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Businesses in Canada's North cite employment and business
immigration as a critical business issue. It is a reality of many
businesses in the Territories that they require foreign workers for
at least part of their staffing complement. However, before you
make an offer of employment to a foreign worker, here are a few
things to keep in mind.
Generally speaking, an individual who is not a Canadian citizen
or permanent resident of Canada must obtain a work permit before
working in Canada. In immigration law, "work" is defined
as an activity for which wages are paid or commission is earned, or
that is in direct competition with the activities of Canadian
citizens or permanent residents in the Canadian labour market. Work
also includes a technician coming to Canada from the United States
to conduct repairs, or perform a contract, even if he or she will
not be paid directly by the Canadian company for whom he or she is
doing the work.
Before the foreign worker can apply for a work permit, the
Canadian company must first obtain a positive Labour Market Opinion
(LMO) from Service Canada, unless the employee falls under a
specific exemption category from the LMO process. The processing
times for an LMO application vary in each area of Canada. For
example, it could take 10-12 weeks to process an LMO application
for NWT or Nunavut. The Canadian company must also demonstrate it
made efforts to recruit a Canadian citizen or permanent resident
before submitting the LMO application. Once a LMO is issued by
Service Canada, the foreign worker must provide a copy of it when
applying to Citizenship and Immigration Canada for a work
permit.
NAFTA exemptions to the LMO requirements include such
occupations as accountants, architects and engineers, to name a
few.
Workers may qualify for entry to Canada as business visitors
(and thus, not need a work permit) if they are foreign nationals
engaging in international business activities in Canada, without
directly entering the Canadian labour market. Examples include
after-sales service such as repairing and servicing, supervising
installers, and setting up and testing commercial or industrial
equipment (including computer software).
Even if the foreign worker has been provided a copy of the
positive LMO for his position or it can be demonstrated that an LMO
is not required, the foreign worker may still not qualify for a
work permit or be prevented from entering Canada. Such workers must
still demonstrate to the Canada Border Services Agency (CBSA) or
immigration officer at the port of entry (i.e. airport or border
crossing) that they have the qualifications required for the
position and must not pose a criminal, security or health risk to
Canadians. For example, a citizen of the United States with an
impaired driving conviction could be considered "criminally
inadmissible" and be denied entry.
Applicants from visa-exempt countries who have a positive LMO,
or who qualify under an LMO exemption category, may be able to
apply directly at the port of entry (i.e. airport or border
crossing). Port of entry applications can significantly speed up
the application process if the Canadian company needs the foreign
worker in a hurry.
Canadian work permits differ from visas. A visa in Canada is
normally a reference to Temporary Resident Visas, or
"TRVs". Citizens of some countries (such as Mexico) are
required to obtain a TRV in order to enter Canada. This is in
addition to any work permit requirements and must be applied for
prior to entering Canada.
It can take 4-6 weeks for a TRV and work permit to be processed
at a visa office. Some applicants may also be required to undergo a
medical exam before entering Canada. If a medical exam is required
by the local visa office, the processing times would be even
longer.
In summary, a worker coming from the United States may encounter
a number of issues that could result in a denial of his or her
entry into Canada. Business immigration rules in this country are
numerous and sometimes complex, but they aren't
insurmountable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Given the complexities of a typical business acquisition, it is frequently the case that immigration issues slip well down the priority list for such a transaction.
As part of its Economic Action Plan 2013, the Federal Government signalled that it would be taking action in the coming months to reform the Temporary Foreign Worker Program.
The CEC, woven into the framework of the IRPA in 2008, was established in a bid to retain the top talent from abroad and overcome the excessively long processing delays many applicants experience when applying for permanent residence status under the federal skilled worker program.
