Immigration Recruitment: How to hire foreign workers while keeping the government off your back R. Reis Pagtakhan September 2012 Aikins, MacAulay & Thorvaldson LLP About the Author
Reis Pagtakhan is a Canadian corporate immigration lawyer who focuses on obtaining Canadian
temporary entry and permanent residency for senior executives, managers, professionals and
other company employees from all over the world.
A partner with Aikins Law, Reis has over 16 years of experience advising corporate clients and
individuals in immigration matters. He has been invited to speak on immigration law to
Canadian and international audiences by the Human Resource Management Association of
Manitoba, the Canadian Corporate Counsel Association, the Law Society of Manitoba, the
Manitoba Bar Association and the Community Legal Education Association of Manitoba.
Reis is active in promoting changes to immigration laws for the benefit of employers and
employees. He has presented position papers before the Minister of Citizenship and Immigration
and co-authored the Manitoba Bar Association's response to the Worker Recruitment and
Protection Act. A prolific writer, he has written over 70 articles on immigration law which have
appeared in local and national publications including the Winnipeg Free Press, HRmatters and
other professional services, legal, construction, and ethnic publications
Reach Reis at (204) 957.4640 or [email protected]. Follow him on Twitter or connect with him on
LinkedIn.
Table of Contents I.
Introduction ........................................................................................................................................... 1
II.
Complicated Employer Compliance Regimes - What HR professionals should know ........................ 1
a.
Employer Compliance under the Immigration and Refugee Protection Regulations ....................... 1
i.
The “Genuineness” Test................................................................................................................ 2
ii.
The “Substantially the Same” Test ............................................................................................... 2
iii. The “Cumulative Duration” test ................................................................................................... 3
b.
III.
Employer Compliance under the Worker Recruitment and Protection Act...................................... 4
Select Legal Situations Relating to Foreign Workers and Employer Compliance ........................... 5
a.
Employers’ Fiduciary Duties to Foreign Workers at Common law ................................................. 5
b.
Who is an “authorized representative”.............................................................................................. 6
c.
Temporary Foreign Workers and labour disputes............................................................................. 7
d.
Determining an individual’s legal entitlement to work in Canada ................................................... 7
e.
Immigration Issues in mergers and acquisitions ............................................................................... 8
IV.
V.
Maintaining Compliance – Why do it? ............................................................................................. 9
Maintaining compliance - Preparing the company database ................................................................ 9
VI.
How to hire temporary foreign workers.......................................................................................... 11
a.
Immigration Troubleshooting – Immigration medicals and criminal inadmissibility .................... 12
VII.
Supporting Permanent Residency ................................................................................................... 12
a.
Permanent Residency Options for employees ................................................................................ 12
b.
Is the Manitoba Provincial Nominee Program still relevant? ......................................................... 14
I.
Introduction
Over the last few years, the number of foreign workers entering Canada has increased
dramatically. In 2003, approximately 82,000 foreign workers were approved to work in Canada.
By 2010, that number increased to 182,000.
As more foreign workers entered Canada, laws governing foreign workers and their employers
changed. Today, Manitoba employers face complicated employer compliance regimes under
provincial and federal legislation. As well, recent court judgments have opened up the possibility
that employers may need to treat their foreign workers with greater care than their domestic
employees.
In terms of enforcement, governments are increasing their policing of immigration laws. In
April, a local Winnipeg restaurant owner was ordered to make charitable donations of $6,000
and was given a sentence of probation for illegally employing 6 foreign workers. The
government has taken the position that the sentence was too light and this case is currently under
appeal1. Last fall, a Canadian company was fined $36,000 for employing foreign nationals not
authorized to work in Canada2. In another case, an individual was fined $8,000 for telling a
group of foreign nationals to state they were coming to Canada to visit when they were coming
for work3.
II.
