One of the most frustrating experiences for people applying for visas is to have an application returned due to incompleteness. Because of processing delays, it often takes Immigration, Refugees and Citizenship Canada (“IRCC“) months to return an incomplete application, and applicants have to then start over. While the practice of returning incomplete applications was originally limited to IRCC, on June 20, 2014, the Ministry of Economic and Skills Development Canada (“ESDC“) released a Temporary Foreign Worker Program Bulletin titled “How to Handle Incomplete Applications.”
How can temporary foreign workers show that they will leave Canada at the end of their work permit?
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Parents and grandparents of Canadian citizens and permanent residents can apply for two types of Temporary Resident Visas to visit their relatives in Canada. The first is a standard, multiple-entry visa. The second is what is known as a Super Visa.
A normal Temporary Resident Visa generally is a multiple entry-visa valid for the duration of an applicant’s passport, or 10 years, whichever is shorter. Unless the Canada Border Services Agency authorizes indicates, it allows applicants to stay in Canada for up to six months without having to apply to extend their temporary resident status.
A Super Visa is also valid for up to 10 years, or the duration of the applicant’s passport, whichever is shorter. It allows parents and grandparents to stay in Canada for up to two years without having to renew their status. Parents and grandparents who are from visa-exempt countries can also apply for Super Visas in order to receive Letters of Introduction that will allow them to stay in Canada for up to two years without having to renew their status. It is important to note that the two year entry only applies to the initial stay.
A parents or grandparent is eligible for a Super Visa if the parent or grandparent has:
- provided proof of the parent or grandparent relationship to the Canadian citizen or permanent resident;
- undergone a medical examination and is admissible to Canada on health grounds;
- provided satisfactory evidence of private medical insurance from a Canadian insurance company, valid for a minimum period of one year from the date of entry which:
- covers the applicant for health care, hospitalization and repatriation;
- provides a minimum of $100,000 coverage; and
- is valid for each entry to Canada and available for review by the examining officer upon request; and
- provided a written and signed promise of financial support, e.g. a letter of invitation, from the host child or grandchild for the entire duration the parent or grandparent intends to stay in Canada. The letter must be accompanied by evidence of their means of providing such support.
The Super Visa is meant to be a facilitate program, and if an applicant meets the Super Visa eligibility criteria, and is not otherwise inadmissible to Canada, Citizenship and Immigration Canada will normally issue the visa.
Please note that on December 13, 2016, the Government of Canada abolished the 4 year cap on foreign workers.
On April 1, 2011, Citizenship and Immigration Canada introduced a four-year cap on the maximum allowable cumulative duration that a Temporary Foreign Worker (“TFW”) can work in Canada. Generally, once a foreign national has accumulated four years of work, he or she will be ineligible to work in Canada again until a period of four years has elapsed.
What Do Employers Need to Know
Before hiring a foreign worker, an employer should know the total time that the foreign worker has worked in Canada. It would be unfortunate and costly to offer someone a job only to then discover that the person can either only work for a limited period, or not at all.
Since April 1, 2011, a TFW has accumulated three years of work in Canada, and is now applying for a two-year work permit in an occupation that is not listed in the ‘exceptions’. The work permit would only be issued for one year.
All work performed in Canada since April 1, 2011 — regardless of whether or not it was authorized by a work permit or exempt under Regulation 186 — counts towards a foreign worker’s four-year total. This includes work done as a volunteer, as a self-employed individual, work in all occupations falling under all categories in the National Occupation Code (“NOC”) list, work done while under implied status, and work done while on an open work permit, including post-graduate work permits. The only exception is that any work performed during a period in which the foreign national was authorized to study on a full-time basis in Canada is not included in cumulative duration totals.
The cap does not only apply to people looking to start a new job or change employers. It also applies to people who are looking to extend their contracts.
Although their time in Canada will still count towards the four-year cap, numerous types of foreign workers will be able to work beyond four years.
The four-year cumulative duration will not apply to TFWs entering under one of the following occupations:
- Workers seeking to work in NOC 0 or A occupations (important: NOC B is not exempted;
- Workers who have applied for permanent residence and have received provisional approval;
- Workers who are employed in Canada under an international agreement, such as NAFTA, the Seasonal Agricultural Worker Program, humanitarian and self-support based work permits, and work permits under Regulation 205; and
- Workers who are exempt from holding a work permit under Regulation 186.
Periods not worked which occurred after April 1, 2011, and during the validity period of any work authorizations issued after April 1, 2011, may be factored into the calculation of the accumulated total. However, only gaps in employment of one consecutive month or more will be considered.
When the Clock ReStarts
The cap will start once four years are reached. It does not matter if there is a significant gap during the foreign worker’s four years as a TFW. As well, the foreign national has to wait for four consecutive years before he or she is allowed to become a foreign worker again.
