Author: Kranc Associates

Canada today announced a new Recognized Employer Pilot (REP) program, whereby certain employers will benefit from a streamlined process to secure foreign workers through Labour Market Impact Assessments (LMIAs). The LMIA process is one which requires employers to justify the need for hiring foreign workers. Note that this is part of the Temporary Foreign Worker Program (TFWP), and (at least for now), not applicable to the International Mobility Program (IMP – essentially, non-LMIA work permits).

To qualify, the following requirements will need to be met:

• The employer must have a minimum of three positive LMIAs for the same occupation over the prior five years, and
• The occupation must be from a list of occupations that have been designated as ‘in-shortage’, based on information found at https://bit.ly/3qmrbv8.

The program will first be available to employers in the agriculture sector, starting in September 2023, and thereafter to other sectors, starting in January 2024. Applications will be accepted through September 2024, and recognized employers will be able to seek LMIAs for 36-month periods.

NOTE: One major factor which readers should be aware of is that Global Talent Stream occupations will NOT form part of this program, as they already benefit from their own expedited program.

We will of course provide further details of the program to readers as they become available, but this program may of course be very helpful to many employers seeking to hire foreign workers.

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

Canada has for some time provided ‘enhanced’ immigration processes for certain high-tech industries/workers, as Canada competes for talent on the world stage. Notably, Canada in 2017 launched the ‘Global Talent Stream’ (GTS) which recognizes the demand for high tech workers, and facilitates their recruitment, without some of the burdens otherwise required to secure foreign talent.

Today, Canada launched the ‘Tech Talent Strategy’ (TTS) which improves upon some existing programs, and adds some further opportunities to secure foreign high-tech workers in Canada.

Among other elements of the new TTS are:

• Holders of US H-1B specialty occupation visas will be permitted to seek open work permits in Canada, and their dependents will be granted study or work permit options
• The International Mobility Program (which generally facilitates work permits without the need for a Labour Market Impact Assessment in some cases) will develop a new ‘Innovation Stream’, which will allow employers to attract/hire highly talented individuals. Options within this stream include:
  • Five-year employer-specific work permits for workers destined to work for a companies recognized by the Canadian government as contributing to Canada’s industrial innovation goals
  • Five-year open work permits for highly skilled workers in select in-demand occupations
• Meeting a 14-day service standard for work permits under the Global Skills Strategy/GTS
• With regard to permanent residence, the creation of STEM-specific category-based draws under the Express Entry program
• Updates to the Start-up Visa Program, including:
  • Increased allocation of spots to this program for 2023 and beyond
  • Allowance for three-year work permits (rather than one)
  • Work permits will be open as opposed to ones that limit applicants to working for their own start-up.
  • Three-year open work permits for each member of the entrepreneurial team (not just essential members)
  • Prioritizing applications supported by venture capital, angel investor groups and business incubators and have capital committed, along with applications that are supported by business incubators who are members of Canada’s Tech Network.

The TTS should be of great benefit to many Canadian companies seeking foreign talent, and to the foreign talent seeking to work in Canada.

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

In terms of those who may or may not need a visa to travel to Canada, generally speaking, there are:

• countries from which one requires a visa before travelling to Canada
  • e.g., among many others, India, China, Pakistan, etc., and
• countries from which one requires only an Electronic Travel Authorization (eTA) to travel to Canada
  • e.g., among many others, France, Australia, Japan, Italy, etc.

However, Canada has in the past created a kind of ‘hybrid’ for some countries, where, generally speaking, a visa is required, but under certain conditions, travel based on an eTA only would be allowed. This hybrid scenario has existed for Brazil, Bulgaria, and Romania, and the primary allowances for the elimination of the need for a visa are that:

• the person has held a Canadian visa in the last 10 years, or
• the person holds a current US visa, and that
• the person is flying to Canada [if driving, a visa is still needed]

Canada is now allowing for a significant number of other countries’ citizens to utilize this ‘hybrid’ allowance, and travel (by air) to Canada without a visa, under the same conditions as noted above. The countries for whom this new ‘waiver’ is now permitted are:

• Antigua and Barbuda
• Argentina
• Costa Rica
• Morocco
• Panama
• Philippines
• Kitts and Nevis
• Lucia
• Vincent and the Grenadines
• Seychelles
• Thailand
• Trinidad and Tobago
• Uruguay

This is of course of great assistance for citizens of those countries. Note however that this does not change the consideration of applying for a work permit for citizens of those countries, and that application may still need to be made through a consular process in advance.