Complicated Employer Compliance Regimes - What HR professionals
should know
a. Employer Compliance under the Immigration and Refugee Protection Regulations
The primary law governing the employment of temporary foreign worker is the Immigration and
Refugee Protection Act. In April 2011, changes to the Immigration and Refugee Protection
Regulations came into effect which dramatically changed an employer’s obligations with respect
to the employment of temporary foreign workers. The main changes that were introduced can be
broken down into the “genuineness test” the “substantially the same test” and the “cumulative
duration test”
1
Winnipeg Sun, Crown Appeals Kento Sushi Owner’s Verdict, online: <www.winnipegsun.com/2012/05/02/crownappeals-kenko-sushi-owners-verdict>
2
CBC, Edmonton company fined for foreign workers, online:
<www.cbc.ca/news/canada/edmonton/story/2011/10/25/edmonton-company-foreign-workers.html>
3
Canada Border Services Agency, Prosecutions and Seizures, Pacific Region, News Release: Misrepresentation
nets man $8,000 fine, online: <www.cbsa-asfc.gc.ca/media/prosecutions-poursuites/pac/2011-10-07-eng.html>
Immigration Recruitment: How to hire foreign workers 1
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i.
The “Genuineness” Test
Under the Immigration and Refugee Protection Regulations, before a foreign national can obtain
a work permit, his/her employer must establish that the job offer is genuine. In assessing
“genuineness”, the following will be considered:
•
•
•
•
Whether the employer is actively engaged in the business;
Whether the job being offered is consistent with the employer’s employment needs;
Whether the employer can fulfill the terms and conditions of the job offer; and
Whether the employer, or any representative acting on behalf of the employer, is
compliant with relevant federal-provincial/territorial employment and recruitment
legislation4
In many cases, establishing the first three points will be relatively easy. The most significant
issue is with respect to the last point.
The requirement to show compliance is quite broad. Currently, Citizenship and Immigration
Canada has not clarified which employment law violations will result in the refusal of a work
permit5. When these regulations were first proposed in 2009, the Canadian Bar Association
expressed concern that a minor provincial Health Act violation (like an employee not wearing a
hairnet) could be the basis of determining noncompliance as a similar situation occurred under
Alberta’s Immigrant Nominee Program6. As a result, it is possible that violations of laws
unrelated to the work of a foreign national will result in the refusal of a work permit.
ii.
The “Substantially the Same” Test
In addition to having to prove “genuineness”, in cases where an employer hired a foreign worker
in the past two years, an assessment will be made as to whether the employer provided
“substantially the same” wages, working conditions and employment to their past or existing
foreign workers as set out in the offers of employment to these foreign workers. If an employer
cannot pass this test, work permits for new foreign workers will not be issued7.
Potential violations of the “substantially the same” test include:
•
Changing the terms and conditions of employment from what the employer agreed to in a
Labour Market Opinion confirmation;
4
s.200(5) of the Immigration and Refugee Protection Regulations
s.3.3.4 of Operational Bulletin 275-C – April 1, 2011: Temporary Foreign Worker – Operational Instructions for
the Implementation of the Immigration and Refugee Protection Regulatory Amendments
6
The Canadian Bar Association. Immigration and Refugee Protection Regulation amendments (Temporary Foreign
Workers).p.9.
7
s.200(1)(c)(B) of the Immigration and Refugee Protection Regulations
5
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•
•
•
•
Changing the hours of work per week a foreign national is to work;
Changing the wage paid to a foreign national;
Changing the location of work of a foreign national; and
Changing the job duties of a foreign national8
If it does not appear that the employer will pass the “substantially the same” test, employers
should explore whether they can establish a “reasonable justification”. If a “reasonable
justification” is established, this test will be passed. Examples of “reasonable justification”
include:
•
•
•
•
•
Changes to federal or provincial laws;
Changes to a collective agreement;
A dramatic change in economic conditions;
Good faith employer error; or
An administrative accounting error.9
The requirement to pass the “substantially the same” test does not depend on whether a work
permit is being sought for a new or existing employee. Noncompliance with respect to one
foreign national can affect the ability to hire any new foreign nationals – even those working in
unrelated jobs and at different sites.
