Author: Kranc Associates

 

The Temporary Foreign Worker Program (TFWP) is the program through which employers seek permission to secure foreign workers, typically because a Canadian could not be found for the position. For an employer to hire a foreign worker, they must secure, through the TFWP, a Labour Market Impact Assessment (LMIA). [Note that this is distinct from the Immigration Mobility Program (IMP), which allows the hiring of a foreign worker without an LMIA. IMP work permits include intra-company transfers and free trade professionals.]

The Canadian government has announced some major changes to the TFWP. The first relates to the method of substantiating an employer’s ability to support a foreign worker. The second relates to the consideration of whether a worker is considered low wage or high wage, with consequences that flow therefrom.

Substantiating an Employer’s Ability to Support a Foreign Worker

An LMIA application has various facets including, for instance, specified recruitment guidelines, and wages and working conditions that must be offered. But the application by the employer must also show the employer’s legitimacy and ability to support the worker, in the sense that it has the financial and/or other resources necessary to ensure that it can meet its obligations.

To substantiate an employer’s viability in this regard, various types of information can be presented including certain tax and payroll records. However, in some case, rather than present such documents, employers have been able to provide an attestation from a qualified lawyer or accountant attesting to the company’s financial viability. This may be particularly relevant in a start-up situation. However, this has been problematic for various reasons including the question of the appropriateness of a lawyer or accountant in attesting to what is effectively future viability.

The government has now announced that such attestations will no longer be accepted. This seems to have pros and cons. On one hand, the difficulties in securing such attestations based on considerations noted above, will no longer arise. On the other hand, it will put a greater onus on employers to present more ‘tangible’ evidence of viability and legitimacy.

Low/High Wage Differentiation

LMIAs are divided into low wage and high wage. Low wage positions have some further safeguards for workers relating to, e.g., housing, recruitment, and transportation. Low wage occupations also have various restrictions in terms of caps of foreign workers, etc. The dividing line for low vs. high wage occupations is set by determining each province’s median wage.

The government has now announced that effective November 8, 2024, the dividing line between what is considered low wage and high wage will no longer be the provincial median wage. Rather it will be the provincial median wage plus 20%.

This will of course increase the percentages of LMIA applications that will be considered low wage. This may have implications for some employers who will now need to meet the more stringent requirements, and will be subject to the low wage regime.

[Note separately that employers seeking LMIAs must also ensure that foreign workers are paid appropriate wages, essentially, to ensure that Canadian workers are not undercut. The minimum wage to be paid for a particular position in a particular geographic location is a posted ‘median wage’ on the federal government’s job bank (in a range of low/median/high).]

Employers, and those advising employers, should ensure that they consider the issues and how the issues may impact relevant entities.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Intra-company transfers (ICTs) are a category of work permit based on an exemption to the need for a Labour Market Impact Assessment (LMIA). LMIAs require a testing of the Canadian labour market. ICTs are an important tool to allow corporations with operations in Canada and abroad to move senior personnel (senior managerial or ‘specialized knowledge’) to Canada relatively easily (without testing the labour market).

Very broadly, the general requirements for ICTs have been:

• Confirmation that the Canadian and foreign companies are related
• Confirmation that the employee being transferred has senior managerial/executive capacity or specialized knowledge
• Confirmation that the employee has been with the foreign entity for at least one year (and is currently working there).

Note that there is not just one legal basis for an ICT. ICTs can be processed in accordance with one of many free trade agreements (e.g. CUSMA, CETA, CPTPP, etc.), or, if no free trade agreement applies, then in accordance with the Immigration and Refugee Protection Regulations (IRPR). There are some nuanced differences under some of the legal sources, but generally, the above guidelines apply across the board.

The Canadian government has now updated some of its guidance in the considerations of approvals of ICT applications for IRPR-based ICTs. To be clear, free trade agreement-based ICTs do not appear to be impacted at this time, though it would seem that some crossover is inevitable.

