Immigration, Refugees and Citizenship Canada’s (“IRCC”) International Mobility Program contains Labour Market Impact Assessment (“LMIA”) exemption code C-11, titled Canadian interests – Significant benefit – Entrepreneurs/self-employed candidates seeking to operate a business. The exemption falls under Regulation 205(a) of the Immigration and Refugee Protection Regulations.
According to the IRCC website, the eligibility requirement can be divided into those who seek permanent residence and those who don’t.
For those who seek permanent residence, an applicant must:
- be an actual or potential provincial nominee undertaking business activities or be a Quebec-destined entrepreneur or self-employed person issued a Quebec Selection Certificate (a “CSQ”); and
- have a letter of support from the province or territory (this letter of support should count towards evidence that their admission to Canada to operate a business may create significant economic, social or cultural benefit to Canada) or a request from the Ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI) requesting early entry.
For those who do not seek permanent residence, an applicant must:
- demonstrate that their admission to Canada to operate their business would generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents. Benefits to Canadian clients of a self-employed worker may be considered in this case, particularly if the worker is providing a unique service.;
- satisfy an officer that they have the ability and willingness to leave Canada at the end of the temporary period authorized; and
- will have the incentive to depart Canada when their work is complete or the business closes.
Some of the factors in determining whether there will be a significant benefit include:
- Is the work likely to create a viable business that will benefit Canadian or permanent resident workers or provide economic stimulus?
Last updated on September 2nd, 2021
In 2021 Immigration, Refugees and Citizenship Canada introduced facilitative measures to provide open work permits to residents of Hong Kong and facilitative measures creating two pathways to permanent residence to facilitate the immigration of certain Hong Kong residents.
The public policy allows for the issuance of open work permits to eligible residents of Hong Kong, whether they are in Canada or abroad, for a period of up to three years. Eligible family members may also be issued an open work permit.
To be eligible, the foreign national must:
- hold a valid passport issued by the Hong Kong Special Administrative Region or the United Kingdom to a British National Overseas;
- have graduated no more than 5 years before you apply for this open work permit, with one of the following:
- a degree (for example, associate, bachelor’s, master’s or doctoral) from a designated post-secondary learning institution in Canada or an institution abroad; or
- a diploma for a minimum 2-year program from a designated post-secondary learning institution in Canada or an institution abroad.
Alternatively, they can hold:
- a graduate or post-graduate credential (for example, a post-graduate diploma) that wasreceived no more than 5 years before they apply. The credential must be for a program:
- that is a minimum of 1 year
- that requires a post-secondary degree or diploma, which you completed no more than 5 years before you started the post-graduate program
- at one of the following:
- a designated learning institution in Canada
- an institution abroad
Work permits will be valid for up to three years.Read more ›
Regulation 205(b) of the Immigration and Refugee Protection Regulations provide that:
205 – A work permit may be issued under section 200 to a foreign national who intends to perform work that
(b) would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries.
Immigration, Refugees and Citizenship Canada (“IRCC”) accordingly has a Labour Market Impact Assessment Confirmation Exemption Code C-20 which allows foreign workers to take up employment in Canada when Canadians have similar reciprocal opportunities abroad.
As per the IRCC website, entry under reciprocal provisions should result in a neutral labour market impact.
This provision also allows for admission of workers where reciprocity is demonstrated by the Canadian employer (or specific program administrator).
The IRCC website further states:
This could be indicated in the exchange agreement between the Canadian and foreign parties, a letter from the receiving Canadian institution, the work contract (if it provides evidence of reciprocity) and, if necessary, the officer can request documents and/or data to enable verification of reciprocal employment volumes. Bona fide evidence of reciprocity will allow the officer to issue a work permit.
