All employers of temporary foreign workers in Canada need to understand how the employer compliance regime works. Both Immigration, Refugees and Citizenship Canada (“IRCC”) as well as the Department of Employment and Social Development (“ESDC”) regularly audit and inspect the employers of foreign workers to make sure that they are complying with the Temporary Foreign Worker Program and/or the International Mobility Program (which are the two main programs through which foreign nationals can work in Canada). Both ESDC and IRCC have indicated that about 25% of employers can expect an inspection in any given year. Most of these inspections and audits start with the employer receiving a letter from the Government of Canada informing them that they will be examined on a multitude of factors, including whether they have employed the foreign national in the job that they were supposed to, whether they paid the wages that they were supposed to, whether the employer complied with laws regulating employment, whether they maintained records and whether they took reasonable efforts to provide a workplace that was free of abuse. I have embedded below the standard employer compliance letter that is sent out at the start of an audit. Consequences of Non-Compliance Here … Read More
C-20 Work Permits
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 … Read More
Self-Employed Class – What is Self Employment
To qualify for the Self-Employed Class in Canada, applicants must demonstrate at least two years of relevant experience in cultural activities, athletics, or farm management (for applications submitted before March 10, 2018). This experience must fall within the five-year period prior to the application date and extend until a final decision is made on the application for permanent residency. Eligible experience includes either two one-year periods of self-employment in cultural activities, two one-year periods of participation at a world-class level in cultural activities, or a combination of both. Similarly, for athletics, the required experience can be met by either two one-year periods of self-employment in athletics, two one-year periods of participation at a world-class level in athletics, or a combination of both. What is Self-Employment? The Self-Employed Class section of the Immigration, Refugees and Citizenship Canada (“IRCC“) 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 … Read More
C-11 Work Permits
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 … Read More
Open Spousal Work Permits
In a previous blog post I wrote about how Immigration, Refugees and Citizenship Canada (“IRCC”) was increasingly focusing on genuineness in open spousal work permits. On September 27, 2021 IRCC updated its webpage to reform the open spousal work permit program.
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. … Read More
Flagpoling
“Flagpoling,” also known as “sidedooring,” are terms which describe the process of individuals who are inside Canada travelling briefly to the United States and then upon re-entry to Canada submitting an application at a Canadian port of entry (“POE“). For most individuals who are eligible to flag-pole it is the preferred method to obtain study permits, work permits, and to have their Confirmations of Permanent Residence signed. The reason is because it typically takes a Canada Border Services Agency (“CBSA“) officer less than 30 minutes to process an application, whereas it can take Immigration, Refugees and Citizenship Canada (“IRCC“) weeks or months to either process an application or schedule a landing interview. Who Can Flag-Pole (Work Permits) In the work permit context, regulation 198 of the Immigration and Refugee Protection Regulations (“IRPR”) provides that: (1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa. Exceptions (2) A foreign national may not apply for a work permit when entering Canada if (a) a determination under section 203 is required, unless (i) the Department of Employment and … Read More
Options to Restore 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 … Read More
Where Should You Apply for a Work Permit
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 … Read More
LMIA Exemption for Francophones
Immigration, Refugees and Citizenship Canada (“IRCC“) has a program to facilitate the ability of francophone foreign workers to enter Canada. The benefit of the program, called Moibilte Francophone, is that no Labour Market Impact Assessment (“LMIA“) is required. This means that employers of prospective francophone foreign workers do not need to pass a labour market test in order to employ francophone foreign workers. 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. Here are some other key things to note about the program. 1. Recruitment through a francophone immigration promotional event coordinated between the federal government and francophone minority communities is no longer required. Previously, participation in Moibilte Francophone was restricted to prospective foreign workers recruited through government promotional events. This requirement, which the government interpreted incredibly broadly in any event, is no longer the case. Previously, the program worked as follows: 2. Habitual French speaking abilities are required, but not for the job. To approve the work permit application officers must be satisfied … Read More