Under the new guidelines, officers adjudicating IRPR-based ICTs must now consider various items including, but not limited to, the following:

• For the company:
  • Whereas previously, median wage requirements did not apply to managers/executives, now they do (as well as for specialized knowledge workers, as before).
  • The foreign organization must be a multinational This means that the it must have active businesses in at least two countries, before establishing in Canada.
    • Start-up enterprises in Canada will be impacted. It will be more difficult to use this provision for start-up situations. Those seeking to enter Canada to establish a new business, will need to do so as business owners coming for a temporary purpose (another LMIA exemption [C11]).
  • ‘Affiliation’ of the entities is to be determined by ownership and control, and may not include relationships based on contracts, licensing, franchising, supplier/client, or other similar non-ownership/control based relations.
  • The position abroad must remain available to the foreign worker once the task in Canada is complete.
    • This does not seem to change the reality that workers can have ‘dual intent’, and may seek permanent residence after time in Canada.
  • The Canadian operation must be a physical commercial premises. It cannot be shared office space, a residential home, or any kind of virtual business or one just having a mailing address.
• For the employee:
  • The Canadian job must be ‘equivalent to’ the one held abroad. Though it may require more guidance, it is not uncommon for such instruction to be flexible enough to encompass work within the same NOC code, even if slightly different.
  • Remote work will generally not be allowed; the reason to be in Canada must be justified.
  • Only full-time prior work will be counted.

There are certainly more details to these new provisions, and employers should consult with counsel with regard to specific needs.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Historically, visitors in Canada could not seek a work permit from within Canada (with limited exceptions). They would need to seek their work permits either, in the case of visa-requiring nationals, at a visa post/online, or, in the case of non-visa-requiring nationals, at a port of entry.

During COVID, Canada relaxed this policy, and allowed visitors to seek their work permits from within Canada. The relaxed policy was introduced in August, 2020, and was set to expire on February 28, 2023. However, just prior to the expiration date, the government of Canada extended the relaxed provision to February 28, 2025 (see the initial ImmPulse™ newsletter on the topic here, and the ImmPulse™ newsletter on the extension here).

However, today, in a rather surprising announcement, the government suddenly terminated the policy, effective immediately. Post August 28, 2024, the rules revert to their pre-COVID iterations – i.e., applicants physically in Canada must apply from outside the country (again, either at a visa post/online, or at a port of entry, as the case may be).

Applications already in process will not be impacted, and any exceptions previously allowed remain in place, but otherwise, new inland visitor-to-work permit applications are no longer permitted.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Immigration, Refugees and Citizenship Canada (IRCC) recently provided some updates on how officers should consider particular issues related to intra-company transfer (ICT) applications. Generally speaking, ICT applications allow employees of a foreign corporation which has a relationship with a Canadian company (e.g. parent/subsidiary or sister companies), to secure a work permit in Canada. The foreign employee must be in either a senior managerial/executive position, or have ‘specialized knowledge’.

Some highlights of the new guidance are:

• With regard to start-up operations in Canada:
  • The employee being transferred must have been employed with the foreign corporation for at least one year in an executive, managerial, or specialized knowledge capacity. (Previous wording indicated only ‘relevant capacity’.)
  • The corporation must present a business plan with clear milestones and goals, and set out the employee’s role.
• With regard to Senior Executives and Managers:
  • The employee being transferred must have worked for the foreign company continuously for at least one year in a similar role.
  • The Canadian role must involve management of the organization or a significant element thereof, with decision-making powers and responsibilities clearly set out.
• With regard to Specialized Knowledge Workers:
  • In keeping with the concept that the employee being transferred have advanced experience or unique knowledge not readily available in Canada, the person must have held a position in the foreign company for at least one year in a specialized role.
  • The specialized knowledge must be the justification for the need to transfer the employee.

Though there were guidelines for these issues previously, the new versions are more precise. Employers should be careful to ensure that they meet the guidelines set out, and document the evidence required to establish the elements noted. Further details on this topic can be found at the following IRCC link: IRCC ICT Guidelines.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Effective July 1, temporary agencies and recruiters require a license to conduct business in Ontario. This is true even if the agency is located outside Ontario, but assigns workers to work in Ontario.

