Canada’s Immigration and Refugee Protection Act states that a foreign national may not work or study in Canada unless authorized to do so.
The Immigration and Refugee Protection Regulations define work as “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.”
Wages and Commission
Wages includes salary or wages paid by an employer to an employee, remuneration or commission received for fulfilling a service contract, or any other situation where a foreign national receives payment for performing a service. It is clear that an individual who receives payment for services would be working under Canadian immigration law.
Activities that Compete Directly
The IRCC Guidelines states that for unpaid work officers must consider whether there is entry into the labour market. The two relevant factors that officers are to assess are:
- Will they be doing an activity that a Canadian or permanent resident should really have an opportunity to do?
- Will they be engaging in a business activity that is competitive in the marketplace?
The IRCC Guidelines further states that the following are examples of activities that constitute work.
- a foreign technician coming to repair a machine, or otherwise fulfill a contract, even when they will not be paid directly by the Canadian company for whom they are doing the work;
- self-employment, which could constitute a competitive economic activity such as opening a dry- cleaning shop or fast-food franchise. (A self-employed person may also be considered to be working if they receive a commission or payment for services);
- unpaid employment undertaken for the purpose of obtaining work experience,
Prospective temporary foreign workers in addition to deciding which work permit program they will apply to also need to decide how they will apply for their work permit. There are generally two options. The first is to apply either online or at a Visa Application Center to Immigration, Refugees and Citizenship Canada (“IRCC”) and wait for it to be approved before travelling to Canada. The second is to submit the application to the Canada Border Services Agency (“CBSA”) when entering Canada. There are advantages and disadvantages to each approach.
The Initial Work Permit
Foreign nationals who need a temporary resident visa to visit Canada must submit their work permit applications either online or at a Visa Application Center before they travel to Canada. However, those who do not require a temporary resident visa to visit Canada can apply in person at a port of entry. There are many advantages to applying at a port of entry, and it is typically the preferred approach. First, while IRCC’s work permit processing times range from two weeks to several months, the CBSA will process work permits on the spot. Second, many applicants prefer interacting face to face and speaking with the person who is adjudicating their application. While IRCC will often simply refuse a work permit application because of missing or vague information, the CBSA will essentially interview the person to fill in the gaps.
There are, of course, disadvantages to applying for a work permit in person at a port of entry. First, some people simply do not interview well, especially if English or French is not their first language. Second, if CBSA refuses the work permit application, the person will likely be told that they have to go back to their country of origin, and be denied entry to Canada.Read more ›
Section 207.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) states that (modified for ease of reading):
207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they
(a) hold a work permit; or
(b) previously held a work permit, have applied for a renewal of that permit and are authorized to work in Canada under implied status.
Family member of vulnerable worker
(2) A work permit may be issued to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).
In other words, temporary foreign workers in Canada who are experiencing, or have experienced abuse, can apply for open work permits. People who have engaged in unauthorized work or have not complied with employment conditions are not excluded from the program.
The objectives of IRPR r. 207.1 are to:
- provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer;
- mitigate the risk of migrant workers in Canada who are leaving their job and working irregularly (that is, without authorization) as a result of abusive situations
- facilitate the participation of migrant workers who are experiencing abuse, or who are at risk of abuse, in any relevant inspection of their former employer, recruiter or both; and
- help migrant workers in assisting authorities, if required (noting that this is not required for the issuance of the open work permit),
To be a member in the Self-Employed Class, an applicant must have a minimum of two years of experience in cultural activities, athletics, or the purchase and management of a farm (for applications received before March 10, 2018), during the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application.
The experience can consist of either two one-year periods of experience in self-employment in cultural activities, two one-year periods of experience in participation at a world class level in cultural activities, or a combination of one-year periods in the two.
The experience can also consist of either two one-year periods of experience in self-employment in athletics, two one-year periods of experience in participation at a world class level in athletics, or a combination of one-year periods in the two.
What is Self-Employment?
The Self-Employed Class section of the Immigration, Refugees and Citizenship Canada website does not describe what self-employment is.
However, the Canadian Experience Class section of the website provides the following:
Determining an applicant’s employment status
Applicants under the CEC must satisfy a CIC officer that they meet all program requirements [R87.1]. Any period of self-employment shall not be included in calculating the period of qualifying work experience under the CEC [R87.1(3)(b)]. As such, the CEC requires that applicants demonstrate they acquired skilled work experience in Canada through authorized employment by a third party.
As provided for in the CEC Document Checklist, principal applicants are requested to provide documentary evidence of their work experience in Canada through a combination of: a copy of their most recent work permit (unless they are work-permit exempt), copies of their most recent T4 tax information slips and Notice of Assessment (NOA) issued by the Canada Revenue Agency (CRA) or a sufficient combination of other supporting documentation,Read more ›
As of December 14, 2018 the Canada Border Services Agency (“CBSA”) has implemented a document checklist for work permit applications in the Pacific Highway District. It applies to Douglas, Pacific Highway, Boundary Bay, Aldergrove and Abbotsford-Huntingdon.
