In the past decade, Canadian employers have increasingly turned to foreign workers to meet their human resources needs. With this demand for foreign workers, the Canadian government has had to balance its:
- interest in encouraging employment of Canadian workers;
- obligations under treaties like NAFTA and GATS;
- responsibility to ensure that local and foreign workers are not exploited; and
- need to admit enough immigrants to meet the long term demands of the Canadian workforce.
With constantly shifting economic, social and political conditions, government policy for foreign workers changes frequently which makes it very difficult for HR Managers to recruit and retain foreign workers without professional guidance.
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 daily, we can save you time, money, and minimize your risk of problems arising. We have assisted many employers and foreign workers with receiving work authorizations through:
- work permits and exemptions; and
- Labour Market Impact Assessments, if necessary.
Once Canadian employers obtain work permits for foreign workers, they must also pay close attention to the Canadian government’s Employer Compliance requirements.
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: Employer, Occupation, Location; and Duration.
The work permit does not compel someone to work. Work permits merely authorizes the holder to work under the terms and conditions specified. If a work permit holder wishes to work for another employer, then 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.
Service Canada Inspections and Employer Compliance Reviews
Employers obtaining employer specific work permits for foreign workers must now consider the impact of a future Employer Compliance Review (“ECR”) by Service Canada to determine if the employer has been compliant its Employer Compliance obligations.
ECRs could take place anytime within the 6 years after the foreign worker receives his or her work permit. The ECR may involve accessing employer documents, on site examinations, and employee interviews. The objective of the ECR is generally to determine an employer’s compliance with providing employment on the terms offered to the employee including wages and working conditions, as well as the employer’s compliance with relevant laws. Common deviations include differences in salaries and responsibilities than those set out in the work permit request. Even salary increases or promotions may render an employer non-compliant.
ECRs are expected to become a routine part of an employer’s use of employer specific work permit programs. Non-compliant employers may receive severe sanctions, including bans from using employer specific work permit programs, a negative LMIA, the revoking of previous LMIAs and fines of up to $1 million dollars. 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.
When preparing a work permit request, it is important to consider ECRs to avoid non-compliance in the future. After a work permit is issued, it is important to retain documentation to prove compliance on an ongoing basis.
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 generally be processed quickly and may 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 1 year in the past 3 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 1 to 3 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 but should still be documented under the work permit exemption for Business Visitors.
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 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.
Immigration Options for Workers
Canada has routinely amended its immigration policies to retain only the best and the brightest Temporary Foreign Workers. Our knowledge of pathways for work permits and for immigration helps employers and foreign workers to determine suitable pathways in this ever-changing environment.