Category Archives: Temporary Work Permits

Temporary Work Permits for Essential Start-up Business Class Personnel

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A start-up business class pilot program has been created to attract entrepreneurial applicants for permanent resident status. The program is fundamentally based on having the support of a designated Canadian investment group or business incubator, although other statutory requirements exist.

Temporary work permits may be issued cases in which the candidate intends to reside outside of the province of Quebec, and in which the designated investment group or incubator documents both that a candidate is essential and that there are urgent business requirements that mandate such admission. The application process mimics that of other LMO exempt work permits: applicants that are passport-visa and medical-examination exempt may apply for the work permit at a port of entry or visa office; others must apply at a visa office (including online submissions). Spouses or common-law partners of eligible candidates will be able to seek their own open work permits for the same duration as the principal foreign worker’s permit.

Spouses/Partners of Bridge Work Permit Holders

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In December of 2012, CIC announced provisions for bridging open work permits to temporary foreign workers who had been approved in an economic class permanent resident application. The department has now issued clarification as to when a spousal partner (which may include common law partners) may become eligible for an open work permit on the basis of the principal foreign worker’s bridge work permit.

The following conditions allow the spouse of an open bridging work permit to seek an open work permit:

  • Federal Skilled Workers: the principal foreign worker must be performing work which is classified as high-skill (NOC 0, A, or B).
  • Provincial Nominees: the spouse may seek an open work permit for the same duration as that of the principal applicant for all skill level occupations.
  • Federal Skilled Trades: the principal foreign worker must be performing work consistent with one of the qualifying (NOC Skill Level B) occupations.
  • Canadian Experience Class: There are no limiting factors in this category.
  • As a side consideration, dependent children of such an Economic Class applicant, must obtain a Labour Market Opinion or otherwise be eligible for an exemption from such in order to seek a work permit.

Proposed Changes to Temporary Foreign Worker Program

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Naomi Alboim, an adjunct professor at Queen’s University’s School of Policy Studies, recently stated that Canada is experiencing ‘unprecedented’ changes to immigration policy, and there is more recent evidence to support this. On the heels of the 2011 revision to the legislation governing temporary foreign workers in Canada, the Minister has recently announced that upcoming rules will make the process of employing foreign workers more complex.

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Inserted into the 2013 Federal Budget are modifications to certain immigration programs, including a section on “Reforming the Temporary Foreign Worker Program.” The immigration department looks to change the present requirements by:

1. Increasing the duration and scope of recruitment that Canadian employers must sometimes undertake prior to being able to obtain a temporary work permit for non-Canadians. There will certainly remain situations in which recruitment will not be mandatory, including situation-specific exemptions and international treaties.

2. Promoting the need to train Canadians to assume the roles of foreign workers over time. This could, of course, include those situations in which the foreign worker becomes a Canadian permanent resident following the issuance of a work permit.

3. Reducing the capacity to use language requirements as a requirement of an occupation in order to facilitate the issuance of a work permit.

4. Introduction of application fees for filing a Labour Market Opinion request.

The proposals are all reasonable and will not hurt employers, Canadian or foreign, in those cases in which the admission of temporary foreign workers are genuinely needed. These sorts of changes, however, will put increased focus on ensuring that the strongest possible case is pursed from the outset and presented at the time of submission.

Canadian Visa Office Changes

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The visa and immigration sections of the Canadian Embassy in Caracas have closed. Nationals and legal residents of Venezuela will now be required to submit work permit applications to the Canadian Embassy in Mexico City. Current average historical delays for work permit applications at that office are 1 month.

In the USA, all work permit applications are now being processed in New York City. The Canadian Consulate in Los Angeles will no longer process work permits, and will be responsible for all study permit applications in the USA. Current average historical delays for work permit applications at the New York City office are 2 months.

Bridging Work Permits for Successful Economic Class Applicants

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Citizenship and Immigration Canada has introduced provisions allowing for the issuance of bridging open work permits to foreign workers in Canada (i.e., holding a valid work permit) who have been approved in certain economic class applications. The eligible economic class category and the criteria for approval are as follows:

Federal Skilled Worker Program: the status of the  “Ministerial Instructions” criteria has been stated by CIC as “Met”, or a positive Final Determination of Eligibility letter/ e-mail has been issued to the applicant.

