Hiring a Temporary Foreign Worker in Canada

2009 National Citizenship & Immigration Law CLE Conference

What We’re Going to Talk About

• What is work as defined by Immigration legislation?

• Getting started – what are the basic rules?

• Work without a work permit – who qualifies?

• Who needs a Labour Market Opinion to get a work permit and who doesn’t?

• What is a Labour Market Opinion anyway?

• Four steps to hiring a temporary foreign worker

What is Work?

A30(1) states that a foreign national may not work in Canada unless

authorized to do so under the Immigration and Refugee

Protection Act (IRPA).

Work means an activity:

• for which wages are paid or commission is earned, OR

• that is in direct competition with the activities of Canadian citizens

or permanent residents in the Canadian labour market.

General Rules

• General Rule #1: A foreign national wishing to work in Canada needs a work permit.

• General Rule #2: An employer must apply for a Labour Market Opinion (LMO) before a work permit can be issued.

• General Rule #3: Application to obtain a work permit is processed abroad in a Canadian visa office.

• General Rule #4: A foreign national seeking to enter Canada

must not be inadmissible under IRPA.

General Rule #1

• A foreign national needs a work permit to work in Canada.

• Exceptions: Under certain circumstances a foreign national

may work in Canada without a work permit. Examples of

persons who may qualify to work in Canada without a work

permit include, but are not limited to:

•Business visitors

•Foreign representatives

•Military personnel

•On-campus employment

•Performing artists

•Athletes and coaches

•News reporters

•Public speakers

•Convention organizers

•Clergy

General Rule #2

• A Labour Market Opinion (LMO) from Service Canada is

normally required for a work permit to ensure that

The offer of work is genuine.

Employment will have a neutral or positive economic effect

on the labour market.

• Exceptions: Immigration legislation allows for some exceptions

to the requirement for a Labour Market Opinion (LMO).

LMO Exemptions

Exemptions from Labour Market Opinion requirement (LMO):

International Agreements: NAFTA; CCFTA;

GATS.

Canadian Interests: Significant benefits;

Reciprocal Employment; Students.

Other: Applicants in Canada; Humanitarian

reasons; Provincial Nominee Program.

International Agreements

International Agreements:

NAFTA (North American

Free Trade Agreement)

GATS (General

Agreement on Trades in

Services)

CCFTA (Canada Chile

Free Trade Agreement)

NAFTA Categories

• Business Visitors (no work

permit required)

• Professionals (LMO Exempt)

• Intra-Company Transferees

(LMO Exempt)

Executive or managerial

Specialized Knowledge

• Traders and Investors (must

apply at a Canadian visa

office)

Canadian Interests

Exchange Programs:

Youth Exchange Programs

(SWAP, WHP)

Teacher Exchange Programs

Other reciprocal programs

Spouses:

Spouses/common-law

partners of skilled foreign

workers or certain foreign

students.

Canadian Interests

Significant Benefit (C10):

Should not be used to circumvent the LMO process.

Social, cultural, or economic benefits are so clear and

compelling that the HRSDC confirmation process can be

overcome.

Social/cultural benefits exist for admitting persons of

international renown where their presence in Canada is

crucial to a high profile event.

For economic benefit, all practical efforts to obtain LMO

should be made before C10 is applied.

Provincial Agreements

Provincial Nominee Program (PNP):

Application for a work permit must include a letter from the

provincial government that confirms:

The foreign national has been nominated for permanent residence

by the province.

The nominated individual is urgently required by the provincial-

based employer who has made the foreign national a job offer.

General Rule #3

Application to obtain a work

permit is processed abroad at a

Canadian visa office.

Exemptions: A person from a

visa exempt country can

apply at a Canadian port of

entry.

General Rule #4

All persons seeking entry to Canada must meet all other

requirements of IRPA.

Note: Persons who require a medical examination to obtain their

work permit should apply for their work permit at a Canadian

visa office abroad.

Note: Persons who are inadmissible to Canada under IRPA

should apply for their work permit at a Canadian visa office

abroad.

Four Steps to Hiring a Foreign Worker

(Putting the Pieces Together)

Step One: Job Offer (LMO?)

