Category: ImmPulse™ Newsletter

Readers will be aware that subject to various exceptions, the starting point for a work permit in Canada is typically an application by an employer for a Labour Market Impact Assessment (“LMIA”) under the Temporary Foreign Worker Program (“TFWP”). TFWP policy is set by a government agency called Employment and Social Development Canada (“ESDC”), and administered through another government agency called Service Canada (“SC”). The LMIA process requires that an employer substantiate an inability to find a suitable Canadian citizen or permanent resident for the position before bringing a foreign worker to Canada. An LMIA application requires various recruitment requirements, salary commitments, etc.

[Exceptions to the need for an LMIA include various ‘International Mobility Program’ (“IMP”) categories such as intra-company transfers, various professional categories under free trade agreements, and ‘Reciprocal Benefit’, to name a few.]

However, readers should be aware that ESDC restricts the issuance of LMIA issuance in certain cases.

In some cases, ESDC indicates that there is no authority to issue LMIAs. These situations include those where an employer:

• regularly offer services in the sex industry, or
• is on the Immigration, Refugees and Citizenship (“IRCC”) ineligibility list which includes:
  • employers who have been found non-compliant based on an employer compliance review
  • employers who have been banned from the TFWP because non-compliance was discovered during an inspection, or
  • employers who are in default of payment of an administrative monetary penalty

Further, ESDC/SC may refuse to issue LMIAs based on public policy considerations, which may include:

• considerations vis-à-vis certain positions in the accommodation and food services and retail trade sectors
• low-wage positions above the current cap for an employer (the number of foreign low-wage workers in each employer’s work force is restricted to a percentage of the overall workforce)
• in-home caregiver positions where there is a live-in requirement
• any position where an employer has had an LMIA revoked in the past 2 years, and
• most positions in the province of Alberta(unless listed as exempt)

Further details of the restrictions can be found at https://www.canada.ca/en/employment-social-development/services/foreign-workers/refusal.html#2.1-h3.2. For our purposes, we wish to focus today on the restrictions vis-à-vis Alberta.

Because of the COVID-19 pandemic, and presumably therefore heightened unemployment rates, the Province of Alberta and ESDC have agreed that LMIAs will not be issued for positions in Alberta, unless the relevant occupation is on a specific list of exempted occupations. The full exemption list is found at the web site noted above, but some of the key exemptions would include:

• Computer and Information Systems Managers
  • And certain other computer related fields
• Pilots
• Certain types of physicians
• Producers/Directors/Choreographers and related occupations, and
• Farm Workers.

In addition to the specific occupational exemptions, there are a few other situations where LMIAs in Alberta may still be granted. These include:

• Occupations where the work in question is for 30 calendar days or less, and
  • Requires proprietary knowledge, or
  • Entails installation, inspection, or repair of equipment where the warranty requires that work be done by workers designated by the manufacturer
• Situations where the LMIA is in support of a permanent residence (“PR”) application (or ‘dual intent’ meaning that it supports a work permit and PR at the same time).
• LMIAs under the Global Talent Stream, primarily for high-tech workers (see http://www.kranclaw.com/2018/06/global-talent-stream-adds-three-new-occupations/)
• Certain In-home Caregiver positions

As such, employers seeking to bring/send foreign workers to Canada requiring an LMIA should be aware of the restrictions and consult appropriate counsel to consider the feasibility of an LMIA application in Alberta.

Please recognize that the considerations herein do not apply to IMP programs – but there may be other issues/restrictions/considerations in those cases which should be checked, given the fluidity of COVID-based regulations, and differences based on the point of origin of the foreign worker.

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

The Canadian government has again extended travel restrictions to curb the spread of COVID-19.

The government recently extended the travel restriction from the United States to December 21, 2020, and has now extended the travel restriction from all countries other than the United States to January 21, 2021. It is interesting to note that updated restrictions were previously always done in one-month increments, but the non-U.S. restrictions have now been extended by about 7 weeks. The ‘21^st’ date, though into January, will allow alignment between U.S. and non-U.S. travel in the future.