It is not necessary that there be exact reciprocity (i.e. one for one exchange), but the general order of magnitude of exchanges should be reasonably similar on an annual basis. In assessing reciprocity, one would consider the relative number and percentage. For example, for exchanges involving larger numbers of foreign nationals (e.g. greater than 25), officers could require a higher minimum proportion of Canadians employed abroad to foreign nationals employed in Canada (e.g. at least 75%) than for smaller exchanges.
When the entities involved have no history of conducting reciprocal exchanges with Canada,Read more ›
The Federal Court decision in Calderon Garcia v. Canada (Citizenship and Immigration), 2012 FC 412 sets out the legal principles regarding a delay in claiming asylum. It states:
The Applicants assert that the Board erred in rejecting their claim based solely on the delay in claiming and a lack of supporting documentation. However, this position is not supported by the Board’s decision or related jurisprudence.
Delay in making a refugee claim “is not a decisive factor in itself” but it is a “relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant” (Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR 225,  FCJ no 271 (CA)). It is reasonable to expect that the Applicants would make a claim at the first possible opportunity (see Jeune v Canada (Minister of Citizenship and Immigration), 2009 FC 835,  FCJ no 965 at para 15).
Recent jurisprudence also suggests that while the delay itself is not determinative, it “may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim” (Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988,  FCJ no 1259 at para 14). Absent a satisfactory explanation for the delay, it “can be fatal to such claim, even where the credibility of an applicant’s claims has not otherwise been challenged” (Velez v Canada (Minister of Citizenship and Immigration), 2010 FC 923,  FCJ no 1138 at para 28).
While the Board implied that the nineteen month delay in this instance would be fatal to the claims, it proceeded to raise several other issues associated with the Applicants’ credibility, notably evasive testimony and the lack of corroborating documents. It is evident from the remainder of the decision that the delay was a significant factor,Read more ›
The Temporary Foreign Worker Manual states the following about working conditions.Read more ›
Last updated on November 15th, 2021
Regulation 200(3)(a) provides that an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.
In jurisprudence on applications for skilled worker class permits it has also been held that if the officer has concerns about the veracity of documents, procedural fairness demands that the officer make further inquires. However, an officer is generally not under a duty to inform a skilled worker class permit applicant about his concerns when they arise directly from the requirements of the legislation or regulations. As the Federal Court of Canada noted in Li v. Canada (Citizenship and Immigration), 2012 FC 484, the same applies in work permit applications.
As the court held in Kumar v. Canada (Citizenship and Immigration), 2020 FC 935, because of the legislative requirement that officers not issue work permits to foreign nationals if they believe that the foreign national is unable to perform the work sought, then even if Immigration, Refugees and Citizenship Canada’s online checklist does not specifically require documents such as diplomas, academic transcripts, or certificates of English proficiency, an officer can refuse an application if they are not provided when requested by an officer.
On the specific issue of language proficiency, officers can expect more than an English language application and cover letter to verify an applicant’s ability to speak and write in English, where there are reasonable grounds to believe that such language skills are necessary to perform the work sought.
Since 2018 the Federal Court of Canada has adopted an increasingly strict approach in assessing whether prospective truck drivers can perform the work sought.Read more ›
Section 203(3)(f) of the Immigration and Refugee Protection Regulations states an assessment provided by the Department of Employment and Social Development (“ESDC”) with respect to the whether the entry of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada shall be based, in part, on whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress of the employment of any person involved in the dispute.
ESDC policy is short on this matter, and states that employers should not use the Temporary Foreign Worker Program to circumvent a legal work stoppage or to influence the outcome of a labour dispute.
A labour dispute is defined as occuring when the parties to a collective agreement have reached an impasse in their efforts to enter into, renew or revise a collective agreement and require the intervention of a third party (e.g., government labour officials) to resolve the differences.
It does not include all grievances between a union and employer.
Labour disputes, which often arise during collective agreement/contract negotiation between an employer and a union, may include: work stoppage, strikes, refusal to work, picketing, lockouts, etc. They also arise in situations that are in reaction to working to conditions dictated by legislation such as refusal to perform duties when employees feel that their security might be jeopardized, or different views on issues related to labour standards such as overtime, wages and holidays.