For instance, if an employer represents that it will hire a foreign national as a mechanic at
$25/hour and only pays the mechanic $20/hour, the employer could fail this test. If, within two
years of this violation, the employer seeks to hire another foreign worker as the company CEO,
the failure to pay the mechanic the stipulated wage could result in the refusal of a work permit to
the CEO.
iii.
The “Cumulative Duration” test
As of April 2011, a four year limit on the amount of time a foreign national can work in Canada
has been imposed. In general, if a foreign worker works in Canada for four years, he/she will not
be eligible for another work permit until a further four years has passed 10. These regulations are
not retroactive. As a result, the four year calculation period begins on April 1, 2011 which means
that the earliest date a foreign worker can reach the limit is April 1, 201511.
8
Human Resources and Skills Development Canada. Temporary Foreign Worker Program Employer Compliance:
Requirements for the Temporary Foreign Worker Program: New Rules, p.8.
9
s.203(1.1) of the Immigration and Refugee Protection Regulations
10
s.200(2)(g) of the Immigration and Refugee Protection Regulations
11
s.2.6 of Operational Bulletin 275-C – April 1, 2011: Temporary Foreign Worker – Operational Instructions for
the Implementation of the Immigration and Refugee Protection Regulatory Amendments
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The four year limit does not apply to all foreign workers. Some of the exempt categories include
executives, managers, professionals, and persons employed pursuant to free trade agreements12.
While the four year limit is calculated cumulatively, gaps in employment (such as periods of
unemployment, extended unpaid leave, maternity/parental leave, and medical leave not covered
by employment contracts or agreements) will not count toward the cumulative duration period13.
b. Employer Compliance under the Worker Recruitment and Protection Act
In 2009, Manitoba introduced the Worker Recruitment and Protection Act (“WRAPA”) which
applies to most foreign workers hired by companies in Manitoba14. Amongst other things, under
WRAPA:
1. Employers of certain foreign workers must register with Employment Standards15;
2. Employers of certain foreign workers cannot directly or indirectly recover any costs
incurred in recruiting a foreign worker16.
3. If a foreign worker fails to report for work or is terminated for cause, the employer’s only
remedy is to sue17.
4. Employers cannot reduce the wages of foreign workers or reduce or eliminate any benefit
or term or condition of the foreign worker’s employment that was set out in the WRAPA
registration18.
It is important to note that a director or officer of the corporation who authorized, permitted or
acquiesced in the commission of an offence can be found to be personally liable.
WRAPA does not apply to the hiring of all foreign nationals. Some of the occupations that do
not require an employer to register under WRAPA include:
1. U.S., Mexican, Chilean, Peruvian, and Columbian professionals defined in various free
trade agreements with Canada;
2. Certain senior executives and managers from foreign parent, subsidiary or affiliate
companies coming to work in Canada;
3. Certain specialized knowledge employees from foreign parent, subsidiary or affiliate
companies coming to work in Canada; and
12
Annex B of Operational Bulletin 275-C – April 1, 2011: Temporary Foreign Worker – Operational Instructions
for the Implementation of the Immigration and Refugee Protection Regulatory Amendments
13
s.2.6 of Operational Bulletin 275-C – April 1, 2011: Temporary Foreign Worker – Operational Instructions for
the Implementation of the Immigration and Refugee Protection Regulatory Amendments
14
S. M. 2008, c.23
15
s.11 of the WRAPA
16
s. 16(1) of the WRAPA
17
s. 16(2) of the WRAPA
18
s. 17 of the WRAPA
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4. Certain emergency repair personnel19.
Because WRAPA does not apply in all temporary foreign worker situations, registration should
be avoided whenever legally possible because of the time cost associated with registration and
subsequent compliance and potential legal liabilities that may flow from it.
Employers required to register under WRAPA should note that when the federal government
amended provisions of the Immigration and Refugee Protection Act regulations regarding the
hiring of foreign workers in April 2011, no changes were made to WRAPA. This has created a
situation where Manitoba employers could be compliant under WRAPA but non-compliant
under Immigration and Refugee Protection Act regulations.
