Canada’s Immigration and Refugee Protection Regulations (the “IRPR“) states that a work permit application must be refused if an officer determines that the offer of employment is not genuine.
Section 200(5) of the IRPR states that in order to determine whether an offer of employment is genuine an officer should consider (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, (b) whether the offer is consistent with the reasonable needs of the employer, (c) whether the terms of the offer are terms that the employer is reasonably able to fulfill, and (d) the past compliance of the employer with federal or provincial laws that regulate employment.
Immigration, Refugee and Citizenship Canada’s (“IRCC“) guidelines contain extensive instructions to officers on assessing the genuineness of the offer of employment on a work permit application.
In order to demonstrate that an employer is actively engaged in the business an employer must do all of the following:
- have an operating business;
- provide either a good or a service; and
- have a physical work location in Canada where the temporary worker will work.
The following are some red flags that can trigger an in-depth assessment of whether a company is actively engaged in the business.
- the business information in the offer of employment raises concerns with respect to the organization’s active engagement in a business (such as being less than 1 year old);
- there is negative publicly available information regarding the organization; and
- previous work permit applications were refused because officers had concerns about whether an employer was actively engaged in the business.
On February 6, 2018 Immigration, Refugees and Citizenship Canada (“IRCC”) clarified how its short term work permit exemption under the Global Skills Strategy would work. Previously, the IRCC website simply stated:
Now, the IRCC website provides a much more comprehensive explanation of how the short term work permit exemption under the Global Skills strategy works.
The short-term (15 or 30 days) work permit exemptions are for certain high-skilled work and apply to foreign nationals coming to Canada to perform work that is both of a short duration (15 consecutive calendar days or 30 consecutive calendar days) and is in an occupation that is listed in skill type 0 (management occupations) or skill level A in the National Occupational Classification (“NOC”) matrix.
Such individuals may work in Canada without a work permit.
The periods can be as follows:
- 15 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 6 months); or
- 30 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 12 months).
The short-term work permit exemptions do not exempt people from the requirement to obtain a temporary resident visa or an electronic travel authorization, if applicable.
Entering and Exiting Canada
While foreign nationals are allowed to exit and re-enter Canada within the prescribed time frame (15 or 30 consecutive days) of work under the exemption, the authorized work period begins on the date the exemption is granted and is counted consecutively,Read more ›
Immigration, Refugees and Citizenship Canada has a Labour Market Impact Assessment (“LMIA“) exemption for post-doctoral fellows awarded a Doctorate of Philosophy and research award recipients. The advantage of such an exemption is that a person can obtain a work permit without the need of the prospective employer to first test the Canadian labour market.
Post-doctoral fellows holding a Ph.D. or its equivalent
To qualify for a work permit under this LMIA exemption, the prospective foreign worker must:
- have completed, or be expecting to complete shortly, their doctorate;
- be working in a field related to that in which they earned, or are earning, their Ph.D.;
- be the direct recipient of the award involving work and remuneration;
- actively contribute to and benefit a Canadian research project;
- demonstrate academic excellence or expertise in a field related to the particular work to be undertaken;
- be working in a time-limited position that reflects the experience and expertise of the applicant and the role that they will play on the project;
- have a significant role to play or value to add to the research project.
- hold an official position or an affiliation or registration with a credible academic or educational institution or agency in their country of citizenship or residence.
The post-doctoral fellows can either be the direct recipients of theaward or be offered a time-limited position to undertake research on behalf of or as part of a team of researchers.
In order for a person to receive a work permit based on an award, the prospective foreign worker must have received an award that was:
- given based on merit and academic excellence;
- based on the result of a competitive assessment and review process.
As of March 1, 2017, camp counsellors going to residential camps during the summer season are exempt from the Labour Market Impact Assessment (“LMIA“) requirement. They can apply for work permits once their employers submit their online offers of employment into the employer compliance portal.
Religious Camp Counsellors
Religious camp counsellors should note that they should not be indicating in their online offer of employment offers that the LMIA exemption code is religious or charitable work under LMIA exemption code C50. Immigration, Refugees and Citizenship Canada (“IRCC”) has determined that the normal work of a camp counsellor (whose primary duties consist of supervising children and leading sports, crafts, games and other recreational activities) is not considered religious in nature. Rather, LMIA exemption code C20 should be used.
In the case of a counsellor who is unpaid and who works for a charitable or religious organization, an employer compliance fee fee exemption may apply. To be fee-exempt, the foreign national cannot receive remuneration other than a stipend for living expenses, which, if monetary, should be below the prevailing minimum wage. Otherwise, the foreign national should receive only non-monetary benefits (e.g., accommodation and health care). It is the responsibility of the organization to prove that they are charitable or religious.
More information about this can be found here.Read more ›
The following are some interesting stats on the number of foreign workers in Canada from 2004 – 2014.
The first chart is for the number of foreign workers in the Temporary Foreign Worker Program from 2004 – 2014. The top four countries where the Philippines, India, the United States of America, and Mexico.
In the International Mobility Program the top 5 countries are very different. There, it is the United States of America, India, China, and France.