Foreign national works for three years, leaves Canada for three years, and applies for a two year work permit. CIC will issue a one year work permit, and the foreign national will have to wait another four years before the clocks resets and he or she can apply again. If the foreign national had waited another year outside Canada, then he could have worked another full four years in Canada.
A foreign national works for three years and 11 months on a work permit. She then stays outside of Canada for three years, and then enters Canada to work for one months. The foreign national leaves Canada and is now not eligible for a work permit for another four years.
Citizenship and Immigration Canada has published the following chart which may be useful to individuals trying to decide if the cap applies to them.
Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low. In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):
The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.
However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.
If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.
Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.
It does, however, include information derived from third parties that is not publicly available. For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC, then the officer must provide the employer with an opportunity to respond to the information that the third party provided.
On December 1, 2016, the Government of Canada lifted the requirement that Mexican nationals obtain a temporary resident visa (a “TRV”) prior to travelling to Canada.
As with all TRV exempt travellers, excluding Americans, Mexican nationals are still required to obtain an Electronic Travel Authorisation (an “ETA”) prior to boarding aircraft to travel to Canada.
The Government of Canada has also committed to gradually expanding eTA eligibility in 2017 to citizens of Bulgaria, Romania, and Brazil.
Electronic Travel Authorisation
The eTA is a new electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers apply online for an eTA by providing basic biographical, passport and personal information, and includes questions about their health, criminal history, and travel history.
An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review. Typical reasons for a further review include a previous denial of admission to Canada, a criminal record, or a pending permanent residence application.
The cost to apply for an eTA is $7.00. Applicants must have a valid passport, credit card, and e-mail address.
An eTA is only required for travel to Canada by air. It is not required for travel to Canada by land or sea.
Mexican citizens who already have a valid TRV do not need to apply for an eTA while their TRV is valid.
Future Visa Lifting for Brazil, Romania, and Bulgaria
The Government of Canada has also committed to expanding eTA eligibility to travellers from Brazil, Bulgaria and Romania.
Starting on May 1, 2017, Brazillian, Romanian, and Bulgarian citizens who have held a Canadian temporary resident visa at any time during the last 10 years, or who, at the time of application, hold a valid nonimmigrant visa from the United States, will no longer need a TRV to visit Canada, and can instead apply for an eTA.
Starting December 1, 2017, the eTA eligibility will be expanded to include all Romanian and Bulgarian citizens.
More information about the lifting of the visa requirement for Mexican citizens, including the specific regulatory changes and the Government of Canada’s cost-benefit analysis, can be found here.
More information about the future lifting of the visa requirement for Brazilian, Bulgarian, and Romanian citizens, including the specific regulatory changes and the Government of Canada’s cost-benefit analysis, can be found here.
More information about how to apply for an eTA can be found here.
Please contact us if you have any questions or concerns about these changes.
It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be.
Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP.
Breaches that Occurred Before December 1, 2015
It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same.
The Administrative Monetary Penalty Regime
Under IRCC’s AMP regime, employer non-compliance is divided into three types of violations.
Type A violations include where an employer:
- is unable to demonstrate that any information that it provided in respect of a foreign national’s work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
- did not retain document(s) that relates to employer compliance during a period of six years, beginning on the first day of the foreign national’s employment
- did not report at any time and place specified by IRCC to answer questions and provide documents during an IRCC inspection of the employer’s compliance with the IMP;
- did not produce required documents during an IRCC inspection; and
- did not attend an IRCC inspection, nor give all reasonable assistance to the IRCC officer conducting the inspection.
Type B violations include where an employer:
- did not comply with federal and provincial laws that regulate employment;
- did not comply with federal and provincial laws that regulate the recruiting of employees in the province in which the foreign national works; and
- did not provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment.
Type C violations include where the employer:
- was not actively engaged in the business in which the offer of employment was made; and
- did not make reasonable efforts to provide a workplace that was free of abuse.
Once IRCC determines which type of violation an employer’s violation falls under, IRCC will assign points under the AMP regime based on the employer’s compliance history and the severity of the violation.
Points for the employer’s compliance history are calculated as follows:
|Type A and B violations, first violation||1|
|Type A, second or subsequent violation||2|
|Type B violation, second violation||2|
|Type C violation, first violation||2|
|Type B violation, third or subsequent violation||3|
|Type C violation, second violation||3|
|Type C violation, third or subsequent violation||4|
Assessing the Severity of a Violation
Points for the severity of the violation are calculated as follows:
|Severity of the Violation|
|The employer derived competitive or economic benefit from the violation.||0 – 6|
|The violation involved abuse of a foreign national.||0 – 10|
|The violation negatively impacted the Canadian labour market or the Canadian economy.||0 – 6|
|The employer did not make reasonable efforts to minimize or re-mediate the effects of the violation.||0 – 3|
|The employer did not make reasonable efforts to prevent recurrence of the violation.||0 – 3|
In considering whether the employer derived competitive or economic benefit from the violation, IRCC considers the economic gain derived from non-compliance (total gain to the employer), the money that the employer saved from non-compliance with program requirements, and whether the employer’s practices (led to a competitive advantage over other employers who were following IMP rules.