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

There are a number of ways that a person may be able to immigrate permanently to Canada. The most common is what is referred to as ‘Express Entry’. This is an umbrella grouping for some underlying programs, notably Federal Skilled Workers (FSW; based on points awarded for certain characteristics), Canadian Experience Class (CEC; based primarily on a work history in Canada), and the Federal Skilled Trades Program (FSTP; similar to FSW, but for trades). Without going into full details, these are some of the primary programs to secure permanent residence in Canada, though there are others through provincial nomination, etc.

Under the Express Entry system, applications are ranked, and there are regular draws – usually every two weeks – where selections are made. Sometimes these draws are open to people in any category. Sometimes they are program specific, e.g., CEC only.

Today, Immigration, Refugees and Citizenship Canada (IRCC) announced that they will start selecting permanent resident applicants in some draws based on specific categories. This is designed to address targeted issues, including labour shortages in particular fields. IRCC has indicated that designated categories from which they will choose, include people with/in:

• French-language proficiency
• Healthcare occupations
• Science, Technology, Engineering and Math (STEM) occupations
• Trade occupations
• Transport occupations
• Agriculture and agri-food occupations

They have also indicated that they will announce in advance any particular category-based draw.

Certainly, there are specific criteria within each category, and this must be considered. For instance, within healthcare occupations, there are designated National Occupational Classifications (NOC) classifications which qualify, so anything outside those qualifications, would not.

Further details on the program can be seen at https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/submit-profile/rounds-invitations/category-based-selection.html.

This may be something to consider in planning a prospective permanent residence application, both from the point of view of the immigrant/applicant, as well as from the point of view of a prospective employer.

Please consult immigration counsel about details before making any such application.

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

Section 1                           Background
Section 2                           New Requirements
Section 3                           Considerations/Consequences/Possible Action Items for Employers

 

1 – Background

In September 2022, the government of Canada implemented updated compliance procedures for employers hiring foreign workers in Canada. Hiring foreign workers is done either through the Temporary Foreign Worker Program (TFWP), or the International Mobility Program (IMP).

• The TFWP essentially requires an employer to justify the need to hire a foreign worker over a Canadian (including a permanent resident), due to, for instance, and most notably, a labour market shortage. This in turn, with few exceptions, requires advertising and other procedures to seek approval. An approval under this program is based on the securing of a positive Labour Market Impact Assessment (LMIA) through Service Canada operating on behalf of Employment and Social Development Canada (ESDC).
• The IMP allows an over-ride of the TFWP, whereby an employer can hire a foreign worker without an LMIA, based on various legal avenues afforded to employers. Examples are intra-company transfers, professionals under certain international agreements, and situations of ‘reciprocal benefit’.

Already in place prior to September 2022 were requirements to, among other matters, provide to IRCC or ESDC, as applicable, offer of employment information including wages, and working conditions. The requirements may have differed slightly depending on whether it was a TFWP or IMP work permit, but in either event, employers could later be subject to inspection to ensure compliance with the terms of employment upon which a work permit was ultimately granted.

2 – New Requirements

In September 2022, further requirements were introduced. These can be summarized as follows.

Firstly, in terms of items that must be dealt with at the time of offer/hire:

Provision	Program	Required Action	Notes
Provide pamphlet re rights in Canada	IMP, TFWP	Employers must provide workers with information about their rights in Canada (in English or French, as the worker chooses) AND must also make the information available to all employees in English and French.	The information can be found at: https://bit.ly/427fc1A (English), and https://bit.ly/3VfWYc0 (French).
Provide employment agreement	TFWP	Employer must provide employees with a signed copy of their employment agreement on or before the first day of work.*	In English or French, as applicable, and consistent with the occupational duties, wages, and working conditions as set out in the approved offer.
Provide employment agreement	IMP	Employers must attest through their Employer Portal that they have provided the foreign worker with a copy of their employment agreement. [In practice, they must therefore have provided this prior to so attesting.]*	In English or French, as applicable, and consistent with the occupational duties, wages, and working conditions as set out in the offer of employment.
Health Coverage	TFWP	Employer must secure health insurance for any period where a foreign worker is not covered by a provincial health plan.

___

* Note that though there may be in any given case, a general offer of employment or employment agreement between employer and employee created in the ordinary course of business, it is important that the ‘offer’ in question cover the terms as agreed to for the purpose of the LMIA/LMIA exemption, as applicable. Practically speaking therefore, an employer would wish that an applicant sign the ‘offer’ that contains the content of the information provided to ESDC (for an LMIA) or IRCC (for a non-LMIA), work permit. It is the terms therein that will be important to ensure are captured for the purpose of the compliance contemplated herein.

