IRCC Clarifies Non-Compliance in the International Mobility Program

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:

Compliance History
Criteria Points
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
Criteria Points
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:

Type A
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 500 750
3 750 1000
4 1000 2000
5 4000 6,000
6 8,000 10,000
7 12,000 20,000
8 20,000 30,000
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:

Type B
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 750 1,000
3 1,250 2,000
4 3,000 7,000
5 7,000 12,000
6 12,000 20,000
7 20,000 30,000
8 35,000 45,000
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:

Type C
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 1,000 2,000
3 5,000 10,000
4 10,000 20,000
5 15,000 30,000
6 20,000 40,000
7 35,000 50,000
8 45,000 60,000
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
6 None None 1 year
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.

Voluntary Disclosure

If an employer voluntarily discloses non-compliance, then IRCC, at an officer’s discretion, may reduce the number of points, depending on the circumstances.

Warning Letters 

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.

Best Practices

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.

 


Free trade agreements help those who want to work in Canada, but the Trump presidency could impact Americans

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.

Upcoming agreements

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.


The Canada-European Union: Comprehensive Economic and Trade Agreement

On September 26, 2014, Canada and the European Uniona agreed to adopt the The Canada-European Union: Comprehensive Economic and Trade Agreement  (“CETA“), with the goal at the time being that the agreement will take effect in 2016.  While that ultimately did not happen, on October 30, 2016, Canada and the European Union signed a final version of the agreement.

Chapter 10 of CETA provides for the facilitation of the temporary entry of business persons.  The European Union’s commitments are the most ambitious that the region has ever negotiated in a free trade agreement.  For Canada, the CETA’s temporary contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences.  

CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“).  

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA.  When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union.

Continue reading “The Canada-European Union: Comprehensive Economic and Trade Agreement”


Restoration of Status

There are many ways that people who come to Canada legally can suddenly find themselves inside Canada without valid status.  Some may simply forget to submit applications to extend their status prior to the end of the period of their authorized stay.  Others may submit their extension applications on time only to have Immigration, Refugees and Citizenship Canada (“IRCC”) later refuse or reject their applications for being incomplete, leaving them without status in Canada.

While Canadian immigration law provides such foreign nationals with some options to regain valid temporary resident status in Canada, it is important that people understand the risks associated with each.

Leaving Canada and Re-Entering

The first, and arguably the riskiest, way that a foreign national can regain legal status in Canada is to exit Canada and re-enter.  Anyone who does this will need to satisfy the Canada Border Services Agency (“CBSA”) that they will leave Canada by the end of their authorized stay, which can sometimes be tricky if the person has previous overstayed.  As well, if the foreign national wants to work or study, then they will need to demonstrate to CBSA that they are eligible to do so.

Restoration of Status

For many, exiting Canada and re-entering is simply too risky or too expensive if they do not have a US visa.  Luckily, Canada’s Immigration and Refugee Protection Regulations provide that if a visitor, worker, or student loses their status in Canada, then they can apply to restore their status if they do so within 90 days of their status expiring.

Restoration applications must be submitted either online or by mail to IRCC.  Restoration applications cannot be submitted while entering Canada at a Canadian port of entry.

It is vital that foreign nationals submit their restoration applications within the 90 day period after their temporary resident status expires.  The failure to do so will automatically result in the restoration application being refused.

For those who lose status because IRCC refused their temporary residence extension application, the 90 day window to apply for restoration starts on the date that IRCC refuses the extension application, rather than when the foreign national’s work or study permit expired.  The 90 day window does not start on the day that the applicant receives the decision.  Although this may seem very unfair to those who lose time due to postage delays, the Federal Court has held that this rule even applies where there is a 90 day delay between IRCC refusing an application and the applicant receiving the decision.

Finally, it is important to note that students cannot study during the restoration period, nor can foreign workers work.

Removal and Restoration  

Many people are under the mistaken assumption that the 90 day restoration window provides a grace period from removal. This is not the case, as highlighted by a July 2016 Federal Court decision called Ouedraogo v. Canada.  There, the court explicitly determined that removal and restoration can operate in parallel, and that there was nothing prohibiting the CBSA from removing people during the 90 day restoration window if they had not yet applied for restoration.

The issue of whether CBSA can remove people from Canada after they have applied for restoration is more contentious.  Practically speaking, once a restoration application is submitted, it is very rare for CBSA to issue a removal order against a foreign national despite them being in Canada without status.  Where they have done so, the Federal Court has typically quashed the removal order and declared it invalid.  As the Federal Court noted in the case of Yu v. Canada, “ it cannot generally be said that a temporary resident who has applied for the restoration of a permit in a timely manner has failed to comply with immigration legislation.”

In any event, people who wish to apply for restoration of status need to do so with the understanding that at any point during the 90 day window to apply for restoration, or even possibly when their restoration is in process, the possibility exists that they can still be removed from Canada.

Temporary Resident Permits

It is difficult for people who have remained in Canada for more than 90 days beyond the expiry of their temporary resident permits and visas to regain legal status.  Such individuals may apply for permanent residence either by being sponsored by a Canadian through the Spouse or Common-Law Partner in Canada Class, or by submitting an application for permanent residence on humanitarian & compassionate grounds.

It is even more difficult to regain temporary resident status.  In very narrow circumstances, such individuals may apply for a Temporary Resident Permit. However, the situation must be exceptional, and simply remaining in Canada for more than 90 days beyond the expiry of temporary resident status will not automatically lead to such a permit being granted.

