LMIA Exemption for Francophones

On June 1, 2012, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 429 (“OB 429“).  OB 429 provides that francophones destined to a province other than Quebec who will be working in a high skilled occupation can receive two year significant benefit work permits.  The benefit of a significant benefit work permit is that no Labour Market Impact Assessment (“LMIA“) is required.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • have been recruited through Destination Canada or other events coordinated with the federal government and francophone minority communities;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Importantly, the job itself does not have to require French.
There does not appear to be any limit on how many times the work permit can be renewed.
Depending how broadly the second requirement is interpreted, this could provide a significant advantage to francophone employers and francophones looking to immigrate to Canada.

The legal justification for providing preferential treatment to francophones intending to work outside of Quebec is based on s. 3(1)(b) of the Immigration and Refugee Protection Act (the “Act“), which states that one of the goals of Canada’s immigration system is:

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Although there is no legal reason why this LMIA exemption cannot also apply to anglophones seeking employment in Quebec, people awaiting an Operational Bulletin to this effect hopefully know how to hold their breath for a long time.

[Updated – October 2, 2014]

Please note that the LMIA exemption for Francophones ended on September 30, 2014.

As per the CIC website:

The exemption from a Labour Market Impact Assessment (LMIA) under the International Mobility Program for skilled Francophone workers destined to work in a province other than Quebec will be discontinued.

All applications received on or before September 30, 2014, 11:59 p.m. Pacific Standard Time (PST) will be processed and finalized as per the guidelines provided below. Applications received after September 30, 2014 will not be accepted. Foreign workers already in Canada will also not be able to request an extension under this exemption after September 30, 2014.

http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/francophones.asp

It is not hard to see why IRCC is bringing back the Francophone exemption. As the chart below shows, the percentage of immigrants of Francophone descent outside of Quebec is around 1%.

FrancophoneImmigration

[Updated – June 2, 2016]

On June 1, 2016, the Government of Canada reintroduced the exemption, with essentially the same requirements as before.

http://www.cic.gc.ca/english/resources/tools/updates/2016/2016-06-01.asp


Labour Market Impact Assessments – Recruitment Requirements

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

Continue reading “Labour Market Impact Assessments – Recruitment Requirements”



LMIA Exemption for the Performing Arts Sector

On February 3, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”, previously “CIC”) introduced new Labour Market Impact Assessment (“LMIA“) exemptions, and expanded the Business Visitors category for certain foreign nationals so that they may work in Canada without a work permit.

The specific changes are:

    • the introduction of a LMIA exemption for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents;

 

    • the introduction of a LMIA exemption to prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations; and

 

  • that foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may now be considered as Business Visitors.

The LMIA exemptions described above take affect on February 17, 2016.  The expansion to the Business Visitor category is effective immediately.

Significant Benefit Guidelines

As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents.

The IRCC website notes that such positions are typically unionized and pay above the provincial median wage for all occupations.

Applicants are advised to provide both a letter of support from the production as well as a letter from the relevant union or guild.

Work permits will be valid for the duration of the intended employment, or until the expiry of the foreign national’s travel document, whichever is earlier.  If there is no end date to the duration of intended employment, then the work permit will be valid for up to two years, or until the expiry of the foreign national’s travel document.

Reciprocal Employment Guidelines

As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations.

Evidence of reciprocal employment opportunities include:

    • where an offer of employment clearly indicates that the applicant’s job offer is in the dance, opera, orchestra or live theatre disciple of the arts, and that the employer is a current recipient of annual or multi-year operational funding support from the Canada Council for the arts or of financial support via parliamentary appropriation;

 

    • where there is a letter (or other evidence) submitted by the foreign national that has been provided by an applicable Canadian performing arts representative or service organization and that proves reciprocal international opportunities exist for Canadians in that discipline.  A 1:1 ratio is not necessary; rather, proof that similar opportunities exist for Canadians internationally is sufficient; and

 

  • where the applicant can provide a copy of a formal agreement between a Canadian performing arts organization and an international performing arts organization that stipulates the employment of particular workers who possess intellectual property related to the production.

