Buying a Business that Has Foreign Workers

As an increasing number of Canadian employers employ foreign workers, and the Government of Canada is taking an increasingly strict approach in enforcing the rules regulating the employment of foreign workers, the issue of how companies can protect themselves when they buy companies that employ foreign workers is becoming increasingly significant.

As well, as explained in detail on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, corporate restructurings, mergers and acquisitions may themselves trigger work permit-related issues for employer compliance.

It is accordingly important for all companies that are considering merging with or acquiring another company to consider whether (a) the transaction will result in the need for new work permits for existing employees and (b) whether the company that will be employing these foreign workers will become liable for any non-compliance of the previous entity.

 

 

Understanding the “Successor in Interest” Concept

While the IRCC website is clear that employers become responsible for compliance post restructuring, merger or acquisition, the issue of whether the new employers become liable for previous non-compliance is more nuanced, and depends on whether the new employer has become the “successor in interest” for the portion of the organization where the temporary foreign workers were employed.

A “successor in interest” occurs where the new company or the purchaser substantially assumes the interests and obligations, assets and liabilities of the original owner and continue to operate the same types of business as the original owner.  There is no fixed definition of what “substantially assumes” entails, but companies should consider whether the new entity post restructuring, merger or acquisition has assumed the current assets, long term investments, property, human resources, patents, accounts payable, current liabilities, long-term liabilities, and continued employment of employees.

If the take-over organization is a successor in interest in that it has substantially assumed the interests, obligations, assets and liabilities of the original organization (wholly or partially) and continues to operate the same type of business as the original organization, the take-over organization remains the “employer” for the purpose of the existing work permit as well.

Are New Work Permits Needed? 

Where the new organization is a successor in interest, a change in ownership structure will not require a new LMIA or offer of employment.  If it is not, then a new LMIA or offer of employment and new work permits are required, and the employees should cease working for the take-over organization until new work permits have been obtained.

Where there is a corporate restructuring, merger or acquisition, the holder of a Labour Market Impact Assessment (an “LMIA”) should contact the Department of Employment and Social Development Canada to inform them of the change.  Whether a new LMIA will be required will depend on a variety of factors, including whether the corporate restructuring, merger or acquisition impacts the prevailing wage, job description and job duties of a foreign worker.

The same is true for IRCC’s International Mobility Program (the “IMP”).  The employers of Intra-Company Transferees, for example, will need to determine whether a qualifying relationship continues to exist following a restructuring, merger or acquisition.  As well, after the restructuring, merger or acquisition the new employer will have to carefully review the terms and conditions on each foreign worker’s work permit to determine whether there are any limitations on changes to job title, location, wages and duties. If there are, then new work permits may be necessary, depending on the work permit program that the foreign worker is employed under.

Liability 

Generally, where the new entity is not a successor in interest, then they assume the responsibility of complying with the Temporary Foreign Worker Program or the IMP on a going-forward basis, but do not assume the liabilities of the previous employer with respect to foreign worker compliance.  Where the new employer is a successor in interest, then they do assume these liabilities.

Steps Companies Should Take

There are several steps that companies can take to minimize risk when acquiring or merging with a company that employs foreign worker.

First, once the restructuring, merger or acquisition is done, then the new company may want to notify IRCC.  For example, if an organization changes its name or address, and there are no other changes to the structure of the company or to its Canada Revenue Agency business number, then the organization should contact IRCC to update their employer compliance portal information.  Where there is a change in CRA number, the employer should ask IRCC to link the new CRA number to their employer portal account. Requesting such changes do not delay the issuance of new work permits.

Second, prior to completing the purchase or merger, the organization should audit the other entity’s compliance with the employment of foreign nationals.  This includes obtaining a list of all foreign workers that the company has employed within the past six years (as this is the period that the government assesses), scrutinize whether the previous company complied with the laws regulating foreign workers and then determine what steps are needed going forward.

Third, the purchasing entity may want to contain in their purchasing agreement wording that indemnifies them of any non-compliance by the previous foreign worker.  For example, we have acted for purchasers where they successfully negotiated indemnifications against the consequences of any government inspections or audits of the new employer regarding the previous entity’s non-compliance, and also to cover the legal fees and costs of any voluntary disclosures to ESDC or IRCC had to be made following the discovery by the new employer of non-compliance by the previous employer.

