As previously reported, Immigration Canada (CIC) has introduced an Employer Portal, which came online as of October 26, 2015. Employers seeking LMIA-exempt work permits will need to use the Employer Portal.
Employers seeking most types of LMIA-exempt work permits will need to use the Employer Portal in order to pay the $230 employer compliance fee and to submit the Offer of Employment information to CIC. The fee payment and uploading of the LMIA-exempt offer of employment information through the Employer Portal must be completed prior to the foreign national applying for the LMIA-exempt work permit. Failure to do so will mean that the work permit application will be refused.
The Employer Portal replaces the IMM 5802 form. The IMM 5802 form was introduced in February 2015 as an interim measure until the Employer Portal was in place.
The offer of employment information within the Employer Porter is entered by completing various online questions. Most of the information fields correspond to the questions that were set out in the IMM 5802 form. The online offer of employment to an LMIA-exempt foreign national has sections on the employer's business information, the foreign worker, the job details and the wage and benefits relating to the job.
The Employer Portal will also store all of the various LMIA-exempt offers of employment filed by the employer. Employers should carefully consider who is given access to their Employer Portal, as it will contain sensitive information (such as salary information).
Once the compliance fee and offer of employment are submitted via the Employer Portal, the system will generate an "offer of employment ID number". This ID number must be included in the work permit application.
CIC will be introducing new work permit (IMM 1295) and extension (IMM 5710) forms in November 2015 which will include a field to enter the offer of employment ID number. Employers will need to make sure that foreign worker applicants use the new forms once they are introduced.
In order to utilize the Employer Portal, each employer must first enrol. The "primary user" is the first person to enrol the employer in the portal. Once this is done, employers can set up "secondary users" who will be able to complete an offer of employment on behalf of an employer or a branch of the employer.
New Instructions to Reviewing Officers
CIC has also set out new instructions to officers regarding LMIA-exempt work permit matters in the form of a Program Delivery Update: Program Update re employer specific LMIA-exempt work permits
Employers need to be aware of the instructions. For example, officers are told to review the work permit application against the information provided by the employer in the offer of employment filed with CIC. Officers are also told that they must contact the employer contact listed on the uploaded offer of employment to correct any errors or change any information in the offer of employment, to address any concerns about the genuineness of the offer, or to address the accuracy of information provided by the employer in the work permit application.
Lessons for Employers
Employers using the International Mobility Program (IMP) to obtain LMIA-exempt work permits such as intra-company transfer work permits or NAFTA/FTA work permits need to be aware of the new procedural requirements. Failure to use the Employer Portal will mean that the underlying work permit application will be refused.
Employers who utilize LMIA-exempt work permits should consider setting up their Employer Portal account in advance of actually needing to file their first post October 26, 2015 offer of employment. That way, the Employer Portal is ready to be used and you will avoid any potential delays associated with setting up the Employer Portal. Such a delay could be an issue if you are an employer that faces a sudden, unanticipated need to obtain an LMIA-exempt work permit. Setting up the Employer Portal in advance will also provide employers with time to consider who should be given access or set up as secondary users. Protocols for gathering the information needed to fill out the online offer of employment information should also be set up.
But the implications for employers go far beyond getting things right procedurally.
Firstly, it is more important than ever to properly identify, well in advance, whether a foreign national needs a work permit for the activity in Canada. This is especially true where the situation is a third party foreign service provider or consultant. If that foreign national arrives at the port of entry in Canada trying to enter as a business visitor, but the port of entry officer concludes that they need a work permit, they will be refused entry as the compliance fee and offer of employment form will not have been done in advance.
Secondly, it is imperative that employers carefully vet and consider the content of the offer of employment filed in the Employer Portal. This is information that the employer is declaring to be true. The content of the offer of employment may be used on future inspections by government authorities, which will check the accuracy of the information. Furthermore, regulation 209.2(1)(b)(i) of IRPA places a condition on employers that they must be able to demonstrate the accuracy of information provided to authorities in a work permit application. The best way to mitigate the risk of non-compliance is to ensure that the information and documentation provided in support of any work permit application is accurate.
Thirdly, since officers reviewing the work permit application are instructed to compare the offer of employment information against the information set out in the work permit application (which could include things like the company support letter or the work permit application form where it is a visa office application), it is important to ensure that there are no inconsistencies or inaccuracies within the application materials.
Employers seeking LMIA-exempt work permits will need to use the Employer Portal starting on October 26, 2015, in order to pay the $230 compliance fee, upload the offer of employment information and generate the "offer of employment ID number" which must be included in the subsequent work permit application.
Gowlings' Immigration Practice group can provide assistance to employers that need advice relating to the Employer Portal or that need to have their Employer Portal account set up. We can also help employers develop best practices and protocols to deal with LMIA-exempt work permit applications, to address issues relating to the Employer Portal, and to minimize the risk of employer non-compliance with immigration rules or regulations.
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.