Policy and delivery mechanism not designed to deliver employees with the skills that are in short supply
The job shortage that has been so acute in Alberta’s oil patch is starting to spread across the country. There is a tangible shortage of skilled workers in many sectors. The shortage is not only noticed in highly skilled services such as the financial services and engineering sectors, but also in relatively low-skilled occupations that Canadians are not prepared to assume.
The options available to employers are limited. Canadian educational institutions can meet the challenge of providing key skills, but certainly not in sufficient numbers to permit employers to remain competitive. This must be addressed by developing appropriate education programs and skill delivery mechanisms to meet both the short-term and long-term needs of business.
A viable option, one that should work well with developing local labour pools, involves tapping into foreign labour pools. Attracting individuals with key skills should permit employers to fill market gaps relatively quickly. Recruitment of foreign workers can produce immediate results.
Employers are reaching out for foreign talent, both within their global organizations and through new hire recruitment. The problem is that immigration policies and legislation are not in step with the needs of employers. Rather than being a conduit of key skills to Canada, the reality is that immigration policy and the delivery mechanism is not designed to deliver employees with the skills that are in short supply.
Effective recruitment requires employers to be more innovative. Immigration rules and procedures must be viewed as tools that can be mastered by employers to obtain results. The following five innovative steps can produce immediate results.
Foreign students working off-campus
On April 28, the Minister of Citizenship and Immigration announced foreign students can apply for work permits that will enable them to work off-campus for up to 20 hours per week while school is in session and full time during the summer. This presents an opportunity for employers to recruit for key skill shortages in areas such as financial services and engineering. They no longer need to wait for the job fairs after graduation to recruit from a labour pool of more than 100,000 foreign students, many of whom are looking to Canada for permanent residence.
Avoid Service Canada labour market opinions
Many employers are unaware that there are many exemptions to the labour market opinion issued by Service Canada. These exemptions include many alternate categories of application including intra-company transfers to Canada and post-graduate employment of foreign students. The North American Free Trade Agreement is also a valuable avenue for obtaining expedited processing of professionals such as engineers and accountants, where the employee is an American or Mexican citizen.
In avoiding the labour market opinion, foreign workers can start employment in a matter of weeks as opposed to months.
Understanding the labour market opinion process
It is unfortunate that Service Canada has not published a processing guideline or manual to assist employers. It is not surprising that employers have difficulty understanding the rules for qualification for the opinion — particularly with the considerable variation in approaches from one province to another.
Employers can address standardized requests for documentation, such as demonstrated recruitment efforts, by appreciating the concerns of Service Canada and developing presentations that speak directly to the issues of labour market shortages. Often, employers simply state there is a shortage and that advertising would be futile. The application can be strengthened considerably with expert evidence by way of letters from recruiters, associations or even licensing bodies, acknowledging the shortage.
Demonstrated recruitment efforts are an effective way to address labour shortage and skill transfer issues, which can avoid protracted discussions with Service Canada.
If there are multiple positions open, employers should request multiple approvals on the same application. This simply means employers may request that any number of positions be pre-approved based on the demonstrated shortage. Multiple approvals will save the employer from having to get in line each time a prospective employee is identified.
An increasing number of employers are using the services of outside agencies to identify appropriate foreign workers. These services range from typical employment agencies to organizations that specialize in providing individuals with specific skill shortages through a worldwide recruitment network. Service Canada typically views the “end user” as the employer and not the employment agency. This could have significant legal consequences, as typically the end user employer does not pay the salary and withhold statutory deductions. It is therefore critical for these end-user Canadian employers to present a strong and cogent argument that they are not the employer of record and should not be viewed as such in the labour market opinion. Factors that may assist in this position include the degree of control exerted over the employee by the business or entity providing the worker to the Canadian end user on a contract for services basis.
Provincial nominee programs
Employers should read up on the provincial nominee programs (PNP) for two reasons. First, foreign workers selected under the PNP will have their immigration applications fast-tracked. This is a considerable advantage. The backlog of immigration applications exceeds 700,000, and the immigration levels set by the government are not expected to increase in the near future. The PNP process is therefore the only real avenue available to employees who want to attain immigrant status in a reasonable period of time. This may very well mean a difference of years in processing.
Second, a PNP approval means the foreign worker need not have a labour market opinion issued for the purpose of obtaining an extension of a work permit, pending completion of the immigration application process. The PNP approval is all that is required to support the application for the new work permit.
Ontario is expected to announce a PNP this fall. This much-anticipated program is expected to streamline PNP approvals, and be both user-friendly and transparent. Most provinces already have PNPs in place.
The ins and outs of the immigration process
To be innovative when obtaining work permits for foreign workers, employers must be well-informed as to how the immigration program and delivery system actually works. This includes familiarity with a number of key issues:
•Where can an application for a work permit be filed — at a port of entry or Canadian visa office? The answer: port-of-entry processing is quick and efficient and the appropriate place to process an application for an employee who does not require a temporary resident visa. Some ports of entry provide more business-friendly interpretations of the immigration rules.
•Prospective employees who reside in specific countries, such as the Philippines or India, and who are coming to Canada for more than six months, will be required to undergo a medical examination prior to being given a work permit. This is usually a time-consuming process, adding delay (four to six weeks) to the already lengthy process of obtaining a labour market opinion. Recent changes to processing procedures now permit many foreign workers to file work permit applications and undergo medical examinations while the labour market opinions are in process. This approach saves a considerable amount of time.
Many Canadian visa offices are sensitive to an emergency need for a foreign worker and can be approached about expediting the application.
With the increase of labour market shortages, and the complexity of immigration processes, employers have to develop a more aggressive approach. HR policies and procedures have to be innovative and effective to deliver scarce skills to a truly globally competitive environment.