Finally, where non-compliance is discovered, the purchaser should take detailed records, and consider making a voluntary disclosure to the Government of Canada. This could greatly reduce the consequences of non-compliance.

Conclusion

The consequences of not complying with Canada’s laws and regulations regarding the employment of foreign nationals can be severe, and include fines and prohibitions on hiring foreign workers.  Depending on the circumstances, existing work permits may be revoked. The purchaser of a business could find themselves financially devastated if, for example, the Government of Canada were to find them non-compliant.  For example, an individual who purchases a restaurant where all of the cooks are foreign workers could find themselves swiftly out of business if the previous employer’s non-compliance means that the new employer is both fined and prohibited from employing foreign workers.  As such, it is important that they take steps to protect themselves.

 

 


Assessing the Genuineness of a Work Permit Offer of Employment

Canada’s Immigration and Refugee Protection Regulations (the “IRPR“) states that a work permit application must be refused if an officer determines that the offer of employment is not genuine.

Section 200(5) of the IRPR states that in order to determine whether an offer of employment is genuine an officer should consider (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, (b) whether the offer is consistent with the reasonable needs of the employer, (c) whether the terms of the offer are terms that the employer is reasonably able to fulfill, and (d) the past compliance of the employer with federal or provincial laws that regulate employment.

Immigration, Refugee and Citizenship Canada’s (“IRCC“) guidelines contain extensive instructions to officers on assessing the genuineness of the offer of employment on a work permit application.

Actively Engaged

In order to demonstrate that an employer is actively engaged in the business an employer must do all of the following:

  • have an operating business;
  • provide either a good or a service; and
  • have a physical work location in Canada where the temporary worker will work.

The following are some red flags that can trigger an in-depth assessment of whether a company is actively engaged in the business.

  • the business information in the offer of employment raises concerns with respect to the organization’s active engagement in a business (such as being less than 1 year old);
  • there is negative publicly available information regarding the organization; and
  • previous work permit applications were refused because officers had concerns about whether an employer was actively engaged in the business.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Example of an employer actively engaged in the business

The owner of a high-end Japanese restaurant in Toronto would like to hire a Japanese sous-chef. His business has been open for 6 years and employs 36 people, including 8 foreign nationals.

An officer may be satisfied that the organization legally exists and has the ability to provide stable employment for the requested period because it does all of the following:

has been open for several years

already employs several people

provides food and drink in a physical space (that is, the restaurant)

Example of employer that may not be actively engaged in the business

The owner of a small Japanese “bento-box” delivery restaurant in Toronto would like to hire a Japanese cook. His business has been open for 5 months and employs 2 other people. He cannot provide the officer with T4s (his business is too new), nor can he provide a lease because he operates his business from home. He pays his employees with cash or in food, which they don’t mind because they are family members. He shows the officer order slips for produce bought last month.

Even if an officer is satisfied that this business may be operational, provides a good and has a work location, it has not “demonstrated the ability to provide stable employment for the requested period” because it is too new and does not pay its employees in a consistent and reliable way.

Reasonable Employment Need

In order for an employer to show that the offer of employment is consistent with the reasonable employment needs of the employer, the employer must demonstrate that the  offer of employment is reasonable in relation to the type of business the organization is engaged in.  Specifically, the occupation should be one that is reasonably expected in that organization’s sector, and the employer must be able to meet the terms of employment that they have offered.  In other words, the employer must be able to satisfactorily explain the role of the temporary worker in their operations and how it covers a reasonable employment need, in terms of both occupation and operation.

The IRCC website contains the following examples of when an employer might not be able to demonstrate that there is a reasonable employment need:

  • An insurance company is hiring a full-time actor.
  • A company has only 10 employees, and this is the sixth supervisor position they have offered in the last year.
  • A hair salon is hiring a management consultant.

Ability to Fulfill 

An employer must be able to demonstrate that the terms of employment are ones that they can reasonably fulfill. They must demonstrate that they are capable of providing, for the duration of the work permit, the hours of work, wages and benefits stated in the offer of employment.