This requirement may impact some immigration-related matters, including situations where a third party is technically the employer of a foreign worker, sending that foreign worker to service a client of theirs in Ontario.

Further details can be seen at https://www.ontario.ca/page/licensing-temporary-help-agencies-and-recruiters#section-1.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

The Canadian government has announced that there will be some modifications to the Temporary Foreign Worker Program (TFWP). The TFWP is the program that deals primarily with allowance for work permits through the issuance of Labour Market Impact Assessments (LMIAs) to employers who can substantiate a need to hire workers from outside Canada.

The TFWP is distinct from the International Mobility Program (IMP), which allows for non-LMIA work permits in categories such as intra-company transfers or professionals from certain countries. It appears, at least based on information currently available, that the following information impacts the TFWP only.

The government is updating some provisions in essentially a ‘ramp-down’ of changes that were implemented during the COVID era, but which now seem obsolete, and/or which may now be harmful to the labour market. As of May 1, 2024:

• New LMIAs will be valid for six months only, rather than twelve months.
  • Note that this is the period of time within which the foreign worker must apply for a work permit after LMIA issuance, not the period of time granted to work in Canada.

• Employers will be allowed to secure only 20% of their workforce through the TFWP in the low wage stream.
  • Excluded from the lowered cap are employers in the health care and construction industries, where the 30% cap will continue to apply.
• Employers will be required to engage in other recruitment techniques before seeking LMIAs, including, for instance, the recruitment of asylum seekers with valid work permits.

Affected parties should consult with appropriate counsel to consider any issues directly applicable to them.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

In recent years, Canada had permitted Mexicans to travel to Canada visa free. They would, as most other non-visa nationals, require only an Electronic Travel Authorization (eTA) to travel by air.

Effective today, February 29, 2024, at 11:30pm Eastern, but subject to certain exceptions noted below, Mexicans will again require visas to travel to Canada. Any eTA issued since the removal of the Mexican visa requirement will cease to be valid, and any eTA application in process will be terminated. Even if travel arrangements were already in place before the implementation of the new requirement, travellers will need to take appropriate new measures. Note that:

• Existing eTAs will remain valid for those with work or study permits.
• For those already in Canada, they may continue to remain in Canada for as long as authorized (generally up to 6 months from the date of arrival). Once a person leaves Canada, he or she will be bound by the new rules.
• For those with eTA applications in process who may still qualify for an eTA (see exceptions below), a new eTA application will need to be lodged.

There are some exceptions to the need for a visa, similar to what has been introduced for other countries, including, for instance, Brazil and Argentina. Mexicans may travel to Canada by air on an eTA if they:

• Held a Canadian visitor visa in the past 10 years, or
• Currently hold a valid US non-immigrant visa.

Please note that an eTA can be used only for travel by air, not travel by land (or sea).

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

This newsletter typically addresses issues relating to ‘corporate immigration’ in Canada, that is, issues dealing primarily with work permits and economic class permanent residence. Recently, however, there have been some updates in the area of study permits (and related work issues) that may be of interest to those dealing with foreign workers, given that the changes may impact work issues for students – while they study, or after they complete their studies.

Some notable changes to the study permit system are:

• A cap will now be established for the number of study permits to be issued. For 2024, the cap will be 360,000.
  • Further, the cap will be subdivided into allowances per province, based on weighted population calculations.
  • Current study permit holders will not be affected.
  • Those studying at the elementary, secondary, master’s or doctoral levels will not be subject to the cap.
  • The program is set to run for two years under this model, and then be re-evaluated.
• Every study permit application will now require an attestation letter from a province or territory (the format of which is to be established by each province by March 31, 2024).
• Off-campus work, which had temporarily been allowed without restriction since late 2022, will again be limited to 20 hours per week for full time students, after April 30, 2024.
  • There are some details depending on the date of application, but for our purposes, this is the general rule.
  • Full time work during breaks (e.g. summer) will continue to be allowed.