A few notes about the restrictions, as their application and interpretation have evolved over time:

• The travel restrictions discussed above are in addition to a further set of guidelines still in effect relating to quarantine, to which everyone – including Canadian citizens – is subject.
  • There may be exemptions from the need to quarantine, notably for people working in ‘essential’ sectors, but again, it otherwise applies to everyone. The exceptions can be seen at https://www.publicsafety.gc.ca/cnt/ntnl-scrt/crtcl-nfrstrctr/esf-sfe-en.aspx.
• Travel from the United States for non-discretionary purposes is permitted for anyone physically in the U.S. who does not need a visa. This could include, most notably, those coming to work. As such, work permit applications from non-visa nationals in the U.S. continue to be processed more-or-less as they were before COVID.
  • That being said, given the uncertainties of crossing the border, a pre-screen may be advisable for non-LMIA applications, to at least make sure the substantive elements of the matter are in order before travelling.
  • There is a distinction between an ‘essential’ service – which would allow exemption from quarantine requirements as noted above, and non-discretionary travel, which may still be for something other than work in an essential service enumerated in the referenced web site. Such non-discretionary travel does not remove the need to quarantine (unless involved in an essential service).
• Travel from anywhere other than the United States for non-discretionary travel requires an online application, even for someone who didn’t previously need one (e.g. a UK national), and thereafter a request/submission for allowance to travel to provide an essential service.
• Travel for other purposes has been broadened to some degree to allow for other purposes of travel including travel by various family members and in some compassionate circumstances.

Of course, each traveler should ensure compliance with the relevant requirements before seeking to come to Canada, and employers should also be aware of their obligations for foreign workers they employ.

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

 

At the conclusion of 2020, the United Kingdom (“UK”), having withdrawn from the European Union (“EU”), will conclude its participation in the Comprehensive Economic and Trade Agreement (“CETA”) between Canada and the EU. In addition to numerous trade elements of the treaty, CETA has various provisions for eased business immigration between EU members and Canada. (For details on CETA immigration provisions, please see our initial ImmPulse™ bulletin on the topic at http://www.kranclaw.com/2017/10/canada-implements-the-canada-european-union-comprehensive-economic-and-trade-agreement/, and an update at http://www.kranclaw.com/2020/06/canada-european-union-free-trade-agreement-ceta-updates-immigration-aspects/.)

Among other CETA immigration benefits are provisions for Independent Professionals and Contractual Service Providers, and broadened intra-company transfer allowances for certain types of workers (including graduate trainees). Termination of the UK’s involvement in CETA would mean that these categories would no longer be available to UK nationals seeking to work in Canada.

However, Canada and the UK have announced that they have concluded an interim agreement to continue operating under the provisions available through CETA, as between the UK and Canada, even when the UK is no longer a part of CETA. Canada and the UK have also indicated that this is a step toward concluding a comprehensive free trade agreement between the countries.

Full details are not yet available, but it would appear that under the interim continuity agreement, the immigration provisions of CETA will be maintained for UK nationals seeking to work in Canada. Hopefully, this will flow through to the comprehensive agreement when that is finalized.

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

As has been canvassed in prior issues of ImmPulse™, and subject to exemptions for those in essential services, there is currently a mandatory 14-day federally-imposed quarantine requirement for those permitted to travel to/enter Canada under the COVID regime. Note that this is not an immigration requirement per se – this requirement applies even to Canadian citizens. This is separate from the issue of who may indeed travel to Canada at this time. And for our purposes, we are focusing on those travelling to Canada for the purpose of work.

[The issue was most robustly canvassed in the June 22, 2020 issue of ImmPulse™ found at http://www.kranclaw.com/2020/06/canada-business-immigration-covid-19-roundup/, but particular updates and sub-issues have also been canvassed, including the need to now use the ArriveCan app for the purpose of submitting a quarantine plan in advance, discussed in the November 5, 2020 issue at http://www.kranclaw.com/2020/11/covid-quarantine-plan-procedure-update-for-arrival-in-canada/.]