The data also shows that from 2004 – 2014 the number of temporary foreign workers in Canada more than doubled from 86,551 to 177,704. Almost all of this growth was in the Labour Market Impact Assessment Program, with most of it being lower-skilled foreign workers.
There was also considerable growth in the International Mobility Program, with the number of work permit holders going from 110,525 to 390,273 during the period from 2004 – 2014. Much of the growth came from the introduction of the Post-Graduate Work Permit Program, International Experience Canada, and C-10 applications.
Read more ›
Canada’s Temporary Foreign Worker Program (the “TFWP“) allows employers to bring foreign workers to Canada to temporarily fill jobs for which qualified Canadians are not available. After the program became increasingly controversial in 2012-13, the Department of Employment and Social Development Canada (“ESDC“) on June 20, 2014 imposed a cap limiting the proportion of low-wage foreign workers that businesses can employ.
How the Cap Works
Employers with a company-wide business size of 10 or more employees are subject to the cap. The cap percentage is determined for each individual worksite location and is based on paid positions and total hours worked at that worksite.
Employers that are new to the TFWP or returning employers who did not have any foreign workers on staff on June 20, 2014 are capped at 10% low-wage foreign workers for each work location.
The cap, implemented on June 20, 2014, was phased in to provide employers time to transition to a Canadian workforce which means that they are limited to a:
- 20 percent cap on the number of foreign workers in low-wage positions, or the employer’s established estimated cap (whichever is lower), if the employer hired a TFW in a low-wage position prior to June 20, 2014; or
- 10 percent cap on the number of foreign workers in low-wage positions if the employers did not employ a TFW in a low-wage position prior to June 20, 2014.
Effectively, companies are limited to a 10% cap on the proportion of low-wage foreign workers that they can have. The low-wage is based on a province’s median wage, which as of writing is as follows:
Wages prior to
May 3, 2018
2016 Wage ($/hour)
Wages as of
May 3,Read more ›
It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be.
Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP.
Breaches that Occurred Before December 1, 2015
It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same.
The Administrative Monetary Penalty Regime
Under IRCC’s AMP regime, employer non-compliance is divided into three types of violations.
Type A violations include where an employer:
- is unable to demonstrate that any information that it provided in respect of a foreign national’s work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
- did not retain document(s) that relates to employer compliance during a period of six years, beginning on the first day of the foreign national’s employment
- did not report at any time and place specified by IRCC to answer questions and provide documents during an IRCC inspection of the employer’s compliance with the IMP;
On Oct. 30, 2016, Canada and the European Union signed the Comprehensive Free Trade Agreement (CETA), which, amongst other things, will make it easier for European Union citizens to work in Canada without their employers first needing to obtain labour market impact assessments (LMIA).
CETA is only the latest free trade agreement that Canada has signed. One of the first steps that a foreign national who is interested in working in Canada should do is determine whether their home country has signed a free trade agreement with Canada. If so, they should check if the agreement encompasses their specific area of employment.
LMIA vs. free trade agreements
The main benefit of a free trade agreement encompassing one’s employment is that the person’s potential Canadian employer does not need to first obtain a positive or neutral LMIA prior to the foreign worker being able to obtain a Canadian work permit.
LMIAs can be a very cumbersome process. They generally require that an employer conduct domestic recruitment, meet prevailing wage requirements, complete numerous application forms, enter into a transition plan, and pay a $1,000 per foreign worker application fee. For many employers, obtaining LMIAs is simply too great an obstacle to employing foreign nationals in Canada.
It is much easier for employers to employ workers who are encompassed by free trade agreements. Employers must simply enter information about the proposed job offer into the Immigration, Refugees and Citizenship Canada website, pay a $230 employer compliance fee and provide a written job offer to the prospective employee.
Free trade agreements
As of writing, Canada has free trade agreements that contain immigration provisions in force with the United States, Mexico, Chile, Peru, Colombia and South Korea.
The North American Free Trade Agreement (NAFTA) is a free trade agreement between the United States,Read more ›
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 Canada and re-entering is simply too risky or too expensive if they do not have a US visa. Luckily, Canada’s Immigration and Refugee Protection Regulations provide that if a visitor, worker, or student loses their status in Canada, then they can apply to restore their status if they do so within 90 days of their status expiring.
Restoration applications must be submitted either online or by mail to IRCC. Restoration applications cannot be submitted while entering Canada at a Canadian port of entry.
It is vital that foreign nationals submit their restoration applications within the 90 day period after their temporary resident status expires.Read more ›
On February 3, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”, previously “CIC”) introduced new Labour Market Impact Assessment (“LMIA“) exemptions, and expanded the Business Visitors category for certain foreign nationals so that they may work in Canada without a work permit.
The specific changes are:
- the introduction of a LMIA exemption for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents;
- the introduction of a LMIA exemption to prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations; and
- that foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may now be considered as Business Visitors.
The LMIA exemptions described above take affect on February 17, 2016. The expansion to the Business Visitor category is effective immediately.
Significant Benefit Guidelines
As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents.
The IRCC website notes that such positions are typically unionized and pay above the provincial median wage for all occupations.
Applicants are advised to provide both a letter of support from the production as well as a letter from the relevant union or guild.
Work permits will be valid for the duration of the intended employment,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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