Canadian Immigration – Temporary
Effective March 15, 2016, all visa-exempt foreign nationals who fly to or transit through Canada by air have needed an Electronic Travel Authorization (eTA). Exceptions include U.S. citizens and travelers with valid visas. Anyone who is issued a Work Permit or Study Permit will automatically have an eTA assigned along with the status document. To apply for an eTA, one can do so here: http://www.cic.gc.ca/english/visit/eta-start.asp. Note that one cannot apply for an eTA if one is a Canadian citizen or a dual Canadian citizen, a Canadian permanent resident, or a U.S. citizen. Lawful permanent residents of the U.S. will need an eTA if travelling to Canada by air. Note also that an eTA is not needed for those who may qualify for the Transit without Visa (TWOV) program. Also note that an eTA is not required for entries into Canada by land or sea. The eTA is electronically linked to one’s passport and is valid for five years or until one’s passport expires, whichever comes first.
We have in excess of two decades of professional experience assisting clients in gaining temporary entry to Canada. Foreign workers can accept employment in Canada and be issued Work Permits under a number of different categories, some of which require an employer to first apply for and obtain a Labour Market Impact Assessment (LMIA), formerly known as a Labour Market Opinion (LMO), and others of which are LMIA-exempt.
All employers seeking to employ foreign workers in LMIA-exempt positions must file in advance on its Employer Portal account with Immigration, Refugees & Citizenship Canada (IRCC) an Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA) and pay a $230 Employer Compliance Fee. Failure to pay this fee in advance of the foreign worker applying for a work permit will result in a refusal of the application. The stated purpose of this fee is to offset the cost of gathering employer and job offer information for possible use in future compliance-related investigations.
Genuineness of Offer of Employment
Specific factors exist against which the genuineness of an employer’s offer of employment is assessed in both Labour Market Impact Assessment (LMIA) cases and in LMIA-exempt cases. These factors include: (i) whether the offer is made by an employer that is actively engaged in the business in respect to which the offer is made; (ii) whether the offer is consistent with reasonable employment needs of the employer; (iii) whether the terms of the offer are terms that the employer is reasonably able to fulfill; and (iv) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.
Ban on Employers Who Fail to Substantially Comply with Prior LMIA
Employer may not seek issuance of a Work Permit to a foreign national if, in the two year period preceding the filing of an LMIA request or, in the case of an LMIA-exempt situation, the date of application to the Canadian immigration authorities, that employer failed to provide each of its foreign workers with wages, working conditions, and employment in an occupation that were substantially the same as the wages, working conditions, and occupation set out in the employer’s offer of employment. This look back period is six years. Where the failure can be justified, an exemption from this provision may be available. Exemptions may granted in situations including: (a) changes in federal or provincial law; (b) changes to the provisions of a collective agreement; (c) errors in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; (d) unintentional accounting or administrative errors made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or (e) circumstances similar to those set out above. The Canadian immigration authorities are required to maintain on the CIC website a list of all banned employers stating the names and addresses of each employer and the date that the determination was made.
CUSMA (NAFTA)
Under the Canada-US-Mexico Agreement (formerly, the North America Free Trade Agreement, professionals of American or Mexican citizenship are eligible to apply for three-year renewable Work Permits for employment in Canada. Americans and Mexicans, being entry-visa exempt, may apply for and receive NAFTA Work Permits upon arrival at a Canadian port of entry (i.e. airport or land border crossing). Some eligible professions include:
- Management Consultants
- Biologists and Related Scientists
- University/College Professors
- Physicians (teaching and research only)
- Lawyers
- Geologists, Biologists, Engineers, and other Science Professionals
- Computer Systems Analysts
- Scientific Technicians and Technologists
- Accountants
To be eligible for this form of work authorization, the applicant must generally have a university-level education in a related field and have a job offer in Canada. Management Consultants may qualify with five years of related experience in lieu of a university degree. Scientific Technicians and Technologists may qualify with sufficient theoretical knowledge and practical problem-solving ability.
Canada also has similar but not identical Free Trade Agreements in place with the European Union, Chile, Peru, Colombia, Costa Rica, South Korea, Australia and Japan.
INTRA-COMPANY TRANSFERS
Work Permits are available to employees who are to be intra-corporately transferred to Canada from a foreign affiliate, parent or subsidiary of their Canadian employer. Such individuals must have been employed abroad on a full-time basis for at least one continuous year in the past three (although they need not be currently so employed). Eligible employees include high-level executives, departmental directors, partners, upper management personnel and functional managers. Other intra-company transfers include those who have specialized knowledge of their employer’s business process, methodologies and products and their applications in international markets.
Such Work Permits are issued for an initial duration of three years with two further two-year extensions available to executives and managers and one further two-year extension available to specialized knowledge personnel. It should be noted that, where the Canadian enterprise is a start-up, the duration of the initial permit is restricted to one year to start.
RECIPROCITY
A Canadian employer who is able to demonstrate that it creates employment opportunities for Canadians abroad may be able to secure authorization to employ foreign nationals based on ‘reciprocity.’ It is important to be able to show the reciprocal exchange of employees is institutionalized and ongoing in the company.
SPOUSES/COMMON-LAW PARTNERS
Spouses and common-law partners of foreign nationals holding Work Permit may themselves secure “open” Work Permits authorizing employment with any employer of their choosing for the duration of the principal worker’s authorized stay in Canada. It should be noted that, for employment in certain fields (teaching, childcare, healthcare), a medical clearance is required.
