Tag Archives: work visa

New Temporary Resident Visa Requirements

Posted on by
Reply

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

Posted on by
Reply

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

Posted on by
Reply

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.

Impact of Canada-USA Border Deal for Work Permit Holders

Posted on by
Reply

In December of 2011, the Prime Minister of Canada and President of the USA made a joint announcement regarding plans to implement a cooperative effort to improve security and efficiency at the ports of entry (including border crossings and airports) between the two countries. The effort has numerous facets, which may see RCMP and US police officials obtain jurisdiction on either side of the border, improved airport security, sharing of infrastructure between certain border crossings, harmonization of rules, sharing of information, and more.

The prospect of sharing of information has certain advantages and disadvantages to holders of Canadian work permits. A principal goal of the effort would be to have better information on the movement of temporary residents relative to their permission to stay in Canada. For example, there would be more knowledge of whether or not a given individual respected the conditions of a temporary stay in Canada, leaving or otherwise renewing status within the time permitted. If implemented, an individual who overstays could face negative consequences in the case of any future effort to seek admission to Canada.

In certain cases, work permit holders are constrained by time limitations associated with the issuance of a Canadian work visa. For example, intra-company transferees may be  permitted stays of between five and seven years, but such time is assessed only against the duration of time actually spent in Canada. In such a case, better exit controls may serve the purpose of facilitating demonstration of the duration of the actual stay of such a work permit holder, permitting the maximum actual duration of validity of the immigration document.

It is not yet clear how or if this effort will be implemented. There are also differing accounts of the extent and purpose of information sharing. However, this could be a very important development for the two countries.

Transferees may ‘Re-Capture’ time spent abroad

Posted on by
Reply

The provisions of intra-company transfer allow executives, senior-managers, and specialized knowledge workers to seek work permits in Canada without the requirement of a Labour Market Opinion. There are however caps on the maximum duration of such permits: 7 years for executives and senior managers; and 5 years for specialized knowledge workers. The candidate is then required to spend 12 months abroad prior to eligibility for a new permit under the same provisions.

A new direction has been issued by which time spent abroad will not be counted towards these caps. For example, if an executive is spending only 50% of his or her time in Canada as a Transferee, then only 6 months out of a given 12 month period would be counted towards the 7 year cap.

Canada Colombia Free Trade Agreement Enacted

Posted on by
Reply

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.

British Columbia Pilot Project Facilitates Open Work Permits

Posted on by
Reply

The province of British Columbia and Citizenship and Immigration Canada have announced a program which expands the availability of open work permits to family members of foreign workers in that province. Under the newly announced Pilot Project, in effect from August 15 2011 to February 15 2013 and with a cap of 1800 open work permits, the spouses, common-law partners, and working-age dependants of holders of most classes of occupation-specific work permits.

In all provinces at present, the spouses and common-law partners of highly skilled work permit holders, those classified as doing work in NOC 0, A, or B categories, are eligible for such open work permits without any caps. The Pilot project therefore expands this to include most NOC C and D classified occupations (exceptions are Live-In-Caregivers, Seasonal Agricultural Workers, and International Experience Class youth program workers), and to allow dependent children of working age to participate.

Revisions to Temporary Foreign Worker Program

Posted on by
Reply

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.