Conclusion

Of course, the best option is to simply not lose temporary resident status in the first place.  As such, it is important to keep track of when permits expire, to ensure that extension applications are complete, and to proactively move towards being eligible for any extensions.  The most common reason why people fall out of status is because they start the process too late.


Religious Workers and Work Permits

There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling.  Section 186(l) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that such people may work in Canada without a work permit.  IRPR r. 186(l) states:

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

(l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;

Generally, applicants applying to work in Canada without a work permit under IRPR r. 186(l) need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of that congregation’s denomination.

To demonstrate this, applicants should provide the following documents, where applicable:

  • Certificate of Incorporation of the employer;
  • Proof of registration as a charity or non-profit;
  • Statement from the religious organization showing:
    • the date and place of founding of the religious organization;
    • length of time in continuous operation in the province or territory of destination;
    • description of the structure of the organization;
    • copies of relevant corporate and society documents;
    • financial statements;
    • copy of residential lease if a residence is not supplied to the foreign national; and
    • other documents which establish the relationship between the religious denomination and the religious worker.

The second type of religious workers are people who are entering Canada to perform charitable or religious work.  Depending on the circumstances, such individuals may be exempt from the Labour Market Impact Assessment (“LMIA“) process, if they are carrying out duties for a Canadian religious or charitable organization and the duties themselves are of a charitable or religious nature (e.g., teachers assistants supplied by a charitable organization to a school because funds were not available to the school to hire).  These individuals can apply for a work permit pursuant to IRPR r. 205(d), which provides that:

205. A work permit may be issued under section 200 to a foreign national who intends to perform work that

(d) is of a religious or charitable nature.

The Temporary Foreign Worker Guidelines (“TFWG“) provide that an individual may be considered to be engaging in charitable or religious work if they meet the following conditions:

  • the duties performed by the individual must be of a charitable or religious nature that help to relieve poverty, or benefit the community, educational or religious institutions. As well, IRCC has updated its manual to specifically include camps that provide programs and services to children and youth who have physical or mental disabilities or who are economically disadvantaged;
  • the organization or institution which is sponsoring the foreign worker will not, itself, receive direct remuneration from any source on behalf of, or for, the services rendered by the foreign worker; and
  • the work goes above and beyond normal work in the labour market, whether remunerated in some manner or not, for example: organizations which gather volunteer workers to paint or repair the houses of the poor may qualify, provided that the work would not otherwise be done, i.e. if the recipients of this work are not able to hire a professional or do the work themselves. L’Arche, which relies on people to live full-time in a group home with people who have developmental disabilities; (workers in the homes are remunerated, but they are committed to taking care of the disabled people on almost a 24-hour basis.) persons who are giving their time to community or religious organizations in a position which would not represent a real employment opportunity for Canadians or permanent residents. (Though it is not mandatory, such work normally entails a requirement for the foreign national to be part of or share the beliefs of the particular religious community where they will work, or to have the ability to teach or share other religious beliefs, as required by the employer..)

The following is an example of an approval under IRPR r. 205(d).  I note that this was not one of my files, as it is not my practice to post my files on this blog.  Rather, this example of an approval was obtained through an Access to Information Act request.

charitablework

It is important to note that a non-profit organization is not necessarily a charitable one.  A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions.  While most of these cases are linked to registered charities, being a registered charity with the Canada Revenue Agency is not a mandatory requirement.  Such organizations will face greater scrutiny, however, in determining whether their mandate is to help relieve poverty, benefit the community, educational, or religious institutions.

Of course, foreign nationals seeking to enter Canada to perform religious work may also apply for a Labour Market Impact Assessment if they do not meet one of the above two requirements.

Tips

The following are 6 useful tips for foreign nationals who are considering entering Canada to perform religious work.

  • When you are applying make it clear that you are applying under either IRPR r. 186 or under IRPR r. 205.  Even if you are eligible for Permit A, but you request Permit B, then Immigration, Refugees and Citizenship Canada is not under any duty to provide you with Permit A: Sharma v. Canada (Citizenship and Immigration), 2014 FC 786
  • While religious workers from visa-exempt foreign countries do not need to apply for a visa from outside Canada to work in Canada without a work permit under R186L, they do need to satisfy Port of Entry officers that they meet the requirements of R186L.
  • One of the larger issues that applicants face is whether the employer can support them in Canada.  If the religious organization is small, it is not uncommon for officers to request supporting financial documents.
  • Even if you are eligible to work in Canada without a work permit pursuant to IRPR r. 186(l) you may want to obtain one nonetheless.  Some advantages of having a work permit include the possibility of open work permits for spouses and children, access to provincial health care, dependent children being exempted from having to obtain a study permits, and more.
  • There are several documents which can be useful to show the genuineness of the job offer, including a certificate of incorporation, proof of registration as a charity under the Income Tax Act, copies of the Constitution, financial statements, and proof of ordination.
  • I always recommend that people at least provide a letter from the Canadian religious organization.  Statements from the religious organization should mention the date and place of founding of the religious organization, the length of time in continuous operation in the province, a description of the structure of the organization, the size of the adult congreation, the number of clery employed, the address of the regularl emeting place, schedule fo worship.

Permanent Residency

It is important that people who work under IRPR r. 186(l) not exceed the duties described in that section, which are being responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling.  In Kaur v. Canada (Citizenship and Immigration), for example, the Federal Court found that a religious worker who was working in Canada under IRPR r. 186(l) had exceeded her duties by essentially being a religious teacher in a classroom setting at a religious institution. The Federal Court accordingly found that the work experience was unauthorised, and that the foreign national could not count that work experience towards the Canadian Experience Class.


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.