Officers may request the following documents to show whether an employer can fulfill the terms of the job offer:

  • T4 Summary of Remuneration Paid
  • T2 Schedule 100/125
  • T2125 or equivalent
  • worker’s compensation clearance letter
  • business contracts.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A well-established restaurant chain is hiring a specialty cook. The chain has been in existence for over 10 years and is known for its exemplary food and service.

The restaurant chain is able to demonstrate that it is “capable of providing, for the duration of the work permit, work in line with the occupation, wages offered and acceptable employment standards” because they are well established and have several years of income to prove they can afford the new cook.

Negative example

A new home-based business is hiring a person to prepare food for a new gourmet meal delivery service. The owner of the new business declared a profit of only $10,000 the previous year, but they are going to be paying the temporary worker $45,000 a year.

The new business is not able to show that they have sufficient funds to pay the wages offered, nor do they have business contracts to show that they would be able to meet the terms of the offer based on monies to be received through the contracts.

Compliance with Federal / Provincial Law

Finally, an officer must be satisfied that the employer will be and has been compliant with federal and provincial or territorial laws regulating employment.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A British Columbia mining company is hiring a temporary worker. There are several news articles referencing the fact that they have won prestigious safety awards in their industry and that they are a top 50 company to work for.

Unless the officer has any indication to the contrary, they could be satisfied that this company has a common practice of compliance with “federal and/or provincial laws regulating employment and recruitment in the province(s) it is intended that the temporary worker will work” based on having won awards for safety and being one of the top 50 companies in Canada.

Negative example

An Alberta mining company has just received a provincial court judgement that they are guilty of involuntary manslaughter because of a lack of safety equipment on their work sites that caused the death of 2 workers.

The Alberta mining company has been found guilty in a provincial court of not complying with provincial and federal laws. Therefore, they do not meet this requirement, and the work permit would be refused.

Other Factors

It is important to understand that in determining whether an offer of employment is genuine, officers can go beyond the prescribed factors described above.  In Singh v. Canada (Citizenship and Immigration), Madam Justice Kane noted that where it appears that an employer is hiring a family member, and that the motivation appears more to help the family member than to fill a vacancy, then the genuineness of a job offer can be doubted.  Madam Justice Kane wrote:

I do not accept the applicant’s argument that the factors in subsection 200(5) are the only factors that can be considered to determine the genuineness of a job offer or that they should be interpreted so narrowly that the Officer’s legitimate concerns about the genuineness of a job offer could not be considered. In addition, paragraph 200(5)(a), whether the offer is consistent with the reasonable employment needs of the employer, is a broad question which would include consideration of a range of relevant factors, including: the nature of the business; the nature of the particular employment offered; the size of the business; the volume of sales; and, the number of employees. In my view, it would not be consistent with the reasonable employment needs of an employer in a specialized area, such as a jewellery business, to offer employment to a person who has not provided objective evidence of their qualifications and experience and whose personal connection to the business owner appears to be a higher priority than the objective and legitimate needs of the employer and business owner for a qualified jewellery appraiser.


When Procedural Fairness Requires a Fairness Letter

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns.  However, there will be a right  to respond under certain circumstances.

Requirement to Provide Complete Applications

Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.

As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents. They do not have to seek clarification or additional documentation, nor provide an applicant with an opportunity to address concerns, when the material provided in support of an application is unclear, incomplete or insufficient to show that someone meets legislative program requirements.

Credibility Concerns

A duty may exist, however, to provide an applicant with the opportunity to respond to a visa officer’s concerns when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

In Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759,  for example, an application was complete.  However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court acknowledged that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, Justice Mandamin, the same Justice as above, also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

Grewal v. Canada (Citizenship and Immigration), 2011 FC 167 provides another example of this principle. There, an application was rejected because of a poor IELTs score.  In brief, the applicant had arranged employment in Canada as a Retail Trade Manager, but the visa officer determined that she would be unable to perform the required duties  of the arranged employment because of her poor IELTS marks. The visa officer refused the application without providing the applicant with an opportunity to respond to this concern.

Justice Noel noted numerous factors that resulted in the officer having a duty to seek additional information from the applicant, including 1) that immigration guidelines specified that additional information would be required for doubts over Arranged Employment Offers, 2) that the language proficiency concern derailed the individual’s entire claim for permanent residence, and 3) that the applicant’s consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, Justice Noel determined that procedural fairness dictated that a fairness letter or interview be provided.

