Kranc Associates

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.

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.