Federal Update

The government recently announced a pilot project – available at this time only to those entering through certain Alberta Ports of Entry (Calgary airport and Coutts land border) – whereby rather than quarantine for 14 days, participants in the pilot will be allowed to conclude their quarantine early if they test negative on two COVID-19 tests, one on entry, and one 6 or 7 days after entry. Participants must be either Canadian citizens or permanent residents OR “foreign national not restricted from entering Canada”. This last grouping would appear to apply to many foreign workers.

There are still certain conditions, including the requirement to continue to comply with preventive measures during the abbreviated quarantine, but this program may be beneficial to many foreign workers. See https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/latest-travel-health-advice/alberta-covid-19-border-testing-pilot-program.html for details.

Hopefully, if the pilot is successful, it will be expanded, and quarantine times may be reduced for those entering Canada at other locations.

Provincial Considerations

Readers should also be aware that in addition to the 14-day federal quarantine requirement, some provinces or regions (e.g. Atlantic Canada) place additional requirements on those entering their jurisdiction. These should certainly not be taken for granted, and failure to comply with these additional requirements can also lead to refused entry or other consequences.

Not all provinces impose specific additional obligations, but some do, and as such, the requirements for each province should be reviewed. Links to the various provincial sites that explain each of the provinces’ requirements can be found at https://travel.gc.ca/covid-19-provinces-territories. As but two examples, Prince Edward Island and Newfoundland require advance filings, and approval to travel may be required.

As such, any foreign worker travelling to Canada should ensure that he/she reviews the COVID-related travel restrictions/requirements that may be applicable for the province of destination, before travelling.

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

On October 7, we issued an ImmPulse™ bulletin, indicating that flagpoling was again being allowed for the purpose of securing a work permit. ‘Flagpoling’ is the term used for the act of quickly exiting and re-entering Canada to seek a work permit at a Port of Entry (rather than applying through the slower inland/online process). It effectively acts as a method of work permit (or other status) renewal for those already working in Canada. It had been disallowed since COVID-related guidelines were implemented in March 2020. [Please see the October 7 bulletin at http://www.kranclaw.com/2020/10/flagpoling-may-now-be-permitted-but-with-a-twist/.)

As noted in the October 7 edition of ImmPulse™, however, since the person flagpoling would technically be entering Canada from outside the country, the person would again need to quarantine for 14 days (unless exempted as essential).

New guidelines from Canadian immigration authorities now seem to say that the government will not require re-quarantining in a flagpole scenario, if the following conditions are met:

• The person remains in their conveyance (vehicle), and wears a mask, at all times from the time of exiting Canada to re-entry to Canada (and notably, during their attempted entry/flagpole at U.S. Customs and Border Patrol).
• This can also be looked at as staying in the car/wearing a mask at all times while physically outside Canada. We would suggest ensuring the mask stays on from before the time of exiting Canada.

A few notes we often tell clients about flagpoling in general, which may also be of assistance:

• Though the purpose of flagpoling is almost invariably to allow a faster ‘renewal’ (inland processing is taking some 150 days), the technical procedure to renew is still to use the inland/online process; where time permits, this still removes the risks of any problems at the Port of Entry.
• We generally recommend that people flagpoling notify Canadian immigration authorities of their intention to flagpole before they exit Canada, to seek confirmation that they will be able to do so, and in some cases, to allow Canadian authorities to notify U.S. authorities, to smooth the way on the U.S. side.
• Though the impact of the person’s ‘travel’ to the United States should be considered with U.S. counsel, when on the U.S. side of the border, an applicant should make it clear that they are flagpoling, and not seeking entry into the United States.

As such, and in summary, flagpoling is once again an option for those seeking to ‘renew’ work permits in this way, rather than by applying online/inland. Further, the prior guideline mandating quarantine on re-entry has seemingly softened. As with other guidelines in the COVID era though, matters evolve quickly, and some officers do not always apply the guidelines as should be expected. Therefore, those intending to flagpole should still be prepared to face the issue of quarantine in their deliberations in considering this procedure. But if all goes well, this new guideline may be of benefit to many people intending to flagpole.