Singh v. Canada, 2010 FC 1306 is a final example.  There, an officer rejected a work permit application because the only documents which the applicant provided to support her claimed employment experience as a Ragi were reference letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was concerned with the veracity of letters, and did not request further documentation.

Conclusions

In 2011, Justice O’Keefe in Kaur v. Canada, 2011 FC 219 provided  an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear. Visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.


Do Cruise Ship Employees Need Work Permits?

 

Attributed to mjb84 on Flickr.

Regulation 186(s) of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) regulates when crew members are permitted to work in Canada without first obtaining a work permit.  The Regulations state:

R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that

(i) is foreign-owned and not registered in Canada, and

(ii) is engaged primarily in international transportation

Immigration, Refugees and Citizenship Canada (“IRCC“) has published helpful guidance as to how this Regulation is to be interpreted (the “Guidelines“).

What is a Member of a Crew

As per the Guidelines, on a cruise ship, crew members include:

  • licensed officers: master, first officer, chief officer or chief mate, first engineer or chief engineer, and subordinate officers and engineers;
  • non-licensed crew: ordinary seamen, able-bodied seamen, bosun (deck crew foreman), engine- room crew (oilers and fitters), and kitchen and mess-room staff (cooks, stewards and messmen); and
  • the hotel manager, cruise director, purser, medical staff, managers and staff of the ship’s bars, restaurants, boutiques and casino, as well as house-cleaning staff and entertainers.

Crew members do not include:

  • supernumeraries: spouses, children and other dependants of crew members;
  • foreign contractors and shipping company technicians: foreign nationals temporarily assigned to a vessel for the sole purpose of making repairs;
  • shipping company superintendents, including persons referred to as supercargo, superintendent engineers, or port captains;
  • employees or executives of a marine transportation company who travel aboard or who visit ships to monitor or supervise operations such as maintenance and repairs, preparation of cargo holds, preparation for inspection, and the loading or unloading of cargo; and
  • insurance company representatives who travel on vessels to familiarize themselves with shipboard operations on behalf of ship-owners’ insurers.

“Engaged Primarily in International Transportation”

IRCC’s Guidelines state in order to determine whether a means of transportation is “engaged primarily in international transportation” that an officer should consider whether the transportation falls under the definition of “coasting trade” in Canada’s Coasting Trade Act.  If the transportation does fall under the definition of “coasting trade” in the Coasting Trade Act, then a work permit will be required.

The Coasting Trade Act defines “coasting trade” as (definition simplified for ease of reading):

(a) the carriage of goods by ship from one place in Canada to any other place in Canada, either directly or by way of a place outside Canada;

(b) subject to paragraph (c), the carriage of passengers by ship from any place in Canada situated on a lake or river to the same place, or to any other place in Canada, either directly or by way of a place outside Canada;

(c) the carriage of passengers by ship from any place situated on the St. Lawrence River northeast of the Saint Lambert lock or on the Fraser River west of the Mission Bridge

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(d) the carriage of passengers by ship from any place in Canada other than from a place to which paragraph (b) or (c) applies

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(e) the carriage of passengers by ship

(i) from any place in Canada to any place above the continental shelf of Canada,

(ii) from any place above the continental shelf of Canada to any place in Canada, or

(iii) from any place above the continental shelf of Canada to the same place or to any other place above the continental shelf of Canada;

where the carriage of the passengers is in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada, and

(f) the engaging, by ship, in any other marine activity of a commercial nature in Canadian waters and, with respect to waters above the continental shelf of Canada, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; (cabotage)

Given how complicated the definition of coastal trading is, the following should provide a useful summary of when crew members do and don’t need work permits.
Foreign National Crew Will Need a Work Permit When

A work permit may be required if a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port. For example, if a cruise ship embarks all passengers in Montreal, disembarks some passengers in Charlottetown, and continues to New York where the remaining passengers disembark, then foreign crew members will require a work permit.

Foreign crew members will also typically require a work permit if the ship embarks passengers at one Canadian port and then ends the cruise and disembarks passengers at another Canadian port. For example, if passengers embark in Victoria, make a stop in Anchorage, Alaska, and end their cruise in Vancouver, then the foreign national crew will likely need require a work permit.