Provincial Nominee Program: the status of the “Eligibility EC-QC/PNP” is set to “Passed” or the Acknowledgment of Receipt been issued by mail or email by the Centralized Intake Office (CIO).

Canadian Experience Class: the status of the “Eligibility CEC” decision is set to “Passed” or the Acknowledgement of Receipt has been mailed or emailed from CIO.

Federal Skilled Trades Program: the Acknowledgement of Receipt has been mailed or emailed from CIO.

Eligible candidates may submit an inland change of terms application to the Case Processing Centre in Vegreville, requesting an open work permit. Such permits will be valid for one year. Renewal applications are possible, but the expectation is that the economic class permanent resident application would be completed by the end of that one year.

Work Permit Holders Eligible for Permanent Resident Status Sooner

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Temporary foreign workers with one year of experience in high skilled occupations (i.e., National Occupational Classification 0, A, or B) will soon be eligible to apply for permanent resident status in the Canadian Experience Class (CEC) more quickly. Effective January 02, 2013, those who have 12 months of work experience in a skilled occupation while holding a valid work permit will become eligible in the CEC’s experience stream. This is being reduced from the previous 24 months that was required for candidates in this stream.

The changes to the CEC program also affects experience requirements for foreign graduates from a Canadian post-secondary institution, permitting such experience within the previous 36 months, as opposed to the previous 24. Overall, these changes represent increased focus by the current immigration Minister on the admission of those with demonstrated experience or credentials from within Canada.

The CEC has advantages over other permanent resident programs, which include an absence of fixed quotas and the lack on ongoing reliance on valid work permits or support from a Canadian employer.

Province/Territory-specific open work permits for nominated foreign nationals

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As part of the Federal Skilled Worker Backlog Reduction Pilot, Citizenship and Immigration Canada has permitted provinces and territories to nominate candidates based on work experience from existing backlogs. These are individuals who do not have existing offers of work from Canadian employers.

The Canadian provinces and territories have requested a mechanism for issuance of open work permits to the candidates that they nominate, that would allow for faster entry to Canada while permanent resident processing is under-way. In an effort to respond to labour market needs, CIC is allowing nominated foreign nationals to apply for one of up to 1,500 province-specific open work permits (i.e., not specific to an occupation and not requiring a job offer in advance).

These work permits may be granted for a duration of up to two years, and are not eligible for renewal thereafter. The intent is for the candidate to have permanent resident status in Canada by the end of this validity.

The program is open only to selected foreign nationals with a letter of support from the nominating province. A Labour Market Opinion will not be required in these cases, which can be processed through the normal avenues (i.e., visa office abroad, port of entry when permitted, and inland).

New Temporary Resident Visa Requirements

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Citizenship and Immigration Canada has imposed Temporary Resident Visa (TRV, also referred to as a visitor visa) requirements for nationals of Botswana, Namibia, St. Lucia, St. Vincent and the Grenadines, and Swaziland. Citizens of these countries must now apply to the responsible  visa office in advance of travel in order to be eligible to appear at a Canadian port of entry.

This means that work permits must also be sought at a visa office prior to travel to Canada. Eligible TRV exempt nationals can commonly apply for work permits at the port of entry while travelling into Canada. The imposition of the TRV requirements in these cases means that this will not be possible for nationals of these countries. The most significant impact of this is to the timing of such applications. Whereas a port of entry case can be concluded in a matter of hours if clear and complete, a visa office application will require several weeks at a minimum, and possibly months.

Work Permit Applications in the USA

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Citizenship and Immigration Canada has been implementing budget cuts that are part of ongoing efforts to streamline the immigration system. As part of this, the approach to submissions of work permit applications to visa offices in the USA has changed. Until now, applicants may have applied to one of the six consular offices in the USA, typically selected based on geographical jurisdiction. The six offices were in New York City, Buffalo, Detroit, Washington DC, Seattle, and Los Angeles.

The office in Buffalo has been closed entirely to the public, and will no longer accept any temporary resident applications. The offices in Detroit, Washington DC, and Seattle will only accept Temporary Resident Visa (i.e., Visitor) applications from those with legal admission to the USA, but will not accept Study Permit or Temporary Work Permit applications. All such applications must now be submitted either to Los Angeles or New York City.

