danger of the authorities getting the wrong impression there.

There may be additional considerations for business people visiting under NAFTA - this would be separate from the issue of a visa for NAFTA professionals.

For more information on the definition of "work" as seen by Canadian authorities, please see CIC operational manual FW1, particularly Section 5. Much of the manual is devoted to specifying what counts as work, and what exceptions exist.

http://www.cic.gc.ca/english/resources/manuals/fw/fw01-eng.pdf

Note that specific reference is made to long-distance work.

If you're still uncertain after reading that, then you might benefit from consulting a lawyer.

Also pay attention to the tax consequences of lengthy presences in Canada - you might be considered a "deemed resident" or even a "factual resident" for Canadian tax purposes, in which case reference would have to be made to the Canada-U.S. tax treaty to determine residence. Having a spouse in Canada is a big deal in this situation.

If you did ever fall afoul of the prohibition on "working" in Canada, it's not clear to me that it would necessarily jeopardize your sponsorship.