Howard Greenberg is a Toronto-based partner with the law firm of Greenberg Turner. He is a certified specialist in immigration law and advises multinational corporations on developing strategies for expedited processing. He can be reached at [email protected].
The options available to employers are limited. Canadian educational institutions can meet the challenge of providing key skills, but certainly not in sufficient numbers to permit employers to remain competitive. This must be addressed by developing appropriate education programs and skill delivery mechanisms to meet both the short-term and long-term needs of business.
A viable option, one that should work well with developing local labour pools, involves tapping into foreign labour pools. Attracting individuals with key skills should permit employers to fill market gaps relatively quickly. Recruitment of foreign workers can produce immediate results.
Employers are reaching out for foreign talent, both within their global organizations and through new hire recruitment. The problem is that immigration policies and legislation are not in step with the needs of employers. Rather than being a conduit of key skills to Canada, the reality is that immigration policy and the delivery mechanism is not designed to deliver employees with the skills that are in short supply.
Effective recruitment requires employers to be more innovative. Immigration rules and procedures must be viewed as tools that can be mastered by employers to obtain results. The following five innovative steps can produce immediate results.
Foreign students working off-campus
On April 28, the Minister of Citizenship and Immigration announced foreign students can apply for work permits that will enable them to work off-campus for up to 20 hours per week while school is in session and full time during the summer. This presents an opportunity for employers to recruit for key skill shortages in areas such as financial services and engineering. They no longer need to wait for the job fairs after graduation to recruit from a labour pool of more than 100,000 foreign students, many of whom are looking to Canada for permanent residence.
Avoid Service Canada labour market opinions
Many employers are unaware that there are many exemptions to the labour market opinion issued by Service Canada. These exemptions include many alternate categories of application including intra-company transfers to Canada and post-graduate employment of foreign students. The North American Free Trade Agreement is also a valuable avenue for obtaining expedited processing of professionals such as engineers and accountants, where the employee is an American or Mexican citizen.
In avoiding the labour market opinion, foreign workers can start employment in a matter of weeks as opposed to months.
Understanding the labour market opinion process
It is unfortunate that Service Canada has not published a processing guideline or manual to assist employers. It is not surprising that employers have difficulty understanding the rules for qualification for the opinion — particularly with the considerable variation in approaches from one province to another.
Employers can address standardized requests for documentation, such as demonstrated recruitment efforts, by appreciating the concerns of Service Canada and developing presentations that speak directly to the issues of labour market shortages. Often, employers simply state there is a shortage and that advertising would be futile. The application can be strengthened considerably with expert evidence by way of letters from recruiters, associations or even licensing bodies, acknowledging the shortage.
Demonstrated recruitment efforts are an effective way to address labour shortage and skill transfer issues, which can avoid protracted discussions with Service Canada.
If there are multiple positions open, employers should request multiple approvals on the same application. This simply means employers may request that any number of positions be pre-approved based on the demonstrated shortage. Multiple approvals will save the employer from having to get in line each time a prospective employee is identified.
An increasing number of employers are using the services of outside agencies to identify appropriate foreign workers. These services range from typical employment agencies to organizations that specialize in providing individuals with specific skill shortages through a worldwide recruitment network. Service Canada typically views the “end user” as the employer and not the employment agency. This could have significant legal consequences, as typically the end user employer does not pay the salary and withhold statutory deductions. It is therefore critical for these end-user Canadian employers to present a strong and cogent argument that they are not the employer of record and should not be viewed as such in the labour market opinion. Factors that may assist in this position include the degree of control exerted over the employee by the business or entity providing the worker to the Canadian end user on a contract for services basis.
Provincial nominee programs
Employers should read up on the provincial nominee programs (PNP) for two reasons. First, foreign workers selected under the PNP will have their immigration applications fast-tracked. This is a considerable advantage. The backlog of immigration applications exceeds 700,000, and the immigration levels set by the government are not expected to increase in the near future. The PNP process is therefore the only real avenue available to employees who want to attain immigrant status in a reasonable period of time. This may very well mean a difference of years in processing.
Second, a PNP approval means the foreign worker need not have a labour market opinion issued for the purpose of obtaining an extension of a work permit, pending completion of the immigration application process. The PNP approval is all that is required to support the application for the new work permit.
Ontario is expected to announce a PNP this fall. This much-anticipated program is expected to streamline PNP approvals, and be both user-friendly and transparent. Most provinces already have PNPs in place.
The ins and outs of the immigration process
To be innovative when obtaining work permits for foreign workers, employers must be well-informed as to how the immigration program and delivery system actually works. This includes familiarity with a number of key issues:
•Where can an application for a work permit be filed — at a port of entry or Canadian visa office? The answer: port-of-entry processing is quick and efficient and the appropriate place to process an application for an employee who does not require a temporary resident visa. Some ports of entry provide more business-friendly interpretations of the immigration rules.
•Prospective employees who reside in specific countries, such as the Philippines or India, and who are coming to Canada for more than six months, will be required to undergo a medical examination prior to being given a work permit. This is usually a time-consuming process, adding delay (four to six weeks) to the already lengthy process of obtaining a labour market opinion. Recent changes to processing procedures now permit many foreign workers to file work permit applications and undergo medical examinations while the labour market opinions are in process. This approach saves a considerable amount of time.
Many Canadian visa offices are sensitive to an emergency need for a foreign worker and can be approached about expediting the application.
With the increase of labour market shortages, and the complexity of immigration processes, employers have to develop a more aggressive approach. HR policies and procedures have to be innovative and effective to deliver scarce skills to a truly globally competitive environment.
Howard Greenberg is a Toronto-based partner with the law firm of Greenberg Turner. He is a certified specialist in immigration law and advises multinational corporations on developing strategies for expedited processing. He can be reached at [email protected].
