Canada: Canadian Immigration Guide For Businesses

Last Updated: March 20 2017
Article by Sven Walker and Richard Leuce

Every year, businesses conduct cross-border commerce activities and experience labour and skill shortages. Canadian businesses recruit and relocate skilled workers abroad to fill contracts and business needs, and international companies send employees to Canada on their behalf to engage in international business activities.

It is critical for Canadian employers to know their options for bringing foreign talent to Canada and to have an immigration strategy from the outset to avoid delays or refusals of their workers entering Canada, which impacts business operations, contracts and profits.

Setting out an immigration plan is a key step in achieving business needs and to ensure that no time or cost is wasted because a project or office could not be properly staffed due to immigration hurdles or delays.

This Guide provides an overview of the most popular ways that Canada's immigration policy can benefits employers in addressing and filling temporary skill and labour shortages and in bringing international staff to Canada to engage in business on their behalf, and highlights important considerations for employers, including employer compliance responsibilities.

Introduction

There are many options for employers seeking to access temporary foreign talent and for international business persons entering Canada to engage in business activities. Some individuals require work permits before they can enter Canada, while others may not need a work permit and can qualify as business visitors for short-term visits. Immigration, Refugees and Citizenship Canada (IRCC) governs Canada's immigration system. The Government of Quebec administers the selection process, and its own immigration categories, for those foreign nationals intending to reside in the Province of Quebec.

The Work Permit: Who Needs One?

Whether an individual needs a work permit or not depends on their intended duties and responsibilities in Canada. As a general rule, when a foreign national performs work in Canada, he or she requires a work permit. Work permit holders are called Temporary Foreign Workers (TFWs).

Generally, work means activities for which wages/commission is earned or activities that compete with the Canadian labour market and take away opportunities for Canadians. Competing activities include those that a Canadian should have the opportunity to do or that are competitive in the Canadian marketplace, instead of international in scope, for example.

Activities that are not considered work are those that do not take opportunities for employment away from Canadians, which are international in scope, and do not compete directly with the Canadian marketplace. These foreign nationals are covered below, under Business Visitors.

Obtaining A Work Permit: The Process

Some Workers Need a Temporary Resident Visa Before Entering Canada

The work permit process depends on whether the foreign worker requires a Temporary Resident Visa (TRV) or is TRV-exempt. A TRV is a travel visa that citizens of some countries need before they can travel to Canada, in addition to a work permit that gives them the right to work once they arrive in Canada. Foreign nationals who need a TRV have to apply at a visa office abroad for a TRV first, before they can travel to Canada. A work permit application filed at a Canadian visa office includes a request for a TRV.

Where a TRV is required, the processing time for an application varies but generally ranges between one to six months. It can take longer if a medical examination or police clearances are required, which depends on where the foreign national resides, or has resided in the past.

Workers that Do Not Need a Temporary Resident Visa

TRV-exempt foreign nationals can apply for work permits upon entry to Canada (i.e. at an airport or land crossing) and have their work permit issued on site. While this process allows some TFWs to avoid long processing times at visa offices, there is no guarantee that a work permit will be approved before the foreign national travels to Canada, so there is a potential risk of refusal when the foreign national arrives in Canada. A refused application at the port of entry generally means that the foreign national is denied entry to Canada and has to return to their country of origin. Ultimately, the admitting border officer has the discretion to grant or deny anyone entry to Canada.

How Long Can Work Permits be Issued For?

The maximum duration is generally three years. However, this can be restricted or extended in some cases. The duration of the work permit will be at the discretion of the immigration officer who issues the work permit. Extensions can be obtained, but this is an active process and is not done automatically. Extensions are normally applied for from inside of Canada but can be obtained at a port-of-entry in some cases.

Work Permit Conditions

Work permit conditions come in two general types. Restricted, or closed, work permits have conditions defining the allowable location (i.e. city, province), occupation and employer. Sometimes, work permits can be restricted to one occupation and employer but the location can allow a worker to work across Canada at different office or client sites. Unrestricted, or open, work permits allow TFWs to work in any occupation across Canada for any employer, with the exception of jobs in health care, childcare or early childhood education unless a special medical examination has been completed.

The Canadian Work Permit Programs

There are two types of TFWs: those that fall under the Temporary Foreign Worker Program and require employers to get confirmation from Employment and Social Development Canada (ESDC), and those that fall under the International Mobility Program and are exempt from this confirmation. The Labour Market Impact Assessment (LMIA) is a confirmation that some employers will need to obtain from ESDC before hiring a TFW.

  1. LMIA-Based Workers fall under the Temporary Foreign Worker Program (TFWP). Employers of these workers require a positive Labour Market Impact Assessment (formerly called a Labour Market Opinion, or LMO) before the TFW starts work in Canada.
  2. LMIA-Exempt Workers fall under the International Mobility Program (IMP). These workers do not require a LMIA. Employers can bring workers in under this category to gain competitive advantages in the Canadian labour market, while avoiding the time and cost of applying for a LMIA.

The Temporary Foreign Worker Program: Labour Market Impact Assessments

The LMIA process is a part of the Temporary Foreign Worker Program that is administered by ESDC. Generally, anyone who is not a Canadian citizen or permanent resident requires a work permit before they can work in Canada and falls under this category, unless they qualify for a special exemption. Where a LMIA is needed, the employer must apply to ESDC and demonstrate that no qualified Canadian citizen or permanent resident is available to do the job. Once a positive LMIA is received, the TFW can then travel to Canada and start work. There are additional requirements for TFWs destined for Quebec that require LMIAs.

The LMIA process is difficult and lengthy for employers and has been subject to regular government reforms. As a strategy, it should be the last resort for employers bringing in TFWs to avoid wasting time and money.

The LMIA Application Process

Employers must advertise and recruit Canadian talent by posting advertisements and interviewing potentially qualified Canadians. Employers also have to satisfy ESDC that the wages and working conditions offered are equal to local standards based on government-set prevailing wage levels. These wage levels vary by region and occupation. Employers will also need to attest to ESDC that the hiring of a TFW will not displace Canadian workers or undercut the wages of qualified Canadians, and confirm their commitment to other compliance requirements.

Recruitment

Employers must follow a very specific recruitment process and advertise the position for at least one month before a LMIA application can be submitted. The recruitment must be a genuine effort to locate a qualified Canadian citizen or permanent resident for the role in Canada and must satisfy ESDC's strict requirements, which are often incongruous to long-established recruitment practices in Canada. Even a justifiable deviation from ESDC's minimum requirements can mean that a LMIA application can be refused, setting employers back months.

Once a positive LMIA has been issued a TFW can apply for a work permit (and TRV, if required) authorizing their employment for the specific role in Canada.

The LMIA Should be a Last Resort Strategy

Employers should understand that participation in the Temporary Foreign Worker Program requires a number of undertakings and disclosure of confidential information regarding the company's operations in Canada. This includes adherence to the pay and working conditions set out in an approved LMIA and the intention to either help the TFW transition to Canadian permanent residence or to train a Canadian for the job in the long term. The process can take several months and is not an option for employers who need to fill immediate labour shortages. Some options for quicker processing exist for short-term positions or positions that are offering high wages, as defined by government wage information. Ultimately, the LMIA process is not the best way for businesses to fill long-term employment shortages and should be a final resort.

To read this Guide in full, please click here.

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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Authors
Sven Walker
Richard Leuce
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