Free trade agreements help those who want to work in Canada, but the Trump presidency could impact Americans

12th Nov 2016 Comments Off on Free trade agreements help those who want to work in Canada, but the Trump presidency could impact Americans

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,

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Intra-Company Transferees and Start-Ups

8th Jan 2016 Comments Off on Intra-Company Transferees and Start-Ups

Last updated on September 16th, 2020

Immigration Refugees and Citizenship Canada’s (“IRCC“) International Mobility Program provides that a foreign worker may be issued a work permit without the employer needing a Labour Market Impact Assessment if the employee meets the requirements of the Intra-Company Transferees (“ICT“) program.

Although some free trade agreements contain specific requirements, the general ICT rules applicable to citizens of all countries are that ICTs must:

  • be currently employed by a multi-national company and be seeking entry to work in a parent, a subsidiary, a branch, or an affiliate of that enterprise;
  • be transferring to an enterprise that has a qualifying relationship with the enterprise in which they are currently employed, and will be undertaking employment at a legitimate and continuing establishment of that company (where 18–24 months can be used as a reasonable minimum guideline);
  • be being transferred to a position in an executive, senior managerial, or specialized knowledge capacity;
  • have been employed continuously (via payroll or by contract directly with the company), by the company that plans to transfer them outside Canada in a similar full-time position (not accumulated part-time) for at least one year in the three-year period immediately preceding the date of initial application; and
  • be coming to Canada for a temporary period only.

Applicants who have not had full-time work experience with the foreign company may still be approved based on an assessment of several factors, including the number of years of work experience with the foreign company, the similarity of the positions, the extent of any part-time positions with the foreign company, and, most importantly, whether there appears to be an abuse of the ICT provisions.

Start-Ups

There are additional requirements for multi-national corporations seeking to establish operations in Canada.  

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Increased Fees and Compliance in the International Mobility Program

11th Feb 2015 Comments Off on Increased Fees and Compliance in the International Mobility Program

On February 11, 2015, the Government of Canada publicized amendments to the Immigration and Refugee Protection Regulations that affected most applicants in the International Mobility Program (the “IMP“).

The IMP includes all streams of work permit applications that are exempt from the Labour Market Impact Assessment (“LMIA“) process, including workers covered by free trade agreements, people participating in exchange programs like International Experience Canada (“IEC“), provincial nominees, intra-company transferees, post-graduate work permit holders, etc.

In reviewing the changes described below, it is important to understand the distinction between a closed work permit and an open work permit. A closed work permit limits a foreign worker to a particular employer. An open work permit allows the foreign worker to work for any employer.

  • The changes consist of:
    • Requiring that employers of prospective closed work permit holders in the IMP provide information to Citizenship and Immigration Canada (“CIC“) before their prospective employees apply for work permits;
    • Requiring that employers of prospective closed work permit holders pay a $230.00 “employer compliance fee” per employee before their prospective employees apply for work permits; and
    • Introducing a new $100.00 “privilege fee” on open work permit applicants.

The Government of Canada has announced that the above changes will all take effect on February 21, 2015.

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Intra-Company Transfers – Specialized Knowledge

10th Jun 2014 Comments Off on Intra-Company Transfers – Specialized Knowledge

Last updated on September 5th, 2019

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 proprietary knowledge would require an applicant to demonstrate:

    • uncommon knowledge of the host firm’s products or services and its application in international markets; or
    • an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research, equipment, techniques or management.

An advanced level of expertise requires specialized knowledge gained through significant and recent (defined as within the last 5 years) experience with the organization and used by the individual to contribute significantly to the employer’s productivity.

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Questions & Answers – Arranged Employment

16th Sep 2013 Comments Off on Questions & Answers – Arranged Employment

Last updated on February 13th, 2019

The following are two e-mail exchanges between immigration representative and Immigration, Refugees and Citizenship Canada (“IRCC”) regarding arranged employment.  The Federal Skilled Worker Program allows certain individuals employed in Canada without a Labour Market Opinion to qualify for Arranged Employment.  As well, Arranged Employment can result in betwee.

Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 28, 2013

Hello,

Could you please confirm if the intra-company work permit holders in Canada can be considered to have arranged employment under the new rules (as of May 4th 2013) and could submit a FSW application based on the fact they hold ICT work permit and have an indeterminate job offer from the same employer.

Answer – May 28, 2013

Intra-company transferees in Canada who hold a valid work permit which is exempt from the Labour Market Opinion (LMO) requirement under R204(a), are working for an employer specified on the work permit and have a qualifying offer of arranged employment from the same employer are eligible to apply under the arranged employment stream under the Federal Skilled Worker Program under the new rules which came into effect on May 4, 2013 [R82(2)(b)].

All other intra-company transferees who hold a valid work permit which is LMO-exempt under R205 would also be eligible to apply provided they had a qualifying offer of arranged employment from their prospective employer, and that employer had obtained a positive LMO [R82(2)(d)].

The second questions are:

Candidate on an open work permit for a Canadian employer in a NOC 0,

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