In addition to the foregoing:

• Employers may be required to verify that they have made reasonable efforts to maintain an abuse-free environment
• ESDC (re TFWP) and IRCC (re IMP) will now have the authority (subject to Privacy Act considerations), to seek information from third parties to confirm compliance (e.g. payroll companies)
• Employers must confirm (based on, and in a manner applicable to, the relevant program) that they are not recovering, directly or indirectly, from a foreign worker, any fees related to recruitment, LMIA processing, or compliance.

There are of course other details, but employers must ensure that these guidelines are being followed.

3 – Considerations/Consequences/Possible Action Items for Employers

Some further notes:

• IRCC/ESDC have already been conducting inspections on these provisions, and the time frames on which the inspection occurs may include time frames before the requirements were put into place. That is, as one example, if a foreign worker was hired in August 2022, IRCC may still ask if this person was provided the ‘Know Your Rights’ pamphlet or a copy of the signed offer. [In essence, it seems that the requirements are being implemented retroactively.] Presumably, if the person continued to work beyond September 2022, they want the employer to update the compliance to account for that, even if they started before.
• As such, employers should ‘back track’ and ensure that all regulations are met now, even if it relates to someone hired pre-implementation.
• The issues apply even if the employee came for just a brief stint and returned to their home country. The employee need not have ‘moved’, in a more permanent sense, to Canada, for these issues to be pertinent.
• A finding of lack of compliance upon government inspection may lead to severe repercussions, including monetary penalties, blacklisting, and the loss of right to hire foreign workers.

Employers should be aware of these issues, and may wish to conduct an internal ‘audit’ to ensure that they are up to date. Anticipatory and/or remedial action may be required. Advisable activities to mitigate the impact of potential non-compliance (and discovery of same through government inspection) may include:

• taking appropriate remedial actions (e.g. providing ‘Know Your Rights’ information),
• filing a ‘voluntary disclosure’ if a defect in compliance is discovered, or in some cases,
• filing for a work permit amendment.

Employers, whether Canadian or foreign, should take these issues into account, and ensure they are compliant.

Kranc Associates is available to review your company’s records and actions to ensure that these matters are considered, and that the impact of a possible finding of non-compliance upon inspection is mitigated. If you wish to engage us for this purpose, please contact us at the email address above, and we will be pleased to discuss the issues, options, actions, and costs.

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

Further to our notification of April 20 that Canada’s federal workers went on strike, the federal government and the union representing Canada’s federal public workers (known as PSAC), have reached a settlement. The vast majority of public workers are back at work – there is a subset of the union who remain on strike, but those are workers specifically in the Canada Revenue Agency. As such, federal workers in the departments relating to immigration (e.g. IRCC) are back at work, and ordinary processing should continue. Of course, there was already a bit of a backlog in immigration matters, and there may be a bit of an additional backlog for the just under 2 weeks that the strike lasted, but things are as back to ‘normal’ as they can be at this juncture. It should also be noted that the settlement reached is technically ‘tentative’, subject to a union vote, but all indications are that the settlement will be ratified, and the workers will remain at their jobs.

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

Users of the Canadian immigration system should be aware that public service workers in Canada have gone on strike, and processing times could be significantly impacted.

The Public Service Alliance of Canada (PSAC) represents many workers in the Canadian government, including those working at offices dealing directly or indirectly with immigration and citizenship matters. Such offices include:

• Service Canada
  • Impacting the processing of LMIAs
• Immigration Refugees and Citizenship Canada (IRCC)
  • Impacting the processing of immigration and citizenship applications
  • Also impacting communications such as through the call centre
• Passport Canada
  • Impacting the processing of passports

At this stage, no information can be provided on how long the strike may last, but users should be aware of, and should be prepared for, delays. We will update readers with any substantive updates on the impact on immigration matters and/or the conclusion of the strike.

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

Labour Market Impact Assessments (LMIAs) are applications whereby employers substantiate to the Canadian government that there is a rationale to permit them to recruit foreign workers for particular positions in Canada. The approval of an LMIA means that an employer may now offer relevant positions to foreign nationals, and those foreign nationals may now apply for work permits. (There are categories of work permits where no LMIA is required, but for today, we are looking only at LMIA-based applications.) Commencing April 2023, subject to very limited exceptions, all LMIA applications must be filed online. (The online system has existed previously, but it was not mandatory.)

Though the substance of an LMIA application should remain the same, the revised methodology will alter some procedural aspects of the process, which can impact employers seeking foreign workers.

