One of the objectives of our immigration laws is to encourage the admission of skilled foreign nationals to work in Canada temporarily and then apply for permanent residence. Every year over 150,000 foreign workers are admitted into the Canadian work force to fill a variety of positions. Given this, how do you as a Canadian employer, perhaps frustrated with your inability to hire a Canadian with the skills you need, go about acquiring the expertise of a foreign worker speedily? Fortunately, there are a number of ways.
Although a foreign national is generally not allowed to work in Canada without a work permit, there are several exceptions to this rule. Under certain circumstances, a foreign national can engage in work without a permit or can obtain a work permit without first applying for a Labour Market Opinion (LMO) from Service Canada. As an employer, understanding these exemptions can streamline the application process for hiring skilled employees from overseas for your Canadian operations when you need them the most.
The most useful exemptions are found in the “business visitor” categories under the Immigration and Refugee Protection Act (which allows certain foreign workers to enter Canada without a work permit), the North America Free Trade Agreement (NAFTA) and the General Agreement on Trade in Services (GATS), a multinational treaty that facilitates business visits among member nations.
The definition of “business visitor” differs under each of these regimes but they do share important aspects. They all facilitate short term entry of a business visitor whose remuneration remains outside Canada and who does not engage in direct sales of goods and services to the general public. A business visitor may enter to participate in business meetings, make business contacts (including negotiations for the sale of services) and similar activities related to establishing a commercial presence in Canada. These visits should last no more than 90 days. Note, though, that more than a few such visits in any given year will raise the concerns of immigration officers.
If your company requires an employee to actually “work” in Canada, then you should consider the intra company transferee provisions of both NAFTA and GATS for employees who have been in executive, managerial or specialized knowledge positions with your company in another country for at least one year in the previous three. These provisions apply if a qualifying connection — such as a parent, subsidiary, affiliated or other associated relationship — exists between the Canadian and foreign entities. The immigration authorities also recognize that employees may have similar duties within the same company in two or more countries. In such cases employees may not need to move to Canada fulltime but still need a permit when their duties bring them here. Most intra company transferees can apply for a work permit simply and quickly at a port of entry, armed with a comprehensive letter of introduction from their company. However, any criminal record, even for a minor offence committed many years ago, can pose a problem for any application and should be handled by a professional well in advance.
Both NAFTA and GATS also have an LMO exemption for a long list of professionals seeking to enter Canada to work in their professional field. The most useful professional category under NAFTA is for “Management Consultant”, described as a person having a degree or five years’ experience as management consultant or five years’ experience in a specialty field related to the consulting agreement. There are many technical professions — including “Engineer” which can be useful in obtaining work permits under this category in construction, mining and other industries.
Finally, if LMO exemptions are not readily available, a Canadian employer can apply to Service Canada for an LMO to determine if the admission of the foreign national will negatively or positively impact the Canadian work force. If the work will likely result in job creation or retention for Canadians, or if the foreign worker can impart a skill to Canadian workers, permission will usually be forthcoming. Once an LMO is obtained, the employee can apply for a work permit at the port of entry, subject to the basic immigration requirements. Alternatively, application for the work permit can be made at a Canadian Consulate abroad but this method can take a number of months to process.
You should also note that, as an incentive to attract foreign workers, Canada allows spouses or common law partners of certain skilled temporary workers to have open work permits for the duration of the principal’s work permit without first having a job offer confirmed by Service Canada.