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

Since March 2020, various protocols have gone into effect concerning procedures to travel to/work in Canada in view of the COVID situation. Some of those procedures relate to a ‘Quarantine Plan’ for anyone not in an exempted/essential service.

As set out in a prior bulletin, information about a Quarantine Plan could be submitted through a government of Canada app called ‘ArriveCAN’ (see http://www.kranclaw.com/2020/08/expediting-arrival-to-canada-during-covid/). The app is available for iOS, Android and web format (web based access can be found at https://arrivecan.cbsa-asfc.cloud-nuage.canada.ca/privacy).

The government of Canada has now announced that effective November 21, for anyone travelling to Canada by air, use of the ArriveCAN app will be mandatory. Information will be required to be submitted in advance of a person boarding his/her flight. In the event that on arrival, the submission of the required information cannot be verified by an officer, enforcement action may be taken, including fines of up to $1000 (and entry to Canada may be disallowed).

Though not mandatory at land or marine ports of entry, use of the app is still encouraged.

Note that beyond this issue, further protocols are evolving, including the need for travelers to notify Canadian authorities within 48 hours of entry that they have arrived at their place of quarantine, and the need to complete daily COVID symptom self-assessments. (Notification can be done through the app, or by calling 1-833-641-0343.) Those who enter without having used ArriveCAN (e.g. at a land border crossing) will have to contact the 1-833 number daily during the quarantine period.

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

In Canada, foreign nationals on temporary status who apply to extend that status before the prior status expires, may remain in Canada, and continue to work or study, as applicable, while their applications are being processed. They are deemed to have what is referred to as ‘implied status’, until their case is adjudicated.

That is, for instance, if someone in Canada has a work permit expiring Nov. 30, 2020, but, prior to the expiration date, makes application through the appropriate process, to extend that status, they will be allowed to continue to remain in, and work in, Canada until such time as the application is adjudicated. So, if that application is not processed until February 1, 2021, the person can continue to work completely legally until February 1, 2021. (Of course, if there is ultimately a negative adjudication, then the person may need to leave at that point, but that is a separate issue.)

This has been an important right under Canadian immigration law since often, adjudication of inland extension cases can take a number of months.

However, there were also some issues with this ‘implied status’. Perhaps most notably, many provincial health systems would not cover a person unless they had a valid work permit – which they don’t have while under implied status. (In some cases, they provide retroactive coverage once a new work permit is secured, but that of course is not an optimum solution.) Again, from an immigration point of view, they are completely legal in Canada, but provincial guidelines might dictate that they need something more specific to secure entitlement to health coverage.

Immigration, Refugees and Citizenship Canada (IRCC) has now advised that moving forward, when a person, and notably a foreign worker, makes an application to extend status, they will receive a letter (through the online portal) that says that the person has an “automatic extension of status”. As such, applicants will be able to rely on more than just a regulatory provision; they will have in their hands a letter from IRCC confirming that they have a valid form of extension of status. In many, if not most, if not all cases, it is expected that this should satisfy provincial health authorities to provide health coverage.

This may be of benefit for other purposes as well. For instance, financial institutions may require proof of status to issue loans, or open accounts, etc. So, it is hoped that this letter with wording confirming a person has real status in Canada will provide benefit to people who are in ‘implied status’.

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

‘Flagpoling’ refers to a situation where a foreign national is physically in Canada, and, rather than renew his/her status through the inland system, exits Canada at a border crossing, and immediately re-enters to effectively ‘renew’ his/her status. For our purposes, we are speaking of foreign workers in Canada. Note that the procedure to ‘renew’ is different than the substance – there must still be a legitimate underlying basis to a work permit application, e.g., LMIA, ICT, etc. [As an aside, Canadian immigration authorities (even prior to COVID) have sometimes frowned on this process as it may clog their ports of entry, and in some cases, have restricted flagpoling to certain days of the week; but it is technically a permissible process under relevant regulatory authorities.]

