In the past decade, Canadian employers have increasingly turned to foreign workers to meet their human resources needs. In fact, between 2001 and 2011, the number of Temporary Foreign Workers in Canada more than tripled from 96,390 to 301,211, but due to a tightening of the regulations, had shrunk to 227,024. These ongoing changes make it very difficult for HR Managers to recruit and retain foreign workers without professional guidance.
Managing the flow of foreign workers is challenging. The Canadian government must balance its interest in employing Canadian workers, its obligations under treaties like NAFTA and GATS, its responsibility to ensure that local and foreign workers are not exploited, as well as its need to admit enough immigrants to meet the long term demand for workers.
Consequently, numerous federal and provincial agencies are involved. The regulations change constantly and often without notice. Many employers and HR Managers contract out the function of obtaining work permits and immigration to our firm. Through our experience dealing with these matters on a daily basis, we can save you time, money, and minimize your risk of problems arising.
A Work Permit is an authorization that allows a foreign national who is a Temporary Resident in Canada to work. There are usually 4 conditions specified: the Employer; the Occupation; the Location; and the Duration of the Work permit.
The work permit does not compel someone to work; it merely authorizes the holder to work under the terms and conditions specified. If a work permit holder wishes to work for another employer, he or she may apply for another work permit with new conditions, even if the existing work permit is still valid.
Labour Market Impact Assessment
A Labour Market Impact Assessment (“LMIA”) is an opinion by Service Canada that an employer’s job offer to a foreign national would not have a negative effect on the Canadian job market. Service Canada will consider factors such as job creation, skills transference, work shortages, market wages, recruitment efforts, labour disputes and previous compliance records.
The process usually takes several weeks, and practices will vary at different Service Canada offices across the country. Once we have a positive LMIA from Service Canada, the prospective foreign worker will then apply for a work permit at a Canadian immigration office.
For some qualifying positions – high-demand, high-pay or short-stays (maximum 120 days) – an expedited 10 business day processing is available. More information is available on our Work Permits page or please contact us to discuss your potential hire now.
Service Canada Inspections and Employer Compliance Reviews
LMIAs obtained from December 31, 2014 and onwards are subject to Inspections or an Employer Compliance Review (“ECR”) by Service Canada to determine if an employer is compliant with the terms and conditions of previous LMIAs.
Inspections – as authorized by legislation – may take place for 6 years after the foreign worker is first employed. They may involve accessing employer documents, on-site examinations, and employee interviews.
ECRs are expected to become a routine part of the LMIA assessment. Service Canada may examine an employer’s past LMIA compliance for the period of 6 years prior to a pending LMIA application. The objective is to determine an employer’s compliance with providing (1) the same occupation, (2) substantially the same wages and (3) substantially the same working conditions as agreed to in previous LMIAs. Deviations could be such things as different salaries, positions or locations. Even salary increases or promotions without new LMIAs may render an employer non-compliant.
Non-compliant employers may receive severe sanctions, including a 2 year ban, a negative LMIA, or revoking of previous LMIAs. An Employer’s name and address may even be published on the Service Canada website as a “blacklisted” organization, which would obviously have negative implications for an employer’s reputation.
With the numerous concerns involved in a LMIA application – risk and time-value of refusals, business reputation, management resources and handling Inspections or ECRs – you can trust Lowe & Company to mitigate these risks for you and your business. In addition to preparing well-documented and well-presented LMIA applications, we also offer employers a Legal Review for your existing foreign hires. Our Legal Review reports on the state of your foreign workers and whether or not anything should be done, so that you can be at ease knowing you are in compliance with Service Canada.
Beyond LMIA compliance, we will also examine your work permit compliance including term limits if applicable and identify immigration options to meet future human resource demands before it is too late.
American or Mexican citizens with the required educational credentials and pre-arranged employment in Canada may qualify for a NAFTA Professional work permit. These work permits can be processed fairly quickly, and can be valid for up to 3 years at a time. Some of the qualifying professions include accountants, computer systems analysts, graphic designers, engineers, pharmacists, scientists and more.
If your company wants to transfer an overseas employee to Canada to either work for the Canadian branch of your company, or set up a Canadian branch of the company, the employee may qualify as an intra-company transferee. To qualify as an intra-company transferee, an employee must:
- Have worked with a parent, branch, subsidiary or affiliate of the Canadian company for at least one year in the past three years; and
- Be working in either:
- a senior executive position;
- a senior managerial position; or
- a position requiring specialized knowledge about your firm’s products, processes or services; and
- Be transferred to Canada for an equivalent position.
Work permits may be issued for periods from one to three years.
Often, companies need to bring in people from their overseas affiliates for short durations. Business Visitors are people who can engage in international business activities in Canada without directly entering the Canadian labour market. They do not require a Work Permit.
Examples of activities for Business Visitors may include:
- People purchasing Canadian goods or services, or receiving training or familiarization for them;
- People giving or receiving training with a Canadian affiliate of their overseas employer;
- People selling goods to Canadian customers, though not to the general public.
- After sales service for setting up, testing, installing, or servicing commercial or industrial equipment (not including “hands on” installation generally performed by construction trades). This can also include certain warranty work.
We have used the Business Visitor exemption in many different situations. Though usually short term, we have obtained Business Visitor documentation for clients for up to 1 year or more, assuming that all other qualifications are met.
Immigration Options for Workers
Citizenship and Immigration Canada has been amending their immigration policies to retain only the best and the brightest Temporary Foreign Workers. There are 4 programs available: Federal Skilled Workers Class, the Canadian Experience Class, Federal Skilled Trades Class, and various Provincial Nominee Programs (administered by the provinces). Some of these have time limits for filing; we have had clients who have missed opportunities because they did not file their immigration applications in time. For more information, please see our Skilled Workers page or contact us.
When searching for the cream of the crop, offering a position or work environment that facilitates permanent immigration can help you attract the best candidates from a world of competitors. You also benefit by retaining all the training and experience invested into your skilled foreign workers.