Effective: Immediately
Who is Impacted: All Foreign Workers (subject to exceptions set out) and their Employers
The Issue
Time goes quickly. On April 1, 2011, Citizenship and Immigration Canada (CIC) instituted a regulatory measure providing that temporary work permits could only be extended for a total work time of four (4) years. The clock for the new provision began to run on April 15, 2011 – that is, any time already spent in Canada as of that time was not included in the cap, so the first date on which someone could possibly reach the 4 year cap would be April 1, 2015. The future has now arrived.
Factors/Strategies to Consider
Subject to exceptions set out below, any foreign worker in Canada who has now hit the 4 year cap would be ineligible to renew his/her work permit. A few notes about the nature/implications of the 4 year cap provision, and strategies to recognize:
- The 4 year cap is ‘real time’. That is, work permits may have been issued for a period totalling 4 years, but it is only the actual time that someone has spent in Canada that is counted. So, a foreign worker with a 2 year work permit who has been working in Canada only 6 months would be considered to have used only 6 months, not 2 years. That being said, the worker must be able to substantiate the facts; he/she must therefore maintain documentation such as passport stamps, airline tickets, or other evidence of when he/she was in or out of Canada.
- The ‘solution’ to the cap is often an application for permanent residence. This should be made at the earliest possible opportunity (though, under the new Express Entry system, processing for qualified applicants should be faster than it has been in the past). This will avoid the potential gap between reaching the 4 year gap, and achieving permanent residence. This gap can cause further issues including:
- The need to depart Canada to comply with the terms of the work permit, and
- The possibility that the permanent residence application could be negatively impacted by the fact that the person is no longer working in Canada. For instance, this could mean that a previously existing LMIA on which the work permit was based may have lapsed, impacting the points required.
- Once a person reaches their cap, they will not be entitled to another temporary work permit for a further 4 years.
Exceptions:
The 4 year cap is not universal. Exceptions to the cap include:
- Managerial level (NOC 0) or professional level occupations (NOC A)
- Those who have applied for permanent residence, and have received an approval letter. (If necessary, one could also therefore get a bridge work permit.)
- If a work permit is based on a free trade agreement. At this time, these agreements would be:
- North American Free Trade Agreement (NAFTA)
- Canada-Chile Free Trade Agreement (CCFTA)
- Canada-Peru Free Trade Agreement (CPFTA)
- Canada-Colombia Free Trade Agreement (CCoFTA), and
- Canada-South Korea Free Trade Agreement (CSKFTA)
- (Immigration provisions under a new European free trade agreement may also come into effect in the near future)
- Those exempt from the LMIA process, e.g., spouses or common law partners of highly skilled foreign workers, those under reciprocal benefit, etc.
- Note though that those exempt from the 4 year cap may still be subject to other caps. For instance, Managerial level Intra-Company Transfers are subject to a 7 year cap, and Specialized Knowledge Intra-Company Transfers are subject to a 5 year cap.
What Employers Need To Do:
To summarize, the 4 year work permit cap is now in play, effective April 1, 2015. Though no one would be caught by theses provisions until now, those who have failed to fully consider the matter may wish to take another look at their circumstances, and what actions they may need to take that may allow them to extend their maximum time, if desired. Moving forward, employers and employees should plan for the future taking this provision into account, and noting some of the issues and strategies set out above.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.