Step Two: Labour Market

Opinion (LMO)

Step Three: Work Permit

Step Four: Entering Canada

Step 1: Job Offer

Determine if you Need an LMO

An employer recruits a foreign worker and

makes a job offer:

Job offer must include: Job title, a concise

description of the job, a list of required education,

skills and experience, details of when the job will

start and end, salary details, address where

employee will be working.

Wages: Wages and working conditions must be

consistent with the Canadian Labour Market.

Review and determine if LMO is required.

Step 2: Apply for an LMO

Employer receives a positive LMO from Service

Canada (if required):

LMO: Employer submitted the HRSDC Foreign

Worker Application form to Service Canada and

received an opinion.

Step 3: Work Permit

Employee applies for a work permit from CIC:

Apply for a work permit prior to entry: Most

foreign workers must apply for a work permit prior

to their arrival in Canada (either abroad or at a

port of entry).

Conditions: Employee must adhere to conditions

listed on the work permit.

Step 4: Work Permit is Issued at the

Port of Entry

To obtain the work permit at a port of entry the foreign

worker must be able to demonstrate that:

The offer of employment is genuine: Foreign

worker must provide documentary evidence that

he/she meets all requirements of the position.

Admissibility to Canada: Foreign worker must

satisfy CBSA officer that he/she is admissible to

Canada.

More Detailed Information

on Anything and Everything

Check our website: www.cic.gc.ca

Publications

Temporary Foreign Worker Guidelines (FW)

(About Immigration section / Operations Manuals)

Foreign Worker 1 – detailed information

OR

Foreign Worker 2 – quick reference

Click on

Temporary Foreign Worker Units

Temporary Foreign Worker Units

(TFWU)

Created by CIC to:

Educate employers and their

representatives on the process of

hiring a foreign worker;

Act as a resource for employers and

service delivery partners; and

Pre-screen, upon request, if a foreign

worker request could be considered

exempt the requirement for a Labour

Market Opinion (LMO) from Service

Canada or the requirement for a work

permit.

Temporary Foreign Worker Units

Facilitative process, does not

represent a change in policy

or procedures.

The Border Services Officer

remains the delegated

decision maker.

TFWU staff are a resource

equally accessible by clients

and delivery partners.

Temporary Foreign Worker Units

Request for opinion

submitted prior to temporary

foreign worker seeking entry.

Staff of Temporary Foreign

Worker Units have the

opportunity to pre-examine

the request.

Additional Information can

be requested, if required.

Our Clients

Employers and their designated

representatives;

Community and service delivery

partners;

Currently only issue opinions for

temporary foreign workers who

do not require a Temporary

Resident visa, who are outside

of Canada, seeking to apply for

their work permit at a Port of

Entry.

Access for Clients

Employers/ representatives

have dedicated phone, fax and

email.

Requests can be submitted by

mail or fax.

Turnaround time for response

is approximately five business

days from receipt of query or

request for opinion.

Process of Seeking

an Exemption Opinion

Employer completes and

submits a form

requesting a TFWU

opinion on a work permit

or LMO exemption.

Onus is on the employer

to demonstrate that the

foreign worker meets the

exemption.

Request for Exemption Opinion

Request form includes:

Employer’s details

Employee’s details

Date of expected entry

into Canada

Rationale for requested

exemption

Relevant supporting

documents

Review of Request for Opinion

TFWU officer reviews the request against legislative and policy criteria.

Objective, verifiable documentary supporting evidence required.

The officer has the opportunity and ability to seek clarification or additional documentary evidence.

A phone interview with employer may also be required.

Positive Opinion

Positive opinion provided to

employer in writing in the form of a

letter or fax.

Positive opinion recorded in FOSS

under Client ID #.

The letter reminds the client that

final decision rests with officer at

the POE.

The letter advises the client to have

relevant documentation available to

present to the officer at the POE.

FOSS

Negative Opinion

Negative opinion provided to employer in writing in the form of a letter or fax.

Negative opinion recorded on FOSS under Client ID #, with underlying reasons.

The letter reminds the client that final decision rests with officer at the POE.

In most cases, employer referred to Service Canada to obtain LMO.

Benefits to Our Partners

Consistency of

approach

Better educated client

Reduced wait at the

Port of Entry (review

already completed)

A resource and pre-

screening for partners