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.
Work Permits and Permanent Residence Options for Hong Kong Nationals
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. Work Permits 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 10 years before theyapply 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; a diploma for a minimum 2-year program from a designated post-secondary learning institution in Canada or an institution abroad; or a graduate or post-graduate credential from a program of at least 1 year that required the completion of a post-secondary degree or diploma, as a prerequisite for acceptance into … Read More
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
Asking the Embassy to Re-Consider an Application
Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
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
Ability to Perform the Work Sought
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. Procedural Fairness 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 … 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