Work permits will be valid for the duration of the intended employment, or until the expiry of the foreign national’s travel document, whichever is earlier.  If there is no end date to the duration of intended employment, then the work permit will be valid for up to two years, or until the expiry of the foreign national’s travel document.

Business Visitors 

As noted above, foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may be considered as Business Visitors.

The film producers must be employed by foreign companies.

As well, the essential personnel (e.g., actors, directors, technicians) must be entering Canada for a short duration, which on the IRCC website is stated as being no longer than two weeks.  The commercial must be foreign-financed.

This Business Visitor category is in addition to the existing work permit exemption for performing artists, which includes:

More information about the new LMIA exemption and Business Visitor categories can be found here.

Please contact us if you have any questions or concerns about his upcoming change.


Significant Benefit Work Permits

Most work permit applicants to Canada will typically need their potential employer to first obtain a positive or neutral Labour Market Impact Assessment (“LMIA“) before they apply for their work permit.  This is an arduous process which generally requires that the potential employer conduct recruitment, pay a $1,000.00 processing fee, a mandatory interview, and uncertainty for a period of several weeks to months.

However, there are several exemptions to the LMIA requirement.  One of these exemptions is where the entry of the prospective foreign worker would create or maintain significant social, cultural, or economic benefits or opportunities for Canadian citizens or permanent residents.  These work permits are typically known as Significant Benefit Work Permits, or C-10 Work Permits.

The CIC website contains guidance to officers who are processing C-10 Work Permit applications. It states that:

… circumstances sometimes present officers with situations where an LMIA is not available, and a specific exemption is not applicable, but the balance of practical considerations argues for the issuance of a work permit in a time frame shorter than would be necessary to obtain the [LMIA] opinion. [Significant Benefit Work Permits are] intended to provide an officer with the flexibility to respond in these situations. It is imperative that this authority not be used for the sake of convenience, nor in any other manner that would undermine or try to circumvent the importance of the LMIA in the work permit process. It is rather intended to address those situations where the social, cultural or economic benefits to Canada of issuing the work permit are so clear and compelling that the importance of the LMIA can be overcome.

Officers should look at the social and cultural benefit of authorizing entry to Canada for persons of international renown, examining whether a person’s presence in Canada is crucial to a high-profile event, and whether circumstances have created urgency to the person’s entry.

For requests for work permits based on significant economic benefit, where entry into the labour market is concerned, all practical efforts to obtain [an LMIA] assessment should be made before C10 is applied. Foreign nationals submitting an application for consideration under C10 should provide documentation supporting their claim of providing an important or notable contribution to the Canadian economy.

As such, the following are factors that officers typically consider:

  • Whether a LMIA is not available, specifically because the balance of practical considerations argues for the issuance of a work permit in a time frame shorter than it would be necessary to obtain the LMIA, and not simply for the sake of convenience;
  • Whether there is another specific exemption available;
  • Whether the social, economic, and cultural benefits to Canada are so clear and compelling that the importance of a LMIA can be overcome;
  • Whether there is an urgency to the person’s entry;
  • Whether the person’s entry is crucial to a high profile event; and
  • Whether all practical efforts to obtain a LMIA were made.

The following are examples of where Immigration, Refugees and Citizenship Canada (“IRCC“) either approved or refused C-10 Work Permit applications.  I note that these are not my cases, as it is not my practice to post my own files on this blog. Rather, these were obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36

sigben

It is important to note that although the policy only discusses economic, social, and cultural benefits, it is not uncommon for other benefits to be considered. In this approval, for example, IRCC considered the ecological benefits to Canada of admitting a foreign worker. sigbenmussel


Business Visitor or Work Permit Required?