Foreign National Crew May Be Exempt When

Foreign crew will typically be exempt from the requirement to obtain a work permit when a cruise ship embarks and disembarks at the same destination within Canada, even if it makes stops in foreign jurisdictions. For example, if a cruise ship embarks passengers in Halifax, makes a stop in Boston, and then returns to Halifax then a work permit may not be required.  If this seems odd given that the start and end destinations are in Canada, it is simply because of how the Coastal Trading Act defines coastal trading.

Foreign workers may also be exempted if a cruise ship starts at a Canadian port of call, and ends its itinerary at a foreign port of call, so long as passengers do not disembark elsewhere in Canada. For example, if a cruise ship embarks in Vancouver, and disembarks in Portland, then foreign crew will likely be exempt.

Continue reading “Do Cruise Ship Employees Need Work Permits?”


How the Post-Graduate Work Permit Program Works

The Post-Graduation Work Permit (“PGWP“) allows students who have graduated from most Canadian public post-secondary institutions to stay and work in Canada upon graduation.  As someone who remembers when I was in undergrad the frustration of international students who had to leave Canada upon graduating even though they would have jumped at the opportunity to stay, work, and pay taxes in Canada, it is certainly a welcome program.

PGWPs are open work permits. This means that international graduates who possess them can work for any employer.  There is no restriction on the type of work that can be performed.  Having said that, if a student wishes to work in health care or in education they will need to first obtain a medical exam. And, as with all work permits, PGWP holders are prohibited from working in the sex industry.

There is no requirement for a job offer prior to applying.

Eligibility

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

If an international student in Canada completes a post-secondary program of study that is two or more years, the student can apply for a three-year work permit. If the program of study is between eight months and two years, then the student will be eligible for a work permit lasting for a period equal to the duration of the student’s  studies.

How to Apply

An international graduate must submit the application for a PGWP within 90 days, from either the date their final marks are issued or when they receive a formal written notification of graduation from the institution, whichever comes first, indicating that they have met the requirements of their program of study.

As well, their study permit must continue to be valid when you submit your application for a work permit.

The work permit application package and guide can be found on the Immigration, Refugees and Citizenship Canada’s website here. The checklist can be downloaded here. In addition to the standard forms and documents that are required for work permit applications, PGWP applicants are required to provide the following:

Combining Programs

One question that frequently arises is what would happen if a student obtains a second one-year diploma after having already completed a one-year diploma prior to that.  Would the student be eligible for a one year PGWP or a two-year one?

The answer is that the length of the two one-year degrees may be combined to obtain a three-year work permit.  For example, a student who obtains a one-year diploma program in Canada, and then completes a one-year MBA, well receive a three year PGWP.

Distance Learning

Students who complete a program of study by distance learning (from outside or inside Canada) are not eligible for the PGWP.

After much uncertainty over how this distance-learning policy was to be interpreted, pursuant to the IRCC website officers are recommended to use the following guidelines in their assessment of an applicant’s PGWP eligibility when they have taken distance or online learning in Canada:

  • when less than the majority of all the credits earned by the student toward the completion of a program of study were earned by completing online courses, a post-graduation work permit may be issued based on the length of the program as confirmed by the school, including credits earned from both in-class and online courses; and
  • when the majority of the credits earned by the student toward the completion of a program of study were earned by completing online courses, the applicant is ineligible for the PGWP, as the program may reasonably be considered a distance-learning program.

Implication of Doing a Victory Lap and Going on Exchange

While the PGWP requires full-time study, there is an exception for people in their last semester.

As well, going on exchange outside of Canada will not result in someone being ineligible to obtain a PGWP.

Open Spousal Work Permits

The spouse or common-law partner of a PGWP holder can obtain a work permit only if the PGWP holder is working in a skilled occupation as defined in National Occupational Classification 0, A or B of the National Occupational Classification website. To demonstrate this, the spouse or common-law partner should show the following.

  • a letter from their current employer confirming employment or a copy of their employment offer or contract; and
  • a copy of 3 of their pay stubs.

Refusal Rates

One of the more surprising things about the PGWP is its rather high refusal rate.  Indeed, during the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March the refusal rate was 40% or more.