When COVID measures were put into place, the right to flagpole (on any day of the week) was eliminated.

Without much fanfare, it seems that Canadian immigration authorities will now allow flagpoling. As per https://bit.ly/2GDs8bs, recently updated, an applicant may flagpole if they otherwise meet the procedural and substantive requirements to seek a work permit at a port of entry, and are entering from the United States – EVEN if they just left Canada. Previously, COVID guidelines allowed entry from the United States for non-visa nationals, but not if it was a flagpoling situation.

However, there is a catch. That returning foreign worker must now meet the 14-day COVID-based quarantine requirements, if applicable. Such requirements would not be applicable only if a person is in an essential service. Note that where a person can work from home or other place of isolation, this may allow the person to effectively carry on as they were, while quarantining. Note as well, that whether or not a person can carry out any remote duties while quarantining, the employer is still responsible for any salary and other commitments.

All the above being said, there are also current measures in place to expedite certain work permit applications inland, for instance, where someone is changing employers, which may alleviate some or all of the issues relevant to flagpoling in some cases.

This development is new, and it is not clear how officers at ports of entry are implementing it. Proper consideration should be had before utilizing flagpoling procedures.

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

Along with the myriad of pronouncements prioritizing and reprioritizing those eligible to travel to Canada for work since the onset of COVID-19, Immigration, Refugees and Citizenship Canada (IRCC) has now announced, that priority processing will be extended to foreign workers coming to Canada to work in the film and television industry.

While processing of work permits at ports of entry for non-visa nationals travelling from the United States continues to be done essentially as it was done prior to COVID restrictions, IRCC has now indicated that applicants in the film/television industry arriving from non-U.S. destinations (or in the U.S. but requiring a visa) may now have their work permits processed under an expected 14 day service standard. Note that IRCC also indicates that identifying relevant applications could take 5 days, so in essence, this must be added to the 14 days, and of course, all time frames provided are estimates only.

To seek to take advantage of this new provision, applicants must submit their work permit applications online (as would any work permit applicant), and then submit a request using specified language through the IRCC web form platform. Thereafter, the request will be reviewed, and if qualified, will be processed in a priority fashion as noted above.

There are other priority work permit ‘streams’ that the government identifies as the COVID situation lingers (notably, those in essential services), and employers and employees should be aware of the availability of legal tools that can assist them in expediting work permits. This latest announcement will be important to anyone (employer or employee) involved in the film and entertainment industry.

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

The province of British Columbia (B.C.) has introduced measures that require employers who intend to hire foreign workers to register with the provincial government. Under the ‘Temporary Foreign Worker Protection Act’, employers must be registered to hire foreign workers, and the provincial government will be able to monitor employers’ compliance with all legal obligations – and sanction non-compliance. There are further requirements for recruitment agencies. Registrations are valid for three years..

However, there are significant exemptions to the registration requirement. These include:

• Employers who already have foreign workers but don’t plan to hire more,
• Employers hiring foreign workers under the B.C. Provincial Nominee Program (B.C. PNP),

  and most notably,

• ‘Excluded Employers’. Excluded Employers are employers who hire foreign workers under:
  • Work Permit exemptions found in s. 186 of the Immigration and Refugee Protection Regulations
    • For example, clergy, certain entertainers and athletes, certain journalists, etc.
  • Any non-LMIA work permit category
    • For example, intra-company transferees, CUSMA professionals, etc.

The remaining pool of employers who need to register to hire foreign workers would include:

• Those hiring foreign workers under the Temporary Foreign Worker Program – that is, for positions requiring Labour Market Impact Assessments (LMIAs)
• Those hiring foreign workers under the Seasonal Agriculture Worker Program
• Those hiring foreign workers as Home Child Care or Home Support workers.

Employers in B.C. should of course consider these issues when seeking to hire foreign workers. Certainly, other provinces also have or may implement measures impacting the hiring of foreign workers, and employers in each province should be aware of their provincial guidelines.

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