Getting a foreign worker into Canada can be a bit like wandering through a bureaucratic minefield.
The Immigration and Refugee Protect Act and its regulations have been in effect since June 28, 2002, and provide more flexibility to hire foreign workers than previous immigration legislation.
But employers should plan carefully to avoid the pitfalls that plague the system, including understanding who can work in Canada and for how long, delays at visa processing posts overseas and compliance with Human Resources Skills Development Canada’s (HRSDC) requirements for obtaining labour market opinions.
Is it “work?”
The first thing employers look at is whether or not the foreign worker will be performing “work” as defined in the regulations. Work is defined as an activity for which wages or commission are earned, or which competes directly with Canadian citizens or permanent residents in the labour market.
If a foreign worker performs an activity that will result in receiving remuneration, she engages in “work.” This includes salary or wages, commissions, receipts for fulfilling a service contract or any other situation where foreign nationals receive payment for the performance of services.
Even if the foreign worker does not receive remuneration, the activities performed may still constitute work if there appears to be an element of competition with the local labour force. To determine what activities could be considered work, employers need to ask the following questions:
•Will the foreign worker be doing something a Canadian or permanent resident should really have the opportunity to do?
•Will the foreign worker be engaging in a business activity that is competitive in the marketplace?
The answers to these questions are not always obvious. Some examples of work may include:
•technical personnel coming to Canada to repair machinery or equipment, even if they are paid outside Canada by a third-party contractor; and
•a foreigner who intends to engage in self-employment, either directly or by receiving commissions or payment for services.
On the other hand, the following activities are not considered work:
•volunteer work for which a person would not normally be paid, such as activities for charitable or religious institutions;
•helping a friend or family member with housework or child care in the home; and
•attending meetings on behalf of a foreign employer to discuss products or services, take orders or specifications for a manufacturer abroad.
Does the employee need a work permit?
After determining a foreign worker will be engaging in work in Canada, consideration must then be given as to whether she needs a work permit.
As a matter of policy, everyone who intends to work in Canada requires a permit. But the regulations have carved out numerous exempt categories based on public policy grounds or on international treaties, which are valuable tools for employee transfers.
In some cases the activity to be performed by the foreign worker may be exempt from the need of obtaining a work permit altogether. (For a list of exempt occupations, see the sidebar on this page.)
Employers should carefully consider whether the foreign national may fit into one of the exemptions. Finding the right exemption can help avoid the need and cost of applying for a work permit, which may result in several weeks or even months of delays.
Labour market opinion exemptions
In general terms, any employee who is not covered by an exemption from a work permit is required to obtain a labour market opinion confirmation from HRSDC prior to qualifying for the permit.
But some foreign workers are exempt from this requirement and can apply for their permits directly at a visa post or Canadian port of entry, such as applicants under the North American Free Trade Agreement (NAFTA), the Canada-Chile Free Trade Agreement and the General Agreement of Trade in Services. The adjudication of these applications can be instant, as applicants are able to present their documents directly and receive approvals immediately.
Work permits granted under an exemption from labour market opinion include:
•Workers covered by international agreements. Canada is a signatory to many agreements involving the transfer of foreign personnel.
•Significant benefit to Canada or “Canadian interests.” Visa officers must consider what impact, if any, the admission of the foreign worker will have on the local workforce. This category includes:
•entrepreneurs and self-employed candidates seeking to operate a business while their applications for permanent residence are concluded;
•intra-company transferees, including senior managers and specialized knowledge workers moving between sister companies, branches and subsidiaries;
•professionals in certain categories from the United States or Mexico as covered by NAFTA; and
•reciprocal employment for Canadians abroad, including exchange programs, work related to research and programs specifically designed for foreign students.
Getting a labour market opinion
If the foreign worker doesn’t qualify for an exemption from obtaining a work permit and does not meet the criteria for obtaining a work permit exempt from labour market opinion, employers will be forced to obtain one before the employee can present his application.
Labour market opinion applications can be a time-consuming exercise. Employers may need to advertise the position for a minimum of two to three weeks in newspapers with national circulation and trade publications, interview potential candidates, keep detailed records and only then be able to present an application for recruiting a foreign worker. This could mean several weeks of processing time and increased costs of relocation.
HRSDC provides a labour market opinion at the request of the employer. The issuance of a positive opinion is based on the “Canadians first policy” which entails an analysis by HRSDC of whether local workers are available.
The employer requesting the opinion must demonstrate the need for the foreign worker and that it has made reasonable efforts to hire local candidates. The employer is required to provide, as a minimum:
•detailed information in writing and completion of all required forms to initiate the job-offer assessment; and
•supporting documentation describing the position offered, including copies of all advertisements, resume of the foreign worker, description of the business and its activities, profile of the current labour force and payroll records, financial statements and tax returns for the business, detailed explanation of how the foreign worker will integrate into the existing labour force and training plans for the labour force where the foreign worker will transfer skills.
HRSDC will scrutinize job offers
Unreasonable educational, language or other demands that make it appear that the position is tailored to a specific foreign employee usually raises red flags and applications may be denied.
Recent investigations resulting in fraud charges have raised concerns at HRSDC about the good faith of certain job offers presented by third-party intermediaries on behalf of foreign workers. Therefore, job offers for foreign workers are now subject to considerable scrutiny.
Employers should be careful not to misrepresent any information about the position in the application:
•if the wages or working conditions are lower than those in the marketplace for similar positions;
•if Canadian residents can fill the vacancy;
•if the employer has not conducted a search for qualified individuals in Canada; and
•if the employment of the foreign national is likely to adversely affect a settlement of a labour dispute.
Applications for labour market opinions are typically processed in a timeframe of 15 to 21 working days. This adds considerable processing time as the foreign worker cannot obtain a work permit until the labour market opinion is issued.
In some low-skilled occupations, labour market opinions are difficult to obtain. Therefore it is important that employers present very detailed, clear and well structured applications to HRSDC to maximize chances of approval.
Sergio Karas, a Toronto-based lawyer, is a certified specialist in Canadian citizenship and immigration law. He may be contacted at (416) 506-1800, email@example.com or visit >www.karas.ca.
|Exempt occupations: No work permit needed|
The Immigration and Refugee Protection Act lists a number of workers whose occupations are exempt from work permits, including:
•foreign representatives and their family members;
•foreign government officials;
•student permit holders engaging in part-time on-campus employment;
•performing artists in some categories;
•professional and semi-professional coaches and athletes;
•professional and semi-professional referees;
•spouses of foreign workers holding some classes of work permits;
•North American media crews;
•examiners and evaluators;
•expert witnesses or investigators;
•civil aviation inspectors;
•accident or incident inspectors;
•crew members of vessels or vehicles of foreign ownership or registry (such as ships, international trucking firms and civil aviation personnel); and
•emergency service providers.