LABOUR MARKET IMPACT ASSESSMENTS (LMIA)
For occupations that do not qualify for any exemptions, a positive Labour Market Impact Assessment (LMIA) must be obtained from Service Canada prior to an application for a Work Permit being made. Our office frequently works with clients on these matters and draws upon over its many years of experience in devising successful strategies for obtaining positive Labour Market Impact Assessments from Service Canada. We will work with you to put together an application package which is unique to your individual needs, and which ensures that your company will meet the requirements stipulated by Citizenship and Immigration Canada and Service Canada for hiring a foreign worker.LMIAs may be issued where it can be shown that a Canadian employer has tried unsuccessfully to recruit a suitably-qualified Canadian citizen or Permanent Resident for the position in question; that the foreign national will transfer knowledge and/or skills to existing Canadian personnel; or that the foreign nationals employment in Canada will result in job creation or job retention for Canadians. It is also necessary to demonstrate that the foreign worker will be paid a competitive wage.
Processing requirements for LMIA filings delineate between whether the position is for a high-wage (i.e. those being offered more than the provincial median hourly wage) or low-wage position. Previously, the distinction was between high-skilled (i.e. NOC 0, A or B) occupations and low-skilled (i.e. NOC C or D) occupations.
It is a general requirement that specific recruitment activity be conducted to demonstrate the absence of any suitably-qualified Canadians. Variations to these minimum requirements do exist in specific circumstances and include scenarios involving, for example, LMIAs for Owner/Operators, Warranty Work and Specialized Service Technicians/Service Providers, among others. In essence, standard requirements mandate that:
- a) Advertising must run for 4 weeks.
(b) A mandatory posting on Service Canada’s Job Bank (jobbank.gc.ca) now mandatory for all positions.
(c) Postings in 2 additional locations, one of which must be national in scope.
(d) Job Bank advertising must continue to run while LMIA application is in process with Service Canada.
(e) Advertising must include, among other things, the: - Company operating name
- Company name
iii. Business address.
- Title of position.
- Wage or wage range.
- Details on how to apply
Prospective employers of high-wage temporary foreign workers must complete a Schedule C – Transition Plan and be able to demonstrate the existence of firm plans to transition to a more Canadianized work force. The requirements of such plans include a need to commit to engaging in “at least three activities to recruit, retain and/or train Canadians/permanent residents in the occupation specified on the application; and one additional distinct activity to engage an organization serving under-represented groups to identify potential candidates for recruitment or training”. Instead of these requirements, employers can also “choose to do only one activity which facilitates the permanent residency of a TFW (e.g. making a permanent job offer or offer language training to the foreign worker to support the individual’s permanent resident visa application.” Important to note is that, for future LMIA filings for the same occupations, these Transition Plans will be carefully scrutinized to assess whether the transitional activities have resulted in a reduction in the ratio of foreign workers to Canadians in the employer’s workforce. If not, Service Canada will expect employers to commit to a new range of transitional activities or may even deny future LMIA requests for such positions.
Employers of TFWs who are providing services under a contract (e.g. management and IT consultants) are now required to complete a Schedule B – Impact on the Canadian Labour Market to help Service Canada determine whether things like offshoring and outsourcing of work will have an adverse impact on the Canadian labour market.
Nationals of certain countries must apply to a Canadian visa post abroad for a Temporary Resident Visa (TRV) before presenting themselves at a port of entry. Such is required whether one is seeking entry to Canada as a worker, student or as a visitor. This form of entry document is used for temporary stays in Canada and is issued for either single, or multiple entries. A list of countries and territories whose citizens require TRVs to enter Canada can be found at: http://www.cic.gc.ca/english/visit/visas.asp. It is noteworthy that Lawful Permanent Residents of the United States do not require TRVs for Canada regardless of country of citizenship.
Those visitors to Canada who will not be seeking entry to the Canadian labour market may seek entry to Canada as business visitors. Factors such as whether one’s intended activity is international in focus and whether one will be remunerated for his or her services while in Canada will be relevant. Business visitors might include those coming for:
- Job interviews
- Meetings with Canadian clients
- Conferences and business trips
- After-sales Service
- Speaking engagements
- The provision or receipt of intra-company training
- Independent research
Application processes will vary depending on an individual’s country of citizenship and/or residence. In some cases, applications for temporary entry may be made upon arrival at a Port of Entry (an international airport or land border crossing). In other cases, where a Temporary Resident Visa (TRV) or medical clearance is required, applications for temporary entry to Canada must be filed – sometimes several weeks or months in advance – with a Canadian Consulate, High Commission or Embassy abroad. Filings are more commonly done online or, in the case of offshore filings, via a Visa Application Centre (VAC). Our office is well experienced with all forms of temporary entry to Canada.
Students who have been accepted into a course of study in Canada, can demonstrate an ability to pay international student fees and support themselves while in Canada, may qualify for Study Permits. Only in very limited circumstances (e.g. American citizens and green card holders), may such permits be issued at a port of entry. Following graduation, such students may be eligible for post-graduate Work Permits.
For those who are inadmissible to Canada, for example, on grounds of medical or criminal inadmissibility, a Temporary Resident Permit (TRP) may be necessary in order to gain entry to Canada. While such permits can be issued at a port of entry at an officer’s discretion, the general expectation is that they be applied for in advance through a visa post outside of Canada. Applicants for TRPs must demonstrate that they have a legitimate basis for wishing to enter Canada and, in the case of the criminally inadmissible, for example, that they have achieved some level of rehabilitation.