The Business Visitor category facilitates the entry of a broad range of individuals who intend to enter Canada to engage in business or trade activities without entering the Canadian labour market. Business Visitors do not need work permits, pursuant to section 186(a) of Canada’s Immigration and Refugee Protection Regulations (“IRPR“), which states that:

No permit required

186. A foreign national may work in Canada without a work permit

(a) as a business visitor to Canada within the meaning of section 187;

IRPR s. 187, meanwhile, states that:

Business visitors

187. (1) For the purposes of paragraph 186(a), a business visitor to Canada is a foreign national who is described in subsection (2) or who seeks to engage in international business activities in Canada without directly entering the Canadian labour market.

Specific cases

(2) The following foreign nationals are business visitors:

(a) foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services;

(b) foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of goods or services that results from the training is incidental; and

(c) foreign nationals representing a foreign business or government for the purpose of selling goods for that business or government, if the foreign national is not engaged in making sales to the general public in Canada.

Factors

(3) For the purpose of subsection (1), a foreign national seeks to engage in international business activities in Canada without directly entering the Canadian labour market only if

(a) the primary source of remuneration for the business activities is outside Canada; and

(b) the principal place of business and actual place of accrual of profits remain predominately outside Canada.

Accordingly, the general criteria to be a Business Visitor is that:

(a) the employee must not intend to enter the Canadian labour market;

(b) the employee’s activity must be international in scope; and

(c) the primary source of the worker’s remuneration should remain outside Canada, the principal place of the worker’s employer should be outside of Canada, and the accrual of profits of the worker’s employer should be outside of Canada.

Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional, or business conventions, or meetings and soliciting business.

The following is an example of an approval under the Business Visitor category.  It also answers the often asked question of whether a foreigner who owns a business in Canada needs a work permit to simply meet with his Canadian staff.  Please note that this was not my file, as it is not my practice to post my files on this blog. Rather, this was obtained through an Access to Information Act request.

businessvisitor

Intra-Company Trainees and Trainers

IRPR s. 187(2)(b) is not as well known as it should be. As noted above, it provides that foreign nationals who are receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside of Canada, does not require a work permit.

The following is an example of an approval under this category. Please note once again that this was not my file, as it is not my practice to post my files on this blog. Rather, this was obtained through an Access to Information Act request.

intracorporate


Dance Instructors, Guest Speakers, and Working in Canada Without a Work Permit

Does a professional ballet teacher require a work permit and a Labour Market Impact Assessment to give a 4 day seminar in Vancouver?  The answer is.. it depends.

Section 186(j) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

Work Without a Work Permit

186. A foreign national may work in Canada without a work permit

(j) as a guest speaker for the sole purpose of making a speech or delivering a paper at a dinner, graduation, convention or similar function, or as a commercial speaker or seminar leader delivering a seminar that lasts no longer than five days;

No Work Permit Required

In accordance with IRPR 186(j), the Citizenship and Immigration Canada (“CIC“) website explicitly states that guest speakers for specific events, including as an academic speaker at a university or college function, and commercial speakers or seminar leaders, can enter Canada to work without a work permit provided the seminar to be given by the foreign speaker does not last longer than five days.

CIC defines a seminar as “a small class at a university, etc. for discussion and research, or a short intensive course of study, or a conference of specialists.”

CIC defines commercial speakers as “people who sell tickets or registrations to people who come to hear them speak on a particular topic.” CIC further states that commercial speakers have a vested interest in the event at which they are speaking. Typically, they rent commercial space in a hotel, advertise, charge admission, deliver the event and then leave Canada.

Where the speaker is speaking to multiple groups, then as long as the duration of the speaking events is in total no more than five days, then they can enter Canada to work without a work permit.  The five days does not include travel time in the case of multiple engagements.

However, commercial speakers who are hired by a Canadian entity to provide training services, or guest instructors of a particular sport coming to teach weekend seminars, do require a work permit and possibly a Labour Market Impact Assessment.

So what about the professional ballet teacher?  The answer would depend on a very careful examination of what duties the professional ballet teacher was performing.  Did her duties constitute leading a seminar? Or did it involve teaching or training?  When did the seminar occur? On a weekday or on a weekend? There is a very fine line between the two, and in light of the CIC website these are all questions that need to be very carefully considered.  Ultimately, here, CIC did admit the individual under IRPR 186(j).  However, that does not mean that all dance instructors should assume the same, and they should consider the above questions in detail.

