Category: ImmPulse™ Newsletter

Permanent residence (PR) in Canada can be achieved through a number of different programs. The most common is what is referred to as ‘Express Entry’ (EE). Express Entry is actually an umbrella for various specific PR programs, primarily,

• the Canadian Experience Class (CEC – for people having worked in Canada),
• the Federal Skilled Workers Program (FSW – for those who have characteristics that may make them suitable for economic immigration to Canada), and
• the Federal Skilled Trades Program (FSTP – similar to the FSW, but specifically for skilled tradespeople).

EE creates a selection process whereby people may be chosen from these programs (and some others), and allowed to apply for PR. Draws are held every two weeks. In each draw, program types, and/or other factors are set, and point thresholds are established for selection from the pool of applicant profiles.

One of the factors to date which has often been a key component of securing points under EE is consideration of whether someone has a job offer/arranged employment (which had some specific requirements of being, e.g., under an LMIA, etc.). The government has announced that points for this factor are no longer available. That removes 50 potential points for most general occupations, and 200 potential points for ‘NOC 00’ (senior managerial) positions, in a system where the cutoff is often around the 500-point mark. These points have been significant, and have often made the difference of selection vs. non-selection, in many applications.

This new rule will apply to any current or future selections, so for people who have an active profile, but have not yet been selected, they will no longer be entitled to these points.

Applicants for PR, and those that assist such applicants (notably employers of foreign workers) should take note of this change, and the impact it may have on their long-term planning.

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

In the fall of 2024, the government of Canada announced that the ability for spouses of foreign workers and students to obtain open work permits would be restricted. The government is now implementing certain specific rules in this regard, effective January 21.

Some notable aspects of the new rules to consider are:

• For foreign students, spouses will be entitled to open work permits only if the foreign student is in one of the following:
  • A master’s degree program of 16 months or longer
  • A doctoral program
  • A designated areas of study including, e.g.,
    • Medicine, Dentistry, Nursing, Engineering, Law, Optometry, Pharmacy, Veterinary Medicine, Education
  • An eligible pilot program
    • Outside Quebec: Francophone Mobility Communities Student Pilot
    • In Quebec: Le projet de reconnaissance des compétences d’infirmières et d’infirmiers recruté-e-s à l’international
•  For foreign workers, spouses will be entitled to open work permits only if the foreign worker is:
  • In a TEER 0 or 1 occupation
  • Certain TEER 2 or 3 occupations in sectors with labour shortages
    • These include occupations in applied sciences, construction, health care, natural resources and others. The full list is to be provided by the government on January 21.
•  Other notes:
  • For a spouse of a foreign worker to seek an open work permit, the foreign worker must have at least 16 months remaining on their work permit.
  • Dependent children of foreign workers will not be eligible for open work permits.
  • Holders of open work permits approved under previous rues will continue to be able to utilize their work permits.
  • Importantly, the above rules do not apply to spouses of foreign workers covered by free trade agreements or persons transitioning to permanent residence.

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

Inland renewal applications in Canada can at times be slow. As such, in order to expedite matters, people already in Canada on work permits (or other types of status) sometimes drive to a nearby Canada-U.S. border-crossing, exit Canada, and simply return immediately to make an application on entry. This effectively amounts to a renewal, without the wait, and is referred to as ‘flagpoling’.

The government of Canada has now ended the right to flagpole. All renewals of status for those already in Canada must be done through the ordinary inland/online filing process. [Note that current inland work permit processing time is estimated as 156 days from time of submission.]

The government has, however, indicated a few exceptions, including:

• US citizens and permanent residents
• Professionals, under certain free trade agreements, from the United States, Mexico, Chile, Panama, Peru, Colombia and South Korea;
• Spouses/common law partners of professionals, under free trade agreements, from Panama, Colombia and South Korea;
• Truck drivers required to leave Canada for the purpose of their employment, and who hold maintained status having applied for renewal prior to departure; and
• Those with appointments already booked with the Canada Border Services Agency (CBSA).

Note that CBSA has published guidance that implies that this refers to “same-day service”, which may in turn imply that a person who, for example, has business outside Canada, and had a true need to travel (for a period of greater than one day), may still be able to make an application at a port of entry on return. However, this interpretation is not yet confirmed, and we await clarification on this and some other implications of the new rules. We will advise further as soon as there is any update.

Certainly, employers and employees should take necessary precautions in filing early and otherwise ensuring that matters are dealt with in a timely manner.

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

The ‘prevailing wage’ (or median wage) determined by the Canadian government for occupations across the country, is an important part of Canadian immigration matters. Among other issues, the prevailing wage for particular jobs in particular regions, must, in almost all cases, be the minimum wage offered to a foreign worker. The job in question will depend on a comparison to the job definitions set under the National Occupational Classification (NOC) code. NOC code descriptions can be searched at https://noc.esdc.gc.ca/. The new prevailing wage for each job can be searched at https://www.jobbank.gc.ca/trend-analysis/search-wages.

Canada has just updated its prevailing wage information, and employers (and foreign workers) must therefore ensure that they take the new wages into account.

Among other considerations:

• Employers must ensure wage compliance at all stages of LMIA-based work permit matters. Specifically:
  • Employers must ensure that current job postings in support of an LMIA (but pre-application) are compliant with the new requirements.
  • LMIA applications already filed may also require reposting if the percentage change is considered sufficiently substantial.
  • Where a foreign worker is already employed, his/her salary must be raised if the salary now falls below the new prevailing wage.
• Similar considerations may exist for IMP/non-LMIA work permits as well, notably in the realm of intra-company transferees (please see our recent ImmPulse™ on the topic, at https://bit.ly/4dHd6uL).

In addition to the above, employers are reminded of their obligation to review foreign workers’ salaries annually, to ensure that salaries are indeed at or above median wage.

It has been standard practice for a number of years for Canada to issue visas to foreign nationals on the basis of being 10-year multiple entry allowance (with some exceptions). This is now changing.

Canada has issued new guidelines to its officers allowing them more discretion in the consideration of single-entry vs. multiple entry visas, and visa durations. The guidelines provide various considerations including:

• Purpose of visit
  • e.g., for a one-time event vs. for recurring needs
• Funds
  • e.g., ongoing employment sufficient for the visit(s)
• Medical
  • e.g., available insurance, etc.
• Other
  • e.g., ties to home country, travels to other countries

This may impact travel for both business/work, and non-business travel. Certainly, any need for longer term and/or multiple entry visas should be made clear and justified in relevant applications.

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

 

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.