Work Permits for Foreign Workers
Karas Immigration Law Professional Corporation can help you obtain the appropriate Work Permits and Visas for your foreign personnel relocated or assigned to Canada in a fast and cost-efficient manner. We help companies to achieve their strategic hiring objectives.
The Immigration and Refugee Protection Act ("IRPA"), and its regulations have been in effect since June 28, 2002, and provide more flexibility to hire foreign workers than previous immigration legislation. However, employers should plan carefully when considering international relocations, to avoid the pitfalls that plague the system, including misunderstandings as to who can work in Canada and for how long, delays at visa processing posts overseas and compliance with Employment and Skills Development Canada ("ESDC") requirements for obtaining Labour Market Impact Assessment.
FIRST THINGS FIRST: IS THIS "WORK"?
A foreign worker may be authorized to work in Canada without a permit or may be required to obtain one. The first step in determining whether a Work Permit is needed is to consider the nature of the activities to be performed by the foreign worker. "Work" is defined in the regulations 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, he or she will be engaging 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 which activities could be considered "work", ask yourself the following questions:
* Will the foreign worker be doing something that 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 market place? The answers to these questions are not always obvious. Some examples of "work", may include, but are not limited to:
- Technical personnel coming to Canada to repair machinery or equipment, even if they are paid outside of Canada by a third party contractor.
- 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 to be "work":
- Volunteer work for which a person would not normally be paid, such as activities for charitable or religious institutions.
- Helping a friend of family member with housework or childcare in the home.
- Attending meetings on behalf of a foreign employer to discuss products or services, take orders or specifications for a manufacturer abroad. We can help you determine if your employee will be performing activates considered to be "work" and require a Work Permit.
DOES MY EMPLOYEE NEED A WORK PERMIT?
After determining that the foreign worker will be engaging in "work" in Canada, consideration must be given as to whether he or she needs a Work Permit. As a matter of policy, all persons who intend to work in Canada require a permit. However, the regulations have carved out numerous exempt categories based on public policy grounds or on international treaties such as the North American Free Trade Agreement ("NAFTA"), the Canadian-Chile Free Trade Agreement ("CCFTA"), the Canada -Peru Free Trade Agreement, the Canada-Colombia Free Trade Agreement ("FTA"), the Canada -Korea Free Trade Agreement, and the General Agreement of Trade in Services (GATS), 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 all together. The regulations list 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.
*Health care students.
*Civil aviation inspectors.
*Accident or incident inspectors.
*Crew members of vessels or vehicles of foreign ownership or registry (i.e. ships, international trucking firms, civil aviation personnel).
*Emergency service providers. We can help you to identify the right exemption and avoid the need and cost of applying for a Work Permit.
MY EMPLOYEE NEEDS A WORK PERMIT, BUT IS HE EXEMPT FROM A LABOUR MARKET IMPACT ASSESSMENT?
In general terms, any foreign worker who is not covered by an exemption from a Work Permit is required to obtain a Labour Market Impact Assessment from ESDC prior to qualifying for a Work Permit. However, some foreign workers are exempt from this requirement, and can apply for their Work Permits directly at a visa post or Canadian Port of Entry. The adjudication of these applications can be instant, as applicants are able to present their documents directly at a Port of Entry or visa post and receive approvals on an immediate basis. Work Permits granted under an exemption from Labour Market Impact Assessment include:
- Workers covered by international agreements: Canada is a signatory to many agreements involving the transfer of foreign personnel. Admission of foreign workers under these agreements benefits the Canadian economy and serves to meet other objectives of foreign policy, culture, trade and commerce. These agreements are generally listed in the Immigration Manual. Examples include the GATS, CCFTA and country specific trainee programs.
- 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 work force. This category includes: - Entrepreneurs/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 or subsidiaries. Special attention must be paid to citizens of the United States and Mexico who are covered under NAFTA, citizens of Chile covered under the CCFTA and those covered by GATS. Generally speaking, senior managers include persons in a senior executive or managerial capacity, who are employees of a branch, subsidiary, affiliate or parent company. Senior managers and executives can receive their Work Permits for up to three years in duration, which can be renewed for a further period of time if the assignment continues. Specialized knowledge workers must demonstrate an advanced level of knowledge or expertise in the organization's products or processes and may qualify for a Work Permit of up to one year in duration, which can be renewed up to a maximum of three years. Applicants in all the intra-company transferee categories must have worked for at least one year of the previous three years in a similar position for the company that plans to transfer them to Canada, and are expected to occupy a similar position within the Canadian branch or sister company.
- NAFTA: Professionals in certain categories can be granted Work Permits for the period of one year without the need of a Labour Market Impact Assessment, renewable as long as the assignment continues. The applicants must be citizens of the United States or Mexico in order to enter Canada and meet the minimum educational requirements set out in the agreement. NAFTA also has very generous provisions concerning intra-company transferees, which have been incorporated into the regulations. Traders and Investors are also covered by generous NAFTA provisions which need to be explored prior to filing an application for a Work Permit.
- Reciprocal Employment for Canadians: the regulations contain several provisions concerning reciprocal employment for Canadians abroad, including international youth exchange programs, academic exchanges, work related to research, educational training programs, and programs specifically designed for foreign students, including post-graduation employment, post-doctoral fellowships and award recipients, all useful tools in obtaining Work Permits. We can help you and your employee to identify and obtain the most appropriate Work Permit under the right category to maximize the benefits of his assignment in Canada.
MY EMPLOYEE IS NOT EXEMPT AND NEEDS A LABOUR MARKET IMPACT ASSESSMENT! WHAT DO I DO?
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 Impact Assessment, employers will have to obtain one before the employee can present his application at a visa post abroad or Port of Entry. Labour Market Impact Assessment applications can be a time consuming exercise. Employers may be required to advertise the position, interview potential candidates, keep detailed records and only then be able to present an application for recruiting a foreign worker. ESDC provides a Labour Market Impact Assessment at the request of the employer. The issuance of a positive opinion is based on the "Canadians first policy" which entails an analysis by ESDC of whether local workers are available to fill a specific job vacancy. The employer requesting the Labour Market Impact Assessment must demonstrate the need for the foreign worker and that it has made reasonable efforts to hire local candidates, including appropriate advertisement and other hiring efforts. Applications for Labour Market Impact Assessment require knowledge and expertise. Employers should be careful not to misrepresent any information in the applications. ESDC may refuse the application if it finds that the wages or working conditions are lower than those in the market place for similar positions, or if it is determined that Canadian residents can fill the vacancy, or if the employer has not conducted a search for qualified individuals in Canada, or if the employment of the foreign national is likely to adversely affect a settlement of a labour dispute, or for any other valid reason.
We have the knowledge, expertise and many years of experience handling successful Labour Market Impact Assessment applications to ensure that your company presents all the required documentation m detailed, clear and well structured applications to ESDC to maximize chances of a successful outcome.
When considering hiring a foreign worker, employers must ensure that they receive the appropriate legal advice from an experienced and knowledgeable immigration lawyer to ensure they have canvassed all possible exemptions to avoid costly and time consuming processing delays. Karas Immigration Law Professional Corporation can help you plan ahead and make the right moves when relocating foreign workers to Canada.