to Bring a Foreign Worker into
Six-Minute Employment Lawyer 2011
Guberman, Garson Immigration Lawyers
The following is
a brief overview of some of the issues connected with bringing a foreign worker
applicable legal provisions in connection with bringing a foreign worker into
When Does a Foreign Worker Need a Work Permit?
The Act states
that a foreign national (someone who is neither a citizen nor permanent
Regulations do state that there are specific instances when it is possible to
that allows business visitors to work without a work permit is one that is
certainly open to interpretation. According to section 187 of the Regulations a
business visitor is a foreign national who “seeks to engage in business
For example the
senior executive of a transnational corporation travelling to
exemption to the requirement to obtain a work permit is if one is providing
“after sales and service” (for example installation or repair under warranty)
for goods that were manufactured abroad and were sold into
How Can One Qualify for a Work Permit?
Once it is
determined that a work permit is required then it has to be determined under
which category one will apply. The default is that one must apply for and
receive an opinion from Human Resources and Skills Development Canada (“HRSDC”)
that the job is genuine and “the employment of the foreign national is likely
to have a neutral or positive effect on the labour market in
However there are a number of exceptions to the requirement to obtain a labour market opinion. If one is a national of a country that is a party to the NAFTA (American and Mexican citizens) and is a professional as described in section 1603.D1 of the NAFTA then so long as one has a job offer one can obtain a work permit for a specific employer.
If one is an
executive, senior manager, or a worker with specialized knowledge and one has
been employed abroad for at least one year in the previous three year period by
a related entity of the employer in
There are also a number of other exceptions for those who can receive work permits without a labour market opinion including those who obtain working holiday visas, those who are eligible under a special project for some IT workers which was previously available throughout Canada but is now only of benefit to employers in Québec and British Columbia, those who have studied at a designated Canadian post secondary institution, and those who have been nominated for permanent residence by a province pursuant to a federal-provincial agreement. These are only examples: there are a number of other categories where it may be possible to obtain a work permit without the benefit of a labour market opinion.
The Family of a Foreign Worker
For the most part once a foreign national qualifies for a work permit (if the foreign national is performing skilled work) then his or her spouse and dependent children will also be entitled to enter Canada though they will require the appropriate documentation. In most cases a spouse will be entitled to an “open work permit” meaning he or she can work for any employer. Depending on the circumstances the children may require study permits.
Where and How Does One Apply for a Work Permit?
If a foreign
national requires a labour market opinion then the employer must apply for that
in advance at a regional office of HRSDC. Once one has that opinion (or if one
is not obliged to obtain it) then one has to determine if one is from a visa-
exempt country. Foreign nationals from some countries (for example, the
How Long Does it Take for a Work Permit Application to Be Processed?
The length of time to process a work permit varies considerably. If a labour market opinion is required then the time to process such an application will generally be about a month or two (though the processing times for different regions vary from time to time). If one is from a visa-exempt country and a labour market opinion is not required one can simply go to any port of entry and the application is processed right away.
If one is from a country requiring a visa and one must apply at a Canadian embassy, High Commission or consulate abroad then the processing times can vary considerably: the time to process applications can vary from several days to several months.
Some Issues to Be Aware Of
There are many issues that can arise when applying for a work permit. The following are some examples of issues that arise frequently.
The law surrounding the entry of foreign workers can be complex and its interpretation and application can vary considerable depending on who the decision maker is. It is advisable to consult with an immigration lawyer who has expertise in this area.
 S.C. 2001. c. 27 as amended
 SOR/2002-2007 as amended
 The Act, sec 30(1)
 The Regulations, sec. 196
 The Regulations, sec. 2
 The Regulations, sec. 186
 NAFTA, Part V, Chapter 16; As for those to whom the NAFTA does not apply, according to Citizenship and Immigration Canada’s Foreign Worker Manual section 187 of the Regulations can include after sales and service.
 The Regulations, section 203.