Section 207.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) states that (modified for ease of reading):
207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they
(a) hold a work permit; or
(b) previously held a work permit, have applied for a renewal of that permit and are authorized to work in Canada under implied status.
Family member of vulnerable worker
(2) A work permit may be issued to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).
In other words, temporary foreign workers in Canada who are experiencing, or have experienced abuse, can apply for open work permits. People who have engaged in unauthorized work or have not complied with employment conditions are not excluded from the program.
The objectives of IRPR r. 207.1 are to:
- provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer;
- mitigate the risk of migrant workers in Canada who are leaving their job and working irregularly (that is, without authorization) as a result of abusive situations
- facilitate the participation of migrant workers who are experiencing abuse, or who are at risk of abuse, in any relevant inspection of their former employer, recruiter or both; and
- help migrant workers in assisting authorities, if required (noting that this is not required for the issuance of the open work permit),
Section 9.4 of Annex B of the Canada – British Columbia Immigration Agreement 2015 provides that “if Canada or B.C. determines that there is a real and substantial risk to a foreign worker as a result of an employer not complying with federal or provincial laws, Canada and B.C. will jointly undertake actions to mitigate such risk, including, where appropriate, issuing a new Labour Market Impact Assessment (“LMIA”) through the priority Labour Market Impact Assessment process, or issuing a new work permit without the need for an LMIA provided that the Foreign Worker meets all other requirements of the Immigration and Refugee Protection Regulations (the “IRPR”).
On May 4, 2018 the Government of Canada announced how it will apply the LMIA exemption to foreign workers who are at risk as a result of potential employer non-compliance in British Columbia. The policy will be in force until April 7, 2020. The measures are available to all foreign nationals in B.C. who hold an employer-specific work permit for an employer located in B.C. or who are authorized to work without a work permit.
Under the policy, visa officers may consider issuing a work permit if they have reason to suspect potential employer non-compliance with provincial laws or reason to suspect potential employer non-compliance with federal laws.
According to the IRCC website, examples of employer non-compliance with a provincial law may include but are not limited to the following:
- employer non-compliance with the Employment Standards Act by charging job placement and recruitment fees or by repeatedly not paying wages owed to the foreign worker; and
- employer violation of the Occupation Health and Safety Regulations whereby the employer is failing to provide a safe work environment, which creates undue hazards to the health and safety of the foreign worker or fails to correct unsafe working conditions.
I recently received a call from a French citizen who was frustrated because they were continuously unsuccessful in the Young Professionals lottery. There was no need for them to be in the lottery, as they would have qualified for Mobilité francophone.
As previously explained on my blog here, IRCC has a work permit program specifically designed for Francophones who want to work in a skilled position outside of Quebec. As the Young Professionals Program requires a skilled offer of employment, as long as the French person had a job offer outside of Quebec they would qualify for Mobilité francophone.
Here are three basic things to note about Mobilite Francophone.
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.
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.
Does a rodeo announcer require a work permit and a Labour Market Impact Assessment to give background information on radio contestants during a rodeo? The answer is.. it depends.
Section 186(m) 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
(m) as a judge, referee or similar official at an international amateur sports competition, an international cultural or artistic event or competition or an animal or agricultural competition;
Amateur Sports Competitions and Events
The Citizenship and Immigration Canada (“CIC“) website states that for judges, referees and similar officials involved in an international amateur sports competition, the event should be organized by an international amateur sporting association and should be hosted by a Canadian organization. The distinction between “organizing” and “hosting” becomes important, and supporting documents needs to reflect this.
The CIC website further states that events may include international or university games, winter or summer Olympics, etc., and that an “amateur” sports competition is generally defined as one in which the participating athletes are not paid to compete or otherwise participate in the event. The CIC website notes that there are exceptions to this, as of course in recent decades the line between “professional” sporting events and “amateur” sporting events has become blurred.
Cultural or Artistic Competitions and Events
The CIC website states that judges or adjudicators of artistic or cultural events such as music and dance festivals are included in IRPR r. 186(m), as are judges for animal shows and agricultural competitions.
So what about the rodeo announcer? The following is what CIC’s rationale in the approval of an application under this exemption was based on the facts provided to them.Read more ›
Last updated on July 22nd, 2018
I was recently asked whether an opera singer working in Canada for three months requires a work permit and a Labour Market Impact Assessment. The answer is.. it depends.
Section 186(g) 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
(g) as a performing artist appearing alone or in a group in an artistic performance — other than a performance that is primarily for a film production or a television or radio broadcast — or as a member of the staff of such a performing artist or group who is integral to the artistic performance, if
(i) they are part of a foreign production or group, or are a guest artist in a Canadian production or group, performing a time-limited engagement, and
(ii) they are not in an employment relationship with the organization or business in Canada that is contracting for their services.
No Work Permit Required
Examples of performing artists who do not need a work permit to work in Canada include:
- Foreign-based musical and theatrical individuals and groups and their essential crew;
- street performers (buskers), DJs;
- a foreign or traveling circus;
- guest artists (not employed) within a Canadian performance group for a time-limited engagement;
- wrestlers from the World Wrestling Entertainment, Inc. (WWE) (and similar groups);
- persons performing at a private event for a time-limited engagement, such as a wedding;
- air show performers;
- artists working at or attending a showcase or workshop;
Last updated on April 16th, 2020
Canada’s Post-Graduate Work Permit (“PGWP”) program allows international students who have completed certain Canadian post-secondary programs to obtain work permits after graduating. The work permits are open, meaning that the graduates can work for any employer(s) in any Canadian province(s). It is a fantastic program that enhances the competitiveness of Canadian post-secondary institutions internationally, and is normally an essential transitory step for international graduates looking to eventually obtain Canadian permanent residency.
However, every year there are many international students who mistakenly think that they will be eligible to participate in the program after graduating only to discover midway through their studies that they cannot. It is accordingly very important that all international students in Canada understand how the PGWP program works.
Basis in Law
Section 205 of Canada’s Immigration and Refugee Protection Regulations provides the government with the authority to create programs to issue work permits to foreign nationals when it is satisfied that public policy objectives relating to the competiveness of Canada’s economy or academic institutions are met. The PGWP is one of these programs, and detailed information about it can be found on the Immigration, Refugees and Citizenship Canada (“IRCC“) website here.
As the Federal Court has noted in numerous decisions (such as Osahar v. Canada), immigration officers can determine these requirements to be binding.
Eligibility and Validity
Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:
- have a valid study permit when applying for their PGWP;
- have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
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.Read more ›