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 … Read More
LMIAs – The Skills Transfer Factor
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 … Read More
Open Spousal Work Permits and Marriage Genuineness
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 … Read More
ESDC – Determining Who the Employer Is
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 … Read More
Bridging Open Work Permits
Immigration, Refugees and Citizenship Canada’s (“IRCC”) International Mobility Program has a bridging open work permit program for temporary foreign workers currently working in Canada who have submitted permanent residence applications under the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Provincial Nominee Program (“PNP“), or the Federal Skilled Trades Program (“FSTP“). Bridging open work permits are a huge and positive development for Canadian employers with employees who have filed permanent residence applications under one of Canada’s economic programs. CIC’s introduction of bridging work permits removes a significant issue which many temporary foreign workers previously encountered, namely that they were unable to extend their work permits during CIC’s processing of their permanent resident applications without their employers first having to obtain positive Labour Market Impact Assessments, an uncertain process which often takes months. Eligibility Temporary foreign workers currently working in Canada are eligible to apply for a bridging work permit if they: are a foreign national in Canada; have valid status on a work permit that is due to expire within 4 months; be the principal applicant on an appliation for permanent residence under the FSWP, CEC, PNP or FSTC; received a positive eligibility decision on their permanent residence … Read More
Intra-Company Transfers – Specialized Knowledge
On June 9, 2014, Immigration, Refugees and Citizenship Canada published Operational Bulletin 575 – Expanded Guidelines for Officers Assessing Work Permit Applications for Intra-Company Transferees with Specialized Knowledge (“OB-575“). OB-575 introduced more stringent requirements to the Intra-Company Transferee – Specialized Knowledge program. Specifically, what constitutes “specialized knowledge” is more restrictive, and most ICT – Specialized Knowledge applicants must now meet the Prevailing Wage. Specialized Knowledge In order to qualify as an Intracompany Transeferee (“ICT“) – Specialized Knowledge applicantsmust demonstrate a high degree of both proprietary knowledge and advanced expertise. Specialized knowledge is unique and uncommon, and according to the Immigration, Refugees and Citizenship Canada (“IRCC“) website “it will by definition be held by only a small number or a small percentage of employees of a given firm,” and that “specialized knowledge workers must therefore demonstrate that they are key personnel, not simply high skilled.” The onus is on applicants to provide evidence that they meet these requirements. Proprietary knowledge is company-specific expertise related to a company’s product or service. It implies that the company has not divulged specifications that would allow other companies to duplicate the product or service. Although IRCC does not mandate that “advanced proprietary knowledge” is required, it states that: Advanced … Read More
Dance Instructors, Guest Speakers, and Working in Canada Without a Work Permit
Does a professional ballet teacher require a work permit and a Labour Market Impact Assessment to give a 4 day seminar in Vancouver? The answer is.. it depends. Section 186(j) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that: Work Without a Work Permit 186. A foreign national may work in Canada without a work permit (j) as a guest speaker for the sole purpose of making a speech or delivering a paper at a dinner, graduation, convention or similar function, or as a commercial speaker or seminar leader delivering a seminar that lasts no longer than five days; No Work Permit Required In accordance with IRPR 186(j), the Immigration, Refugees and Citizenship Canada (“IRCC“) website explicitly states that guest speakers for specific events, including as an academic speaker at a university or college function, and commercial speakers or seminar leaders, can enter Canada to work without a work permit provided the seminar to be given by the foreign speaker does not last longer than five days. IRCC defines a seminar as “a small class at a university, etc. for discussion and research, or a short intensive course of study, or a conference of specialists.” IRCC defines commercial speakers as “people who sell tickets or registrations … Read More
Labour Market Impact Assessments – Recruitment Requirements
Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents. The Department of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available. In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives. I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained. Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada. The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.
The Caring for Children Class, and the Caring for People with High Medical Needs Class
The Government of Canada has very quietly announced that it is closing the Caregiver programs described below on November 29, 2019. Applicants who did not start working as caregivers prior to that date will be unable to apply under these programs. [ORIGINAL POST] On November 28, 2014, the Government of Canada issued Ministerial Instructions completely overhauling Canada’s caregiver immigration programs. The changes consist of: Suspending the in-take of applications under the existing Live-in Caregiver Program; Establishing the Caring for Children Class; and Establishing the Caring for People with High Medical Needs Class. The above changes all take effect on November 30, 2014.
CBSA Work Permit Checklists in the Pacific Highway District
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.