Four Year Cap on Temporary Foreign Workers

Please note that on December 13, 2016, the Government of Canada abolished the 4 year cap on foreign workers. 

capture

On April 1, 2011, Citizenship and Immigration Canada introduced a four-year cap on the maximum allowable cumulative duration that a Temporary Foreign Worker (“TFW”) can work in Canada.  Generally, once a foreign national has accumulated four years of work, he or she will be ineligible to work in Canada again until a period of four years has elapsed.

What Do Employers Need to Know

Before hiring a foreign worker, an employer should know the total time that the foreign worker has worked in Canada.  It would be unfortunate and costly to offer someone a job only to then discover that the person can either only work for a limited period, or not at all.

Example:

Since April 1, 2011, a TFW has accumulated three years of work in Canada, and is now applying for a two-year work permit in an occupation that is not listed in the ‘exceptions’. The work permit would only be issued for one year.

All work performed in Canada since April 1, 2011 — regardless of whether or not it was authorized by a work permit or exempt under Regulation 186 — counts towards a foreign worker’s four-year total. This includes work done as a volunteer, as a self-employed individual, work in all occupations falling under all categories in the National Occupation Code (“NOC”) list, work done while under implied status, and work done while on an open work permit, including post-graduate work permits.  The only exception is that any work performed during a period in which the foreign national was authorized to study on a full-time basis in Canada is not included in cumulative duration totals.

The cap does not only apply to people looking to start a new job or change employers.  It also applies to people who are looking to extend their contracts.

The Exemptions

Although their time in Canada will still count towards the four-year cap, numerous types of foreign workers will be able to work beyond four years.

The four-year cumulative duration will not apply to TFWs entering under one of the following occupations:

  • Workers seeking to work in NOC 0 or A occupations (important: NOC B is not exempted;
  • Workers who have applied for permanent residence and have received provisional approval;
  • Workers who are employed in Canada under an international agreement, such as NAFTA, the Seasonal Agricultural Worker Program, humanitarian and self-support based work permits, and work permits under Regulation 205; and
  • Workers who are exempt from holding a work permit under Regulation 186.

Gaps

Periods not worked which occurred after April 1, 2011, and during the validity period of any work authorizations issued after April 1, 2011, may be factored into the calculation of the accumulated total.  However, only gaps in employment of one consecutive month or more will be considered.

When the Clock ReStarts

The cap will start once four years are reached.  It does not matter if there is a significant gap during the foreign worker’s four years as a TFW.  As well, the foreign national has to wait for four consecutive years before he or she is allowed to become a foreign worker again.

Example

Foreign national works for three years, leaves Canada for three years, and applies for a two year work permit.  CIC will issue a one year work permit, and the foreign national will have to wait another four years before the clocks resets and he or she can apply again. If the foreign national had waited another year outside Canada, then he could have worked another full four years in Canada.

Example

A foreign national works for three years and 11 months on a work permit.  She then stays outside of Canada for three years, and then enters Canada to work for one months.  The foreign national leaves Canada and is now not eligible for a work permit for another four years.

Citizenship and Immigration Canada has published the following chart which may be useful to individuals trying to decide if the cap applies to them.

Appendix A Flow Chart described below