Read more ›
Regulation 203(3)(b) of the Immigration and Refugee Protection Regulations (the “IRPR“) states:
(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:
(b) whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
The Temporary Foreign Worker Manual states that the following principles should guide the assessment of whether the employment of a foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents.
First, an officer conducting an analyis of a Labour Market Impact Assessment (an “LMIA”) application should reflect a reasonable and balanced approach ensuring that officers do not base their decision solely on the outcome of one of the seven labour market factors. An employer can receive a positive LMIA even if this factor is assessed to be negative and an employer can receive a negative LMIA even if this factor is assessed to be positive.
Second, for Owner Operator LMIAs, assessing if the entry of a foreign national will result in the development or transfer of skills and knowledge is essential.
Third, the following questions will help guide the assessment of this factor:
- How will the staffing of this position lead to the transfer of skills and knowledge?
- What is the skills or knowledge being transferred or developed?
Last updated on March 1st, 2021
While the assessment of the bona fides of a marriage has long been a requirement in Canada’s family reunification programs, it has traditionally not been a significant factor in temporary residence applications. This has recently changed, especially for those submitting applications to Canadian visa posts in India, and at the start of 2020 there were numerous Federal Court of Canada decisions involving refusals of open spousal work permit applications because of concerns over the genuineness of marriages. Many applicants were also barred from entering Canada for five years due to misrepresentation.
Eligibility for Open Spousal Work Permits
According to the Temporary Foreign Worker Guidelines, a dependent spouse or common-law partner is eligible to apply for an open work permit if the principal applicant:
- holds a work permit that is valid for a period of at least 6 months, or, if working in a work permit exempt position presents evidence that they will be working for a minimum of 6 months;
- is employed in an occupation that falls within National Occupational Classification (NOC) skill type 0 (management occupations) or skill level A or B; and
- physically resides or plans to physically reside in Canada while working.
The principal foreign worker may be employed part-time for the spouse or common-law partner to qualify. Although there is not a standard minimum of hours required, officers have to be satisfied the foreign worker’s employment will be sufficient to financially support themselves and their family members while they are in Canada.
As discussed below, the increase in misrepresentation findings in open spousal work permit applications has been a deliberate Immigration, Refugees and Citizenship Canada (“IRCC”) policy choice.Read more ›
Canada’s Department of Employment and Social Development Canada (“ESDC“) administers the Temporary Foreign Worker Program (the “TFWP“). This is the program through which employers can obtain Labour Market Impact Assessments (“LMIAs“).
The following is a partial reproduction of the TFWP Manual (an internal document) regarding who the employer is for the purpose of administering the TFWP.
Who is the Employer
ESDC policy states that an employer is an entity (e.g. person, business, corporation or organization) that makes an offer of employment to one or more foreign nationals who provide labour in return for compensation for a specified period of time. The employer is generally the entity that hires, controls working condititions and remunerates the foreign national.
For the purpose of the Temporary Foreign Worker Program, charachteristics of the relationship, such as control and remuneration, including statutory benefits (e.g. CPP and EI) will be reviewed to determine when an employer – employee relationship exists. The total relationship will be examined and assessed, bearing in mind that no one factor is determinative and there is an extensive list of factors that may be examined.
In cases where two or more entities are determined to share employer responsibilities by the Department, a group of employers may make an offer of employment to a foreign national. The roles and responsibilities of each party must be clear and defined at the time of application.
For the purpose of the Temporary Foreign Worker Program, in cases where a self-employed individual wishes to enter Canada to establish or purchase a business and be involved in its day-to-day operations, the business plan or contract to purchases shares in a business should be evaluated as the job offer. Ownership of shares does not guarantee that a foreign national would qualify as an owner-operator.Read more ›
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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