Some considerations with regard to the online process:

• The portal is managed through the Job Bank. Employers will need a Job Bank account at https://employer.jobbank.gc.ca/employer/. This in turn requires employers to have a CRA payroll account.
  • For non-Canadian companies, this is one of the situations where an exception exists, and a ‘manual’ (through email) application may be filed. Where a company meets an exception, a PDF form must be requested at form.request.esdc@servicecanada.gc.ca.
  • Where the employer has a lawyer or other authorized representative, it will be necessary to have the representative added to the employer portal (in some cases, it may be possible to utilize the representative’s portal).
• The online process forces the application in a certain direction, and it is therefore imperative that correct information be input to ‘steer’ the application in the right direction.
  • For instance, whereas in a manual application, the employer would indicate that the position is a high-wage or low-wage position (based on designated cut-offs, and based on which, there will be implications in terms of transition plans, caps, etc.), the online form will now automatically decide whether it is high-wage or low-wage based on the salary input. So, inputting a wrong salary will force the online form to go toward one application or the other.
  • Where an application is ‘dual intent’ – meaning it is for both a work permit and in support of a permanent residence application, the ‘Express Entry’ should be selected.
• The payment for the application is made when the system generates a request for payment. This is not necessarily simultaneous, and could indeed take a few days.

There are certainly more details, and employers needing to file LMIAs should ensure that they are familiar with the system and/or consult an appropriate professional, but the information above should serve to provide employers with a ‘head start’ as they begin using the system, particularly if they were used to prior manual filings. Note that there is general information, including a video on the system, which can be found at https://www.canada.ca/en/employment-social-development/services/foreign-workers/online-portal.html, which may be worth reviewing before venturing into the new system.

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

In addition to other methods of securing foreign workers, Canada often admits needed foreign talent by permitting provinces the opportunity to nominate prospective candidates. This nomination process allows a more targeted approach to fill labour shortages, which provinces are often more keenly aware of. Consequently, employers seeking to fill labour shortages can meet their needs by recognizing and accessing provincial programs available, rather than just federal programs.

Certainly, there are caveats to the use of such provincial nominee programs, including the meeting of relevant legal criteria, and quotas on the number of candidates a province can nominate. It should also be noted that such nominations are for permanent residence, but often, a nomination will bring with it the ability to secure a work permit based on the ‘foundation’ of the permanent residence nomination, so that positions can be filled quickly, and the foreign national can be working while the permanent residence matter is in process.

The Ontario Immigration Nominee Program (OINP) has now announced that it will be increasing the number of nominations available through its program. In 2021, there were 9,000 nominations available; in 2022, 9,750. However, in 2023, there will be 16,500, and by 2025, this number will be 18,361.

This is an opportunity for Ontario employers to take advantage of greater opportunity to seek to fill positions with foreign talent, if necessary. Again, there are certainly details and caveats related to each specific case, but employers may want to investigate if this program can be of value to them.

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

Historically, with certain exceptions, initial work permit applications could not be made from within Canada by visitors in Canada. Such applications needed to be made, (a) in the case of those that need a visa, through a visa post/online, and (b) in the case of those that don’t need a visa, at a port of entry. One way or another, an applicant who happened to be in Canada would have to exit and re-enter to obtain or ‘activate’ a work permit.

With the advent of COVID, Immigration Canada introduced a program to allow people who had only ordinary visitor status in Canada to seek an offer-supported work permit from within Canada. There was a corollary to this program whereby visitors who held a work permit within the last 12 months were also able to seek interim work authorization to work with a new employer before a formal work permit was received.

This program, including the corollary aspect, was set to expire February 28, 2023.

However, Immigration Canada has announced that it is prolonging the program until February 28, 2025.

Some notes and caveats about the program:

• In terms of the visitor to work permit application process, applicants must:
  • Have valid status as a visitor in Canada on the date of application
  • Have a job offer supported by a Labour Market Impact Assessment (LMIA), or an LMIA-exempt offer of employment
  • Submit their application for an employer specific work permit no later than February 28, 2025, and
  • Meet all other admissibility criteria.
• In terms of the interim work authorization to work with a new employer, for those who have held work permits within the last 12 months, applicants must:
  • Hold temporary resident status at the time of work permit application
  • Have held a work permit in the 12 months preceding the date the application was submitted
  • Intend to work for the employer and occupation specified in the related LMIA or LMIA-exempt offer of employment
  • Apply as well to IRCC for the interim authorization, through the IRCC web form, with a request in the prescribed manner, and
  • Remain in Canada throughout the period during which their work permit application is being processed.

The extension of the program is of course good news, but certainly, people who wish to take advantage of any element of the program must ensure that they meet the relevant criteria, and take the appropriate actions.

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