How to Bring a Foreign Worker into Canada

 

                                   Law Society of Upper Canada

                             Six-Minute Employment Lawyer 2011

 

 

 

 

 

 

 

 

                                                                  

 

 

 

                                                                               Randolph K. Hahn

                                                         Guberman, Garson Immigration Lawyers

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The following is a brief overview of some of the issues connected with bringing a foreign worker into Canada. This paper is a summary of a brief presentation for the program The Six-Minute Employment Lawyer 2011; it is not a detailed analysis of the various issues.

 

Generally the applicable legal provisions in connection with bringing a foreign worker into Canada are to be found in the Immigration and Refugee Act [1] (the “Act”) and the Immigration and Refugee Protection Regulations [2] (the “Regulations”). As well international treaties (which are referenced in the legislation and regulations) can also be a source of authority for provisions allowing for the entry of foreign workers into Canada. Chapter 16 of the North American Free Trade Agreement (the “NAFTA”) is of particular importance.

 

When Does a Foreign Worker Need a Work Permit?

 

The Act states that a foreign national (someone who is neither a citizen nor permanent resident of Canada) cannot work unless authorized to do under the Act. [3] The Regulations state that a foreign national must not work in Canada unless authorized to do so by a work permit or the Regulations. [4] The Regulations define work as “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.” [5]

 

However the Regulations do state that there are specific instances when it is possible to work in Canada without a work permit. [6] The stated exceptions include when one is a business visitor to Canada, when one is a clergyman whose main duties include providing spiritual counseling, and when one is a provider of emergency services. There are a number of other exceptions.

 

The exception 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 activities in Canada without directly entering the Canadian labour market.” It also states that the following are to be considered business visitors:

 

  • foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services;
  • foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada if the production of goods or services that results from the training is incidental; and
  • foreign nationals representing a foreign business or government for the purpose of selling goods for that business or government, if the foreign national is not engaged in making sales to the general public in Canada.

 

For example the senior executive of a transnational corporation travelling to Canada for meetings with his Canadian counterparts will generally not need a work permit. But if the senior executive is actively overseeing the operations of a Canadian entity and is involved in operational issues, even if she divides her time between Canada and elsewhere then a work permit will generally be required.

 

Another important 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 Canada and the contract of sale explicitly allowed for this. [7] However hands on building and construction work does not come within this exception.

 

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 Canada.”[8] This is called a labour market opinion. Generally this will mean showing evidence of recruitment efforts.

 

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 Canada, then one might qualify as an intra-company transferee.

 

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 United States, most of Western Europe, Australia, Japan) do not require visas. This means that they can apply for the work permit at the port of entry. Otherwise a foreign national must apply for a visa along with the work permit at a port of entry or apply at a Canadian embassy, Canadian High Commission, or Canadian consulate abroad. Even if someone is entitled to apply for a work permit at the port of entry a number of practical considerations need to be considered; in many circumstances it may be preferable to still apply through an embassy, High Commission or consulate.

 

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.

 

  • If a person has committed or been convicted of an offence abroad that corresponds to an offence under the Criminal Code of Canada then he or she may be inadmissible for criminality. For example someone who was convicted of driving while impaired years ago may be inadmissible to Canada and there are strategies that need to be considered when deciding whether it might be possible to overcome the inadmissibility;
  • Those who are working for Québec-based employers who require a labour market opinion will also require a “Certificat d’acceptation” (CAQ) from the Province of Quebec;
  • Foreign nationals from certain countries will require medicals before being granted work permits;
  • Not disclosing specific information even if not asked directly can mean there has been misrepresentation which can lead to serious consequences;
  • If a foreign national is ultimately interested in becoming a permanent resident of Canada then one must plan for that and consideration needs to be given to the timing of the work permit as well as the category through which one is applying for the work permit.

 

In Conclusion….

 

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



[1] S.C. 2001. c. 27 as amended

[2] SOR/2002-2007 as amended

[3] The Act, sec 30(1)

[4] The Regulations, sec. 196

[5] The Regulations, sec. 2

[6] The Regulations, sec. 186

[7] 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.

[8] The Regulations, section 203.