Applicants residing East of the Mississippi River, including Puerto Rico, Bermuda and St. Pierre and Miquelon, should submit cases to New York City, and those west of the Mississippi should submit cases to Los Angeles. Temporary Resident Permits and Authorization to Return to Canada applications may be submitted to any of these five remaining offices responsible for temporary resident applications. Those who remain exempt from the requirement to obtain a passport visa to travel to Canada, may still apply for work permits at ports of entry when that option is available.

Accelerated Labour Market Opinion

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HRSDC and Service Canada have enacted a program allowing for the accelerated processing of certain Labour Market Opinion applications. The program, entitled the Accelerated Labour Market Opinion (A-LMO) Initiative, allows eligible employers (excluding those in the province of Quebec at present) seeking the admission of higher skill workers (i.e., National Occupational Classification (NOC) levels 0 or A) to benefit from reduced paperwork and faster processing times, while at the same time enhancing the integrity of the Temporary Foreign Worker Program (TFWP).

Some Background

Service Canada is the service delivery arm of the Canadian Ministry of Human Resources and Development Canada. Through the TFWP, this body is tasked by Citizenship and Immigration Canada to assess the impact of the admission of a foreign worker, other than a foreign worker eligible for exemption. This applies to the majority of candidates seeking to engage in temporary work in Canada; exemptions are based on either International Treaties or Canadian Interests.

A Labour Market Opinion is rendered by Service Canada if, after reviewing an application from an employer, they are satisfied that the admission of the foreign worker will not have an adverse effect on the Canadian labour market.

Accelerated Labour Market Opinion Initiative

The A-LMO continues to assess most of the criteria fundamental to a traditional LMO approval. As such, Service Canada will continue to review these cases to determine that the job offer is genuine, that the wage offered to the foreign worker is consistent with that needed to attract and retain Canadians, and whether or not the job offer fills a labour shortage. The program does not, in its current form, address those situations in which the employment of a foreign worker will directly create or retain Canadian employment, or where there is a transfer of knowledge or skills to Canadians. In those cases in which admission is not sought on the basis of a labour shortage, it is expected that the case will be processed in the normal streams and subject to the requirements of such.

Employers will need to meet certain requirements to be eligible in the A-LMO program:

  1. They will need to be the recipient of one or more positive Labour Market Opinion Confirmations within the two years prior to registering;
  2. They will need to consent to post A-LMO Compliance reviews; and
  3. They will not have been the subject of any investigation, infraction, or serious complaint, and do not have any unresolved violations or contraventions under employment and recruiting legislation.

An eligible employer will be able to pursue an A-LMO application if the offer to the foreign worker meets certain requirements:

  1. They will need to agree to all attestations that are part of the A-LMO application process;
  2. The wage offered to the foreign worker will have to be consistent with policies governing prevailing wage; and
  3. They will have met minimum Canadian recruiting requirements prior to offering the position to the foreign worker and submitting the A-LMO application.
  4. They are offering employment in a Management, Professional, or Technical occupation (i.e., NOC 0 or A), other than an occupation in film and entertainment or agriculture sectors.

Compliance

As part of the application process, the employer will agree to potentially undergo Compliance review following the A-LMO approval. It is expected that 18% of A-LMO approvals will be subsequently and randomly selected to undergo this review process. That number is certainly high enough to ensure that employers adhere to requirements of the program and LMOs in general, as there are consequences to the employer and/or present and future LMOs and LMO applications.

A compliance review involves Service Canada’s assessment of whether or not the employer has provided the foreign worker with “substantially the same” wage and working conditions as was offered during a prior A-LMO or LMO application in the two previous years including:

  • that the employer provided the foreign worker the same wages and working conditions as those offered to Canadians in the same occupation and location;
  • that employer can document performance of the minimum recruitment efforts required;
  • that the employment of a foreign worker did fill a Canadian labour shortage;
  • that the employment of a TFW did not adversely impact the outcome of a labour dispute; and
  • that the employer agrees to abide by the relevant laws regulating employment and recruitment.