As a general rule, a person who is not a Canadian citizen or a permanent resident must hold a valid work permit in order to work in Canada. Work permits are issued by Citizenship and Immigration Canada (“CIC”). Further, as a general rule, prior to the CIC issuing a work permit, the employer must receive a confirmation of employment from Human Resources and Skills Development Canada (“HRSDC”). This confirmation of employment is referred to as a “Labour Market Opinion” (“LMO”).
Foreign workers may also require a temporary resident visa to work in Canada; however, citizens and permanent residents of the U.S. are exempt from this requirement.
There are a number of exemptions from the requirements for work permits and confirmations of employment, particularly under the North American Free Trade Agreement (“NAFTA”) (Columbia, Peru, Chile FTAs) and the General Agreement on Trade in Services (“GATS”). These exemptions are so numerous that they create a system that is more often governed by exemptions than by the rule.
Under Canadian immigration law, it is the worker who must apply for and receive the work permit. The foreign worker must submit to CIC a copy of the HRSDC confirmation of employment and a detailed description of the employment offer (provided by the employer). There is a non-refundable fee of C$150 for processing an application for an individual work permit.
A worker may apply for a work permit before entering Canada, at a port of entry or from inside Canada, depending on the worker’s status. Generally, temporary foreign workers must apply for a work permit before departing for Canada, although the actual work permit will be printed and given to the foreign worker at the port of entry when he/she enters Canada.
If the foreign worker is from the U.S. or if the foreign worker does not need a temporary resident visa to visit Canada and an exemption is available from the requirement to obtain a confirmation of employment (see ‘Confirmation of Employment’ below), the foreign worker is prohibited from applying for a work permit until his or her arrival at a port of entry.
If the applicant has been working in Canada for at least three months under an exemption, other than as a business visitor, but wants a permit to accept another job the foreign worker can apply for a work permit while already located in Canada.
In assessing the work permit application, the CIC will, on the basis of the report issued by HRSDC, ascertain whether the employment offer is genuine and “if the employment of the foreign national is likely to have a neutral or positive economic effect on the labour market in Canada.” There are new regulations coming into force April 2011 which set out all new rules for the issuance of LMO’s and the assessment of the “genuineness of the offer”. Attached is a separate paper on the new Employer Compliance Regulations.
Immigration officials cannot issue a work permit to a foreign national if:
- there are reasonable grounds to believe that the foreign national is unable to perform the work sought;
- the specific work that the foreign national intends to perform is likely to adversely affect the settlement of a labour dispute in progress; or
- the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization, subject to conditions.
Entry into Canada is subject to medical and security clearances, which vary according to the home country of the worker and the job sought. Any criminal record will preclude the issuance of a work permit, and the worker will be required to obtain Criminal Rehabilitation by an advance application.
The worker is expected to abide by the terms and conditions set out in the work permit. Work permits are valid only for a specified job, employer and time period. However, workers can apply to the CIC to modify or extend their work permit. An application to extend a work permit should be made at least 3 months prior to the permit’s expiry. It is currently taking CIC over 117 days to process an application to renew or to change the terms and conditions of entry to Canada. Once the application is submitted the foreign worker can continue in employment pending approval of the extension, as long as they remain in Canada while that application is pending.
If the employer dismisses the foreign worker, the employee must apply to change their status to a visitor or find a new employer and apply to change the work permit to that new employer. There is no positive obligation on any employer to report the change in employment status to Immigration.
Confirmation of Employment
As a prerequisite to issuing a work permit, an immigration officer will generally require a Labour Market Opinion or a ‘confirmation of employment’ from HRSDC. An employer who wishes to hire a temporary foreign worker is responsible for having the job offer validated by HRSDC.
HRSDC will base its confirmation of employment on the following factors:
- whether the work is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
- whether the work is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
- whether the work is likely to fill a labour shortage;
- whether the wages and working conditions offered are sufficient to attract Canadian citizens or permanent residents to, and retain them in, that work;
- whether the employer had made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and
- whether the employment of a foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.
The guidelines introduced by Service Canada for minimal recruitment efforts are as follows and are strictly adhered to:
NOC O and A Occupations
You will have conducted the minimum advertising efforts required if you:
- Conduct recruitment activities consistent with the practice within the occupation (e.g., advertise on recognized Internet job sites, in journals, newsletters or national newspapers or by consulting unions or professional associations); or
- Advertise on the national Job Bank (or the equivalent in Newfoundland and Labrador, Saskatchewan or the Northwest Territories) for a minimum of fourteen (14) calendar days, during the three (3) months prior to applying for a LMO
NOC B Occupations
You will have conducted the minimum advertising efforts required if you:
- Conduct recruitment activities consistent with the practice within the occupation for a minimum of fourteen (14) calendar days (e.g., advertise on recognized Internet job sites, in journals, newsletters or national newspapers or by consulting unions or professional associations); and
- Advertise on the national Job Bank (or the equivalent in Newfoundland and Labrador, Saskatchewan or the Northwest Territories) for a minimum of fourteen (14) calendar days during the three (3) months prior to applying for a LMO.