Although a breakdown of the reasons for refusal of PGWP applications has not been published, it is likely because international graduates either:

  • attended a private school whose graduates are not eligible to receive PGWPs (which, contrary to the opinion of some private institutions) is mot of them;
  • their application was returned for being incomplete and when they tried to apply again their study permit had expired; or
  • a visa officer determined that they did not meet the full-time studies requirement.

In order to avoid such rejections, it is important that students:

  • research their prospective educational institution so that they know whether it qualifies;
  • ensure that their PGWP application is complete and that it includes the correct fee amount; and
  • if there is any question about whether their studies were full-time, to make sure that it is explained in their application.

As with all applications, the onus is on the applicant to make sure that they have shown that they meet the requirements of the PGWP.  If something is unclear, the visa officer is not under any obligation to seek clarification, but can refuse the application. For this reason, it is imperative that international graduates ensure that their application is complete and satisfactory.


Global Skills Strategy – Short Term (15 or 30 days) Work Permit Exemption

On February 6, 2018 Immigration, Refugees and Citizenship Canada (“IRCC”) clarified how its short term work permit exemption under the Global Skills Strategy would work.  Previously, the IRCC website simply stated:

Now, the IRCC website provides a much more comprehensive explanation of how the short term work permit exemption under the Global Skills strategy works.

General Conditions

The short-term (15 or 30 days) work permit exemptions are for certain high-skilled work and apply to foreign nationals coming to Canada to perform work that is both of a short duration (15 consecutive calendar days or 30 consecutive calendar days) and is in an occupation that is listed in skill type 0 (management occupations) or skill level A in the National Occupational Classification (“NOC”) matrix.

Such individuals may work in Canada without a work permit.

The periods can be as follows:

  • 15 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 6 months); or
  • 30 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 12 months).

The short-term work permit exemptions do not exempt people from the requirement to obtain a temporary resident visa or an electronic travel authorization, if applicable.

Entering and Exiting Canada

While foreign nationals are allowed to exit and re-enter Canada within the prescribed time frame (15 or 30 consecutive days) of work under the exemption, the authorized work period begins on the date the exemption is granted and is counted consecutively, regardless of whether the person is actually working in Canada.

IRCC is now specifically stating that any travel outside Canada after the date the exemption was granted will not extend the length of the exemption period. They provide the following example:

The foreign national was granted a 15-day exemption on August 1, 2017. If they travel outside Canada for 2 days within that 15-day period (August 6 to August 7, 2017), they may resume work activities on August 8 under this exemption until August 15, 2017, only.

Applicants from Inside Canada

Applicants already in Canada are not eligible to make an initial application within Canada for this exemption.

Renewals

Applicants can benefit from these short-term exemptions only if the necessary amount of time has elapsed since their last short-term exemption was granted. Consecutive uses are not permitted.

IRCC provides the following example on its website:

If a foreign national entered Canada under the 15-day work permit exemption and is required to work in Canada for another 15 days, they will not be eligible to renew their stay as a temporary worker. Six months must pass before foreign nationals are eligible to use the 15 day exemption again.

Working with Multiple Employers

IRCC on February 6, 2018 also clarified that the short term work permit exemption applies to the foreign national and not to the employer.

As well, if a foreign national enters Canada under the 15-day or 30-day work permit exemption and intends to work for more than one employer during that period, the foreign national is required to demonstrate that the work they intend to perform during that period meets the requirements of the short-term exemptions for all of their employers.

 


The Caring for Children Class, and the Caring for People with High Medical Needs Class

[UPDATE FEBRUARY 5, 2018]

The Government of Canada has very quietly announced that it is closing the Caregiver programs described below on November 29, 2019.  Applicants who did not start working as caregivers prior to that date will be unable to apply under these programs.

 

[ORIGINAL POST]

On November 28, 2014, the Government of Canada issued Ministerial Instructions completely overhauling Canada’s caregiver immigration programs.

The changes consist of:

  • Suspending the in-take of applications under the existing Live-in Caregiver Program;
  • Establishing the Caring for Children Class; and
  • Establishing the Caring for People with High Medical Needs Class.

The above changes all take effect on November 30, 2014.

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Labour Market Impact Assessments – Recruitment Requirements (2016)

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 (2016)”