The bigger issues, from a corporate immigration/employer of foreign worker perspective, relate to the Post Graduate Work Permit (PGWP) program, which allows students to work in Canada after they complete their studies. In that regard:

• Beginning September 1, 2024, foreign students who start a program that is part of a curriculum licensing arrangement will no longer be eligible for a post ­graduate work permit after graduation. Under curriculum licensing agreements, students physically attend a private college that has been licensed to deliver the curriculum of an associated public college.
• Graduates of master’s degree programs will be eligible to apply for a 3-year work permit (rather than be limited based on the length of the program, as is otherwise applicable).
• Open spousal/partner work permits will be available only to spouses/partners of foreign students in master’s and doctoral programs.

Foreign students, and prospective employers, should of course be aware of such issues to ensure that they remain in compliance when seeking work/hiring, respectively.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Canada’s Temporary Foreign Worker Program (TFWP) is designed to allow employers to secure foreign workers where there is a labour shortage in a particular sector or industry. Establishing that there is indeed a shortage of workers in a particular field/industry is done through the process of securing an ‘LMIA’ – Labour Market Impact Assessment. TFWP guidelines are set by Employment and Social Development Canada, and administered by Service Canada. [Note that the TFWP is distinct from the International Mobility Program (IMP), where, for various policy reasons, Canada allows employers to secure foreign workers without an LMIA. This would include intra-company transfers, various treaty-based professional categories, etc.]

The government had introduced some measures in April 2022 (see our ImmPulse™ newsletter on the issue here). Today, the government announced some updated/new provisions relating to the TFWP, expounding on the April 2022 pronouncements.

Included in today’s new pronouncements are the following, in effect until August 30, 2024:

• Employers in certain sectors will continue to be permitted to retain up to 30% of their workforce for low-wage occupations (below provincial median wage), through the TFW. Sectors include:
  • Food Manufacturing
  • Wood Product Manufacturing
  • Furniture and Related Product Manufacturing
  • Accommodation and Food Services
  • Construction
  • Hospitals
  • Nursing and Residential Care Facilities
• The duration of employment for occupations below provincial median wage guidelines, will be for up to two years
• LMIA validity periods will be available to a maximum of 12 months

Further, as of January 1, 2024, employers will now be required to annually review foreign workers’ wages to ensure that they meet the then current prevailing wage. This may have been true in any event, but the issue is being more definitively codified. Certainly, this is of note to organizations who not only will be seeking new LMIAs/foreign workers, but also to organizations who have already been granted LMIAs and have foreign workers in Canada. Appropriate review and action should be considered.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

In the August 8, 2023 issue of ImmPulse™ (see https://bit.ly/3KyQLUq), we provided information about a new program through which the government of Canada will offer streamlined processing in work permit matters under the Temporary Foreign Worker Program (TFWP; i.e. work permits requiring a Labour Market Impact Assessment). The program will be available to employers who have had at least 3 positive LMIAs in the past five years in the relevant occupations.

In the first phase, launching in September, certain occupations in the agricultural sector will qualify, for example, livestock labourers and nursery labourers.

The second phase will launch in January 2024, and the list of relevant occupations is now available, and can be found at https://www.canada.ca/en/employment-social-development/services/foreign-workers/recognized-employer/working-conditions.html. There are some 88 occupations on the list. Without reiterating all the occupations, some examples, showing the breadth of job categories covered, include:

• industrial engineers
• architects
• registered nurses
• veterinarians
• occupational therapists
• cabinet makers
• cooks
• food and beverage servers
• appliance repairers
• labourers in chemical products processing

Of course, the full list should be reviewed to determine if there is a relevant category for any particular situation, and the requirements of the program (also found on the web page provided) must be met, but there is an opportunity here for employers to take advantage of a streamlined LMIA/work permit process, which may be of benefit.

The information in this article is for general purposes only, and not intended as legal advice for any situation.