Last updated on February 5th, 2019
A Canadian business is employing a foreign worker. They want to promote them or give them a raise. What could be wrong with that?
Quite a few things, as it turns out. There are certain immigration requirements that all employers and foreign worker employees should know before a promotion or raise.
Employer compliance in temporary worker program
For the employer, the risk of a promotion or raise is that it could run them afoul of the Temporary Foreign Worker Program and/or the International Mobility Program. Unless the foreign worker is on an open work permit that contains no restrictions of employment, all employers need to abide by the information that they provided to Immigration, Refugees and Citizenship Canada (IRCC) as part of the work permit process.
In cases where an employer has promoted the foreign worker or otherwise changed their duties, the foreign worker must receive a new work permit before the change is implemented. While the IRCC website specifically cites the examples of a manager being promoted to a director and a technician being promoted to an engineer, all promotions require a new work permit if the promotion results in the employee’s National Occupational Classification code changing.
Whether a raise will require a new work permit will depend on the work permit program used to hire the foreign worker. If the work permit was the result of a positive Labour Market Impact Assessment, then a raise will typically require a new LMIA, although there are ways around this. If the foreign worker was hired through an LMIA exemption, then an increase in wages will not result in the employer being non-compliant unless the new wage indicates a change in duties.
Promoting temporary workers and the impact on immigration
Promotions, and to a lesser degree raises, can also be problematic for foreign workers seeking to immigrate.
The first issue relates to the issues described above, which is that an employee who is working in contravention of their work permit (by working in a different position, for example) risks jeopardizing their status in Canada, and possible findings of non-compliance during the processing of a permanent residence application.
The second issue pertains to prospective provincial nominees. Many provincial nomination programs that are employment-based require that applicants have a certain number of years’ experience in the position that they are being nominated for before they apply.
The British Columbia Provincial Nomination Program’s Skilled Worker Program, for example, requires that applicants have several years of directly related experience in the position that they are being offered a permanent position in before they apply. Work experience that is related but at a lower level typically does not count.
The Ontario Immigrant Nominee Program’s Employers – Job Offer Stream contains a similar provision, in that applicants must have two years of work experience in the same NOC before they apply. Both programs effectively preclude people who have been recently promoted from applying.
What to do
The purpose of this post is not to dissuade employers from promoting their employees or offering them raises. Rather, it is to plan for them in advance, and ensure that immigration considerations are taken into consideration. Whether it is through the employee getting a new work permit, or starting the permanent residence process sooner than they may have thought, proper planning and foresight can ensure that climbing the career ladder doesn’t turn into an unfortunate game of immigration snakes and ladders.
As a follow-up summary to this post, I am including an exchange between an Immigration Representative and the Immigration Representative Portal, in which IRCC wrote:
Would submitting a new Offer of Employment IMM5802/Employer Compliance submission with the additional duties for the same employer and same NOC be sufficient to allow a foreign worker to take up the additional duties? The salary/remuneration may or may not increase due to the increase in duties and hours to be worked. Would the foreign
worker need to apply for a new work permit?
Providing additional duties, thereby increasing weekly hours, and a salary that is higher salary to the foreign worker than the salary indicated on the Offer of Employment submitted to IRCC after the work permit was issued would not require the foreign national to obtain a new work permit. Typically, a foreign worker does not need a new work permit
unless there has been a change to the conditions that affect the worker – Le. employer, occupation or location. Or, if the change in working conditions negatively impacts the worker, such a reduction in hours or salary, then a new Offer of Employment and a new work permit would be required before the change takes effect, otherwise the employer risks being found non-compliant with the original job offer submitted to IRCC.
The exchange goes on to note many other pointers, and I have reproduced the e-mail in its entirety below.EmpCompliance