Tag Archives: work in canada

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).

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.

Facilitated Processing of IT Workers Extended in BC

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The province of British Columbia has extended the Facilitated Processing of Information Technology Workers program until December 31, 2011. The program has been terminated in all other provinces.

At present, although employers do not need to first apply for a Labour Market Opinion in order to employ an eligible IT worker, they are required to notify Service Canada and the Ministry of Regional Economic and Skills Development of an intent to offer the position to a foreign worker prior to being able to proceed with an application to Citizenship and Immigration Canada.

Canada Colombia Free Trade Agreement Enacted

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The Canada-Colombia Free Trade Agreement (FTA), which was signed on November 21 2008 was enacted on August 15th 2011. Similar to other FTAs currently in effect (e.g, NAFTA, Peru, Chile), this program includes provisions for the reciprocal admission of business visitors and foreign workers. Nationals of Colombia are therefore newly eligible to seek work permits with exemptions from the requirement of a Labour Market Opinion (LMO) if they are considered Professionals, Traders, or Investors. Although this FTA also includes provisions for intra-company transferees and spouses, these are essentially mirrored in existing categories under Significant Benefit to Canada.

Until the program is further elaborated, the Canada-Peru Free Trade provisions are being used as a template for assessment of candidates. This includes the lists of excluded and included Professionals, Technologists, and Technicians. The Colombia FTA is the first to include provisions specific to spouses, whereby spouses of foreign workers admitted under the program can seek admission under a newly coded LMO exemption.

Specialized Knowledge Intra-Company Transfers

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Foreign nationals seeking transfer from a foreign company to a parent, subsidiary, branch, or affiliate of that company in Canada may be eligible to seek a Labour Market Opinion exemption and work permit through the Intra-Company Transfer provisions, including the Specialized Knowledge Category. This has historically been a subcategory that has been more vague, as clear and concise definitions of eligibility do not exist. Unlike an “executive” or a “senior manager” for example, the ability to pinpoint the definition of a specialized knowledge worker is more difficult.

Following the termination of the Facilitated Processing of Information Technology Workers Program in most provinces in Canada, an increase in the volume of these Transfer applications has been noted, and there has been a desire to more clearly define the requirements of eligibility. Beyond the fundamental definitions, factors that may be considered in assessing a specialized knowledge worker include the following:

Education and Skill: An assessment of the education credential needed to perform the work is a consideration, and often the corresponding assessment of skill classification is a critical factor. Generally, positions requiring college credentials or higher are considered suitable. Beyond education credentials, consideration is given the to skill classification of the occupation in both Canada and abroad. Barring exceptional circumstances, that skill classification for the position in Canada should be the same as, or higher than, the position held by the candidate abroad.

Knowledge and Experience: Candidates should typically possess specialized or advanced knowledge specific to a given industry, which would generally extend beyond what may be common in that particular industry. It is not necessarily the case that such knowledge must be proven absent from Canada, however. Specialized Knowledge transfers would favour candidates who have extensive industry experience, and such experience is sufficiently complex that it would be difficult to acquire or otherwise imbue into another worker.

Wage: The wage of the candidate should be in line with the average wage of the comparable occupation in Canada. Although prevailing wage statistics would not necessarily be applied as rigorously as in a LMO application, officials are recommended to give consideration of the comparability of the wages.

Quebec Changes CAQ Requirement to 30 Days

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The province of Quebec has changed the duration of work in that province that is subject to the requirement of a Certificat d’acceptation du Québec (CAQ). Previously work in that province of a duration of 5 days or less was exempted from the CAQ process; this has now been changed to allow exemption from the requirement for any offer of work in Quebec of a duration of 30 days or less (any occupational classification).

Foreign nationals seeking to work in Quebec for a duration of greater than 30 days must seek the CAQ from the Ministère de l’immigration et des communautés culturelles du Québec. Cases in which the work in Canada is subject to an exemption from the requirement of a Labour Market Opinion Confirmation are exempt from this requirement.

Revisions to Temporary Foreign Worker Program

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On April 1 2011, Citizenship and Immigration Canada implemented changes announced in 2010 which constitute a significant increase in the level of scrutiny that applications in the Temporary Foreign Worker Program (TFWP) will be subject to. Officials reviewing applications, including HRSDC; CIC; and CBSA, now have more power and obligation to evaluate the job offer, the employer, the and the employer’s history in the TFWP.

When an offer is made to a foreign national, officials must assess the following factors:

(1) the genuineness of the job offer, including whether or not the employer is continuously and actively engaged in commercial activities in Canada; whether the position offered is credible in the light of the business in which the employer is engaged; and whether or not the employer is capable of fulfilling the terms of the offer of employment.

(2) the employer’s history of compliance with requirements of the TFWP and of providing “Substantially the Same” wages, conditions, and responsibilities to the foreign national as were approved by the Canadian government officials (STS).

(3) the consistency of the request with agreements established with the various provinces and territories and Citizenship and Immigration Canada.

Applications can be refused if the above are not consistent with program requirements, and employers could potentially be prohibited from benefiting from the services of a foreign worker for a 2 year duration if they are found to have failed to comply with STS requirements.

Foreign nationals may also now be required to adhere to a 4 year maximum duration of work in Canada. After a cumulative duration of 4 such years, it would be necessary for a period of 48 months to pass prior to which the foreign national would become eligible for work in Canada in the TFWP again. Exemptions to this rule do exist, which may include candidates admitted pursuant to international treaties (e.g., NAFTA), candidates admitted in certain high skill occupations, and those contributing a significant benefit to Canada.