The checklists, which do not yet appear on the CBSA website, are below.Read more ›
I was recently provided with Access to Information Act results that an immigration consultant obtained which lists for 2016, 2017 and Jan – Aug 2018 the number of applications finalized, the approval rate, and the processing time, for the following applications from every IRCC office:
- Temporary Resident Visa
- Study Permit
- Work Permit
- Electronic Travel Authorisation
The results can be found in the embedded PDF below.Read more ›
Since July 4, 2012, Minister Instructions have been in place that prohibit temporary foreign workers in Canada from working in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation of some workers. The Ministerial Instructions define the business sectors where there are reasonable grounds to suspect a risk of sexual exploitation as being strip clubs, escort services and massage parlours.
When receiving applications for work permits made by foreign nationals seeking to work in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation, officers will not process the applications.
As well, all work permits advise temporary foreign workers of the restriction, as they typically state “not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services.
Employment and Social Development Canada’s Temporary Foreign Worker Program WIKI provides the following additional guidance.
Sex Industry: An employer that engages in striptease, erotic dance, escort services or erotic massage on a regular basis (eg. daily, weekly or monthly).
- Striptease and erotic dance: activities involving nudity. A business that engages in activities without nudity that may be interpreted as sexually suggestive (e.g. modelling) is not considered to be an employer offering striptease or erotic dance.
- Escort Services: The provision of services that are sexual in nature or for romantic companionship.
- Erotic Massage: The provision of massage services that are sexual in nature. This does not include massage activities undertaken for therapeutic reasons (e.g. performed by Registered Massage Therapists).
- An LMIA application received from an employer that hosts weekly strip dance shows should not be processed.
On June 12, 2017 Canada’s Department of Employment and Social Development introduced the Global Talent Stream.
Employers are eligible for the Global Talent Stream if they are hiring unique and specialized talent and if that talent has bent referred to the Global Talent Stream by one of ESDC’s designated partners. The list of designated referral partners for the Global Talent Stream includes the following organizations (as of March 21, 2018):
- Atlantic Canada Opportunities Agency
- BC Tech Association
- Burlington Economic Development Corporation
- Business Development Bank of Canada
- Canadian Economic Development for Quebec Regions
- Cape Breton Partnership
- City of Hamilton’s Economic Development Office
- Communitech Corporation
- Council of Canadian Innovators
- Economic Development Winnipeg
- Edmonton Economic Development
- Federal Economic Development Agency for Southern Ontario
- Genesis (Newfoundland)
- Global Affairs Canada’s Trade Commissioner Service
- Government of Alberta, Alberta Labour
- Government of British Columbia, Ministry of Jobs, Trade and Technology
- Government of Manitoba, Manitoba Education and Training
- Government of Nova Scotia, Nova Scotia Business Inc.
- Government of Ontario, Ministry of Citizenship and Immigration – Ontario Immigrant Nominee Program
- Government of Ontario, Ministry of Economic Development, Job Creation, and Trade – Ontario Investment Office
- Government of Prince Edward Island, Island Investment Development Inc.
- Government of Saskatchewan, Ministry of the Economy
- Halifax Partnership
- ICT Association of Manitoba (ICTAM)
- Innovation, Science and Economic Development Canada – Accelerated Growth Service
- Invest Ottawa
- Invest in Canada
- Launch Academy
- London Economic Development Corporation
- MaRS Discovery District
- National Research Council –
Section 9.4 of Annex B of the Canada – British Columbia Immigration Agreement 2015 provides that “if Canada or B.C. determines that there is a real and substantial risk to a foreign worker as a result of an employer not complying with federal or provincial laws, Canada and B.C. will jointly undertake actions to mitigate such risk, including, where appropriate, issuing a new Labour Market Impact Assessment (“LMIA”) through the priority Labour Market Impact Assessment process, or issuing a new work permit without the need for an LMIA provided that the Foreign Worker meets all other requirements of the Immigration and Refugee Protection Regulations (the “IRPR”).
On May 4, 2018 the Government of Canada announced how it will apply the LMIA exemption to foreign workers who are at risk as a result of potential employer non-compliance in British Columbia. The policy will be in force until April 7, 2020. The measures are available to all foreign nationals in B.C. who hold an employer-specific work permit for an employer located in B.C. or who are authorized to work without a work permit.
Under the policy, visa officers may consider issuing a work permit if they have reason to suspect potential employer non-compliance with provincial laws or reason to suspect potential employer non-compliance with federal laws.
According to the IRCC website, examples of employer non-compliance with a provincial law may include but are not limited to the following:
- employer non-compliance with the Employment Standards Act by charging job placement and recruitment fees or by repeatedly not paying wages owed to the foreign worker; and
- employer violation of the Occupation Health and Safety Regulations whereby the employer is failing to provide a safe work environment, which creates undue hazards to the health and safety of the foreign worker or fails to correct unsafe working conditions.
I recently received a call from a French citizen who was frustrated because they were continuously unsuccessful in the Young Professionals lottery. There was no need for them to be in the lottery, as they would have qualified for Mobilité francophone.
As previously explained on my blog here, IRCC has a work permit program specifically designed for Francophones who want to work in a skilled position outside of Quebec. As the Young Professionals Program requires a skilled offer of employment, as long as the French person had a job offer outside of Quebec they would qualify for Mobilité francophone.
Here are three basic things to note about Mobilite Francophone.
To qualify for the LMIA exemption, applicants must:
- apply at a visa office outside Canada;
- 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.
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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