Examples of economic gain include:
- significant underpayment or non-payment of foreign worker wages as well as wages for overtime for an extended period of time; and
- an employer refusing to pay required benefits (e.g., health benefits/transportation costs) as outlined on the offer of employment.
Examples of competitive benefit include evidence that an employer won a bid or contract by underpaying foreign workers.
In considering whether an employer’s violation involved abuse of a foreign national, IRCC will assign points where abuse actually occurs. IRCC will assign lower points where once the abuse was discovered, the employer was responsive in obtaining assistance for the foreign worker (i.e., notifying police or health care professional), the employer provided training to staff to prevent reoccurrence; or the employer developed policies and procedures that address situations of abuse in the workplace (e.g., steps to be taken if an employee or supervisor is aware of experiencing abuse).
In considering whether the violation negatively impacted the economy, IRCC will consider whether the employer’s actions resulted in a foreign national completing work that did not warrant a Labour Market Impact Assessment (“LMIA“) exemption. Higher points will be assigned where the employer did not take steps to rectify the situation once it determined that it should have obtained a LMIA.
Calculating the AMP
IRCC adds the number of points based on the employer’s compliance history and the severity of the violation to determine the AMP. In calculating the AMP, employers are divided into “large businesses” and “small businesses.”
A “small business” is any business, including affiliated entities, that have fewer than 100 employees or less than $5,000,000 in annual general revenue.
For Type A violations, the size of the AMP is as follows:
|Points||Individual or Small Business ($)||Large Business ($)|
|0 or 1||None||None|
|9 or 10||30,000||45,000|
|11 or 12||40,000||60,000|
|13 or 14||50,000||70,000|
|15 or more||100,000||100,000|
For Type B violations, the size of the AMP is as follows:
|Points||Individual or Small Business ($)||Large Business ($)|
|0 or 1||None||None|
|9 or 10||50,000||60,000|
|11 or 12||60,000||70,000|
|13 or 14||70,000||80,000|
|15 or more||100,000||100,000|
For Type C violations, the size of the AMP is as follows:
|Points||Individual or Small Business ($)||Large Business ($)|
|0 or 1||None||None|
|9 or 10||60,000||70,000|
|11 or 12||70,000||80,000|
|13 or 14||80,000||90,000|
|15 or more||100,000||100,000|
In addition to fines under the AMP, the number of points that an employer receives determines the ban length as follows:
|Total number of Points||Type A Violation||Type B Violation||Type C Violation|
|0 to 5||None||None||None|
|7||None||1 year||2 years|
|8||1 year||2 years||5 years|
|9 or 10||2 years||5 years||10 years|
|11 or 12||5 years||10 years||10 years|
|13 or 15||10 years||10 years||10 years|
|15 or more||Permanent||Permanent||Permanent|
Where an employer fails to comply with multiple conditions, each unjustified failure to comply is treated as a separate violation. As well, violations of a single condition that involve more than one foreign worker will be treated as separate violations for each foreign worker affected. For conditions that have separate elements, a failure to comply with each element that is not justified will be treated as a separate violations.
As the size of the AMP can soar dramatically depending on the number of foreign workers involved and the number of condition(s) breached, the maximum AMP that IRCC can impose is $1,000,000.00 for a breach. As well, the total AMPs imposed on a single employer cannot exceed $1,000,000 in the one-year period preceding the date of the final determination.
If an employer voluntarily discloses non-compliance, then IRCC, at an officer’s discretion, may reduce the number of points, depending on the circumstances.
When IRCC determines that total points of an employer’s non-compliance are fewer than two, IRCC will issue a warning letter to the employer. Warning letters count as violations for the purpose of calculating points on future violations.
As of writing there is one employer listed on the IRCC website for having not complied with the IMP. The consequence to the employer was a $750.00 fine. It is anticipated that there will be many employers subject to the AMP in the future. The regime is still new, and the rigidity with which IRCC assesses compliance within the IMP is still being developed. In the meantime, it is imperative that employers completing their employer compliance portal job offers understand the terms and conditions that they are attesting to complying with.
On Oct. 30, 2016, Canada and the European Union signed the Comprehensive Free Trade Agreement (CETA), which, amongst other things, will make it easier for European Union citizens to work in Canada without their employers first needing to obtain labour market impact assessments (LMIA).