We recently through an Access to Information Act found a case where a Yoga Master Instructor was approved under IRPR 186(j). The reasons are below.

yoga


Intra-Company Transfers – Specialized Knowledge

On June 9, 2014, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“).  OB-575 introduced more stringent requirements to the Intra-Company Transferee (“ICT“) – Specialized Knowledge program.  Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage.

Specialized Knowledge

Previously, CIC’s Temporary Foreign Worker Manual (“FW1“) specified that ICT – Specialized Knowledge applicants must demonstrate “specialized knowledge” of a company’s product or service and its application in international markets, or an an advanced level of knowledge or expertise in the organization’s processes and procedures.

Effective immediately, OB-575 requires that ICT – Specialized Knowledge applicants demonstrate a high degree of both proprietary knowledge and advanced expertise.  Specialized knowledge is unique and uncommon, and OB-575 states that “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.”  The onus is on applicants to provide evidence that they meet these requirements.

Proprietary knowledge is company-specific expertise related to a company’s product or service.  OB-576 specifically notes that it implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although OB-575 does not mandate that “advanced proprietary knowledge” is required, it states that:

Advanced proprietary knowledge would require an applicant to demonstrate:

  • uncommon knowledge of the host firm’s products or services and its application in international markets; or
  • an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.

An advanced level of expertise requires specialized knowledge gained through significant and recent (defined as within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.  OB-575 notes that:

In assessing such expertise or knowledge, officers consider:

  • abilities that are unusual and different from those generally found in a particular industry and that cannot be easily transferred to another individual in the short-term;
  • the knowledge or expertise must be highly unusual both within the industry and within the host firm;
  • it must be of a nature such that the applicant’s proprietary knowledge is critical to the business of the Canadian branch and a significant disruption of business would occur without the applicant’s expertise;
  • the applicant’s proprietary knowledge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Canadian labour market. Example: Skill in implementing an off-the-shelf product would not, by itself, meet the standard of specialized knowledge; unless, for example, the product is new or being highly customized to the point of being a “new” product. In other words, an ICT applicant is more likely to have truly specialized knowledge if they directly contribute to the (re)development of a product, rather than to the implementation of a pre-existing product.

In what is clearly a response to the RBC/iGate fiasco, OB-575 also mandates that officers consider:

  • ICT Specialized Knowledge workers must be clearly employed by, and under the direct and continuous supervision of, the host company;
  • given the nature of specialized knowledge, the worker will not normally require training at the host company related to the area of expertise; and
  • as the specialized knowledge will not be readily available within the Canadian labour market, and cannot readily be transferred to another individual, a specialized knowledge worker must not receive specialized training by other employees such that this would lead to the displacement of Canadian workers.

The following is an example of the approval reasons of an ICT – Specialized Knowledge applicant.  I note that this was not my file, as it is not my practice to post my own cases on this blog. Rather, this case was obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36

Mandatory Wage Floor

Effective immediately, ICT – Specialized Knowledge applicants must be paid the Prevailing Wage for their position.  Non-cash per diems, including hotel and transportation, are not to be included in the calculation of the overall salary.

This is perhaps not surprising.  There has been a huge disparity in the wages being provided to Intra-Company Transferees, especially in companies transferring Indian, mainland Chinese, or Filipino workers.  In 2013 Citizenship and Immigration Canada produced a chart for internal use documenting this, as reproduced below.

A201412451_2015-04-28_07-56-04_Page_06

Free Trade Agreements

It is important to note that the above changes do not impact ICT – Specialized Knowledge applicants under Free Trade Agreements, including the North American Free Trade Agreement.  This is because such agreements, which are negotiated between Canada and other countries, specify what the requirements for ICT – Specialized Knowledge applicants are. However, in interpreting those agreements, wage remains an important indicator of specialized knowledge and should be taken into account as an important factor in an officer’s overall assessment.