The advertisement must include:
- the company operating name;
- job duties (for each position, if advertising for more than one vacancy);
- wage range (i.e. an accurate range of wages being offered to Canadians and permanent residents). The wage range must always include the prevailing wage for the position – see “wage rate”;
- the location of work (local area, city, or town); and
- the nature of the position (i.e. project based, or permanent position).
NOC C and D Occupations (including seasonal agricultural workers)
You will have conducted the minimum advertising efforts required if you:
- Advertise on the national Job Bank (or the equivalent in Newfoundland and Labrador, Saskatchewan, Quebec or the Northwest Territories) for a minimum of 14 calendar days during the three (3) months prior to applying for an LMO; and
- Conduct recruitment activities consistent with the practice in the occupation. Advertisement must be for a minimum of 14 days, choosing one or more of the following options:
- advertise in weekly or periodic newspapers, journals, newsletters, national/regional newspapers, ethnic newspapers/newsletters or free local newspapers;
- advertise in the community, e.g., posting ads for two to three weeks in local stores, community resource centres, churches, or local regional employment centres;
- advertise on Internet sites e.g., posting during 14 calendar days/two weeks on recognized Internet job sites (union, community resource centres or ethnic sites).
There is now a 4 year cap on LMOs and an expiry date so foreign workers must rely on it within 6 months of issue or new recruiting efforts will be required.
If HRSDC is satisfied that the employment offer to a foreign national will not adversely impact the Canadian labour market, it will issue a confirmation of employment or LMO to the employer and enter the confirmation of employment into a database that can be accessed by immigration officials.
The employer then generally sends the foreign worker a copy of the LMO, as well as a detailed employment offer to be presented to immigration officials when the worker applies for his/her work permit at an overseas Canadian Consulate or upon the worker’s arrival at a port of entry, if the worker is coming from a country that is visa exempt. Upon receipt of the HRSDC confirmation, immigration officials will decide if the foreign worker otherwise qualifies for a work permit.
The confirmation process through HRSDC is a distinct stage from that of the work permit issuance by CIC. Currently the processing time at HRSDC is estimated at 3 to 5 weeks after receipt of acknowledgement of the application. Acknowledgements of receipt are currently taking 2 to 3 weeks.
Whenever possible, companies should consider whether there are any exemptions from the requirement to obtain:
- a work permit from CIC, and/or
- a confirmation of employment from HRSDC.
Exemptions from the Work Permit Requirement
Certain categories of workers are exempt from obtaining work permits. Individuals who meet the requirements of these categories can engage in work in Canada without a permit and are treated as visitors to Canada. The rationale for these exemptions is that the person would require entry into Canada regardless of the labour market and unemployment conditions in Canada at the time. Some of the exemptions that relate to trade and international business activities are business visitors, guest speakers, convention organizers, after sales service and warranty workers, supervisors of installers of specialized equipment, trainers and members of Boards of Directors attending Directors meeting in Canada.
A “business visitor” is a foreign national who:
- purchases Canadian goods or services for a foreign entity or receives training or familiarization in respect of such goods and services;
- gives or receives training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of the goods or services that results from the training is incidental;
- represents a foreign entity for the purpose of selling goods for that entity, if the visitor is not making sales to the Canadian public at large; or
- engages in international business activities in Canada without directly entering the Canadian labour market. This means that the primary source of remuneration for their business activities is outside Canada and their principal place of business and actual place of accrual of profits remain predominantly outside Canada.
Exemptions from the Confirmation of Employment Requirement
In some cases, a work permit application is required, but there is an exemption from the requirement to obtain HRSDC confirmation of employment.
Workers who require a work permit but not a confirmation of employment include those who are found to provide a significant benefit to Canada, spouses of temporary foreign workers, information technology workers, graduate students under a specialized work program and those who qualify for exemptions under NAFTA and GATS.
Benefit to Canada
Persons performing work that creates or maintains significant social, cultural or economic benefits or opportunities for Canadians do not need confirmation from HRSDC.
Some types of entrepreneurs, intra-company transferees and other types of workers, who will provide significant benefit to Canadians or permanent residents by working in Canada, do not need a confirmation of employment from HRSDC.
Spouses (including common-law partners) of temporary foreign workers can apply for a work permit without a confirmation from HRSDC, provided that the principal applicant is authorized by a work permit to work in Canada for at least six months. Initial this category was only available for spouses of skilled workers but recently it has been expanded to cover spouses of any temporary worker. The spouse of a temporary worker may apply for an open work permit, which allows the spouse to accept almost any job. The spouse’s work permit will expire when the principal applicant’s work permit expires.