CETA is only the latest free trade agreement that Canada has signed. One of the first steps that a foreign national who is interested in working in Canada should do is determine whether their home country has signed a free trade agreement with Canada. If so, they should check if the agreement encompasses their specific area of employment.
LMIA vs. free trade agreements
The main benefit of a free trade agreement encompassing one’s employment is that the person’s potential Canadian employer does not need to first obtain a positive or neutral LMIA prior to the foreign worker being able to obtain a Canadian work permit.
LMIAs can be a very cumbersome process. They generally require that an employer conduct domestic recruitment, meet prevailing wage requirements, complete numerous application forms, enter into a transition plan, and pay a $1,000 per foreign worker application fee. For many employers, obtaining LMIAs is simply too great an obstacle to employing foreign nationals in Canada.
It is much easier for employers to employ workers who are encompassed by free trade agreements. Employers must simply enter information about the proposed job offer into the Immigration, Refugees and Citizenship Canada website, pay a $230 employer compliance fee and provide a written job offer to the prospective employee.
Free trade agreements
As of writing, Canada has free trade agreements that contain immigration provisions in force with the United States, Mexico, Chile, Peru, Colombia and South Korea.
The North American Free Trade Agreement (NAFTA) is a free trade agreement between the United States, Canada and Mexico. It provides that Mexican and American citizens can obtain three-year work permits (with unlimited extensions) if they are coming to work in Canada in one of 63 skilled professions, including accountant, computer systems analyst, economist, engineer, graphic designer, management consultant, mathematician, scientific technician, pharmacist, psychologist, registered nurse and teacher.
I once represented a Canadian design company that was debating between either hiring a Mexican or a British engineer. They had assumed that it would be easier for the company to hire the British person. However, because Canada does not actually have a free trade agreement with the United Kingdom in force (yet), it was actually much easier to hire the person from Mexico. The company decided to go with to the Mexican engineer.
The Canada-Chile Free Trade Agreement is substantially the same as NAFTA in regards to foreign workers, while Canada’s free trade agreements with Colombia and Peru are far broader than NAFTA. Colombian and Peruvian professionals can work in any skilled position in Canada for three years (with no limits on extensions), except for certain health, education, social services and cultural industries. As well, a wide range of technicians can work in Canada without LMIAs, including engineering technologists, certain trades supervisors, chefs, carpenters, mechanics, etc. Indeed, for the foreseeable future, it will likely be easier for a Canadian employer to employ a Colombian or Peruvian then a citizen of any other country.
Both the Canada-Korea Free Trade Agreement (CKFTA) and CETA adopt a different approach to the entry of foreign workers. Both require that skilled foreign workers be entering Canada as either contract service suppliers or independent professionals. South Koreans can get three-year work permits, while European Union citizens can get one. When the CKFTA came into force, many South Koreans who otherwise might not have been able to extend their Post-Graduate Work Permits were able to continue to working in Canada; given the wording of CETA, it seems like the same will be true for them.
Countries under GATS
In addition to the above free trade agreements, Canada is a signatory to the General Agreement on Trades and Services (GATS). Under GATS, citizens whose country is one of the 164 members of the World Trade Organization can obtain a 90-day work permit to work in Canada as an engineer, agrologist, architect, forestry professional, geomatics professional, land surveyor, urban planner and senior computer specialist.
Finally, Canada is also a signatory to the Trans-Pacific Partnership, although it has not yet been ratified. If Canada does, then most Australian, Chilean, Japanese and Mexican skilled workers will be able to work in Canada on up to one-year work permits, which can be renewed. Most Malaysian managers and professionals will be able to as well.
Although the United States, New Zealand and a few other countries are also signatories to the TPP, those nations decided to not facilitate the entry of Canadian workers, so Canada will not be providing those nations’ citizens any new LMIA exemptions.
The Trump effect
At this point, it is necessary to discuss the consequences of the election of Donald Trump as the next president of the United States. If there is one thing that Trump has been consistent on during the past several decades, it is that he loathes free trade agreements. Trump has promised to not ratify the TPP, whose future is now uncertain. He has also promised to either restrict NAFTA or to even outright withdraw the United States from it.
Perhaps the best example of how significant free trade agreements can be in an immigration context is that since the election of Donald Trump, our office has received numerous phone calls from concerned Americans currently in Canada wanting to know what will happen to their ability to continue working here if Trump fulfills this promise.
How to apply
So, how can one determine if they’re encompassed by a free trade agreement? The best way to do this is to search “IRCC Free Trade Agreements” on any search engine, and to then click on the link that says “International Mobility Program: International Free Trade Agreements.” This is an IRCC webpage that provides information on the foreign worker provisions of all free trade agreements, including documentary requirements.
Understanding the material on this website can often be the difference between a long and cumbersome process versus a straightforward one, and even becoming a foreign worker and not.