Information Technology Workers
Initially created as the Software Pilot Program in response to the need of employers to fill shortages in the software industry, CIC developed a pilot project to streamline the entry of workers whose skills were in high demand in the software industry and whose entry into the Canadian labour market would have no negative impact on Canadian job seekers and workers. The program ends March 31, 2011.
Post Graduate Students – work permits
Graduate students from an approved school in Canada may work for a one to two year period in employment directly related to their course of study. A newly updated list of accepted institutions are being issued at the time. Recently a number of trade schools have been added to the list.
The application must be made within 90 days of the student completing the program. The period can not be extended past the one or two year period.
NAFTA and GATS
The most common exemptions from the requirement for confirmation of employment used by Canadian businesses are those set out in NAFTA – traders, investors, professionals and infra-company transferees, and those set out in GATS – professionals and intra-company transferees.
The employment provisions of NAFTA are intended to assist temporary entry for citizens of the U.S., Mexico and Canada who are involved in the trade of goods or services or in an investment activity. NAFTA provisions apply exclusively to citizens of the U.S. and Mexico. They do not apply to permanent residents of those countries. GATS, developed under the auspices of the World Trade Organization, establishes world wide rules on trade and investment in services, including the temporary entry of business persons under specified sectors. More than 130 nations have ratified, or are in the process of ratifying, GATS with respect to specified sectors. Canada has agreed to the inclusion of the following service sectors in the GATS agreement: business services, communication services, construction services, distribution services, environmental services, financial services, tourism and travel related services and transport services.
A NAFTA trader is a U.S. or Mexican business person seeking to enter Canada to carry on substantial trade in goods or services with Canada. The applicant must work in a supervisory or executive capacity, or one involving essential skills.
A NAFTA investor is defined as a U.S. or Mexican business person seeking to establish, administer or provide advice or key technical services to the operation of an investment, to which the person has committed a substantial amount of capital. The applicant must work in a supervisory or executive capacity, or one involving essential skills. Currently, the minimum “investment” is $25,000.00.
A GATS professional is one who seeks to engage, as part of a services contract, in an activity at a professional level, provided that the person possesses the necessary credentials and qualifications. There are nine accepted professions under GATS:
- forestry professionals;
- geomatics professionals;
- land surveyors;
- legal consultants;
- urban planners; and
- senior computer specialists.
Under GATS professionals may only work in Canada for a period of 90 days in any 12 month period.
More than 60 occupations are covered by the term professional under NAFTA so there is a greater likelihood of entry of a professional under NAFTA. Under NAFTA, one of the most useful categories is the one for a Management Consultant. A Management Consultant is described as a person having a degree or five years experience as a management consultant or five years experience in a field of specialty relating to the consulting agreement. Work permits for professionals under the NAFTA rules may be issued for one year with renewals on one year increments.
The intra-company transferee category allows a foreign organization to transfer senior managers, executive employees or employees with specialized knowledge to Canada to continue employment with a branch, affiliate, subsidiary or parent of the organization. Under NAFTA, the employee must have worked for the company for at least one year within the three years prior to the application for transfer in a position that is executive, managerial or involves specialized knowledge. Under GATS, the individual must also have been in similar employment for at least one year in the last three years.
Specialized knowledge is either special knowledge an individual has of a company’s product or service (including research, equipment, techniques and management) and its application in international markets or an advanced level of knowledge or expertise in the organization’s processes and procedures. A work permit under categories requiring ‘special knowledge’ is granted only if the worker has unusual skills and it would be difficult to train another worker to do the work.
Work permits will be issued for a maximum of three years, with two year renewals. Executives under NAFTA have a maximum stay of seven years under this category while executives transferred under GATS can continue to obtain work permits so long as CIC continues to accept that the posting is temporary.
Those with specialized skills are limited to a maximum stay of five years under NAFTA and three years under GATS.
CANADIAN LANDED IMMIGRANTS ENTERING THE UNITED STATES
Canadian landed immigrants (also known as Permanent Residents) from most commonwealth countries need a valid passport and a visa issued by the United States to enter the United States.
The visa requirements can be waived for landed immigrants from the United Kingdom, Ireland, Australia, New Zealand, Singapore and Brunei for business visits of less than 90 days.
The processing time for a visa, which must be applied for in person at a United States consulate or embassy, ranges from two to eight weeks. United States consulates will accept non-immigrant visa applications by appointment only. There is a $100 fee.
CANADIAN LANDED IMMIGRANTS RETURNING TO CANADA
Canadian landed immigrants must obtain a Permanent Resident Card. As of December 31, 2003 this card must be produced to re-enter Canada following international travel. The resident requirement to maintain status as a Permanent Resident is 730 days out of every 5 year period.
Cards are issued for a one or five year period. There is an application fee of $50.
In light of the incoming caps on LMOs, an early consideration of permanent residence for key foreign workers is now critical. There are many different categories that can be considered.