III.
Select Legal Situations Relating to Foreign Workers and Employer
Compliance
a. Employers’ Fiduciary Duties to Foreign Workers at Common law
In March, the B.C. Supreme Court certified a class action that was brought by a number of
foreign workers employed by a restaurant chain in B.C. In this case, Dominguez v. Northland
Properties Corporation20, one of the issues was whether the employer owed its foreign workers a
fiduciary duty to act in their best interests because foreign workers are more vulnerable than
other employees.
In this case, the foreign workers argued that they were vulnerable because their work permits
restricted them to working for a specified employer and in a specified occupation. As a result,
their work force mobility was restricted which gave their employer significant power and
discretion over their legal and practical interests.
Because the court action was only to certify whether a class action lawsuit could be pursued, the
issue of whether a fiduciary duty exists was not decided. However, the judge did find that this
was a valid enough argument for a trial.
The issue of whether employers owe fiduciary duties to temporary foreign workers is not new.
The judge in the Dominguez case cited a number of cases in which employers of foreign workers
were found to owe fiduciary duties including Mustaji v. Tjin - a decision of the B.C. Court of
Appeal21.
19
s. 4 of the Worker Recruitment and Protection Regulation, C.C.S.M. c. W197
2012 BCSC 328
21
(1995), 24 C.C.L.T (2d) 190 (B.C.S.C.), aff’d 25 B.C.L.R. (3d) 220 (C.A)
20
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While there are cases where employers are found not to owe a fiduciary duty to temporary
foreign worker employees, there is at least one case where the relationship between a temporary
foreign worker and an employer was considered in other contexts. In the 2010 wrongful
dismissal case of Nishina v. Azuma Foods, the B.C. Supreme Court decided that no fiduciary
relationship existed in this case. However, on a separate matter, the judge found that because the
employee’s immigration status restricted her ability to work for another employer, it was a factor
that could be considered in favour of a longer notice period22.
Do employers have fiduciary duties or additional duties of care to their temporary foreign worker
employees? Clearly, in appropriate circumstances, duties will be found. As well, even if a
fiduciary duty is not found, the fact that an employee is a temporary foreign worker may give the
temporary foreign worker a claim for additional damages in situations such as wrongful
dismissal.
It will be interesting to see how the Dominguez case is resolved. If such a ruling is made on the
issue of fiduciary duties, it could be ground breaking. In any event, it is clear that the current
case law indicates that the fact that foreign workers do not have the same work place mobility as
their Canadian and Canadian permanent resident co-workers, care should be taken by human
resource personnel when dealing with these employees.
b. Who is an “authorized representative”
In June 2011, the Cracking Down on Crooked Consultants Act became law. As a result, as of
June 30, 2011, only “authorized representatives” are allowed to provide immigration advice for a
fee. Under the Act “authorized representatives” include lawyers licensed to practice law in a
Canadian jurisdiction, Quebec notaries, certain paralegals and law students, licensed immigration
consultants, and certain organizations that have agreements with the Government of Canada.
Previously, advice provided before an immigration application was filed or an immigration
proceeding was commenced was not regulated. Organizations and individuals who do not
charge fees to assist individuals with immigration matters would still be allowed to provide
advice on immigration matters.
The law prohibits both “direct” and “indirect” payments for immigration advice to
representatives who are not authorized. As a result, businesses who hire immigration
representatives to act on their behalf and on the behalf of their employees should confirm that
their representative is an “authorized representative”. If a representative it not authorized, an
application may be returned resulting in delays and could result in a person being refused entry
to Canada.
22
2010 BCSC 502 (CanLii)
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c. Temporary Foreign Workers and labour disputes
If a labour dispute exists at a workplace, immigration law prohibits issuing work permits if the
foreign worker’s intended work could adversely affect the settlement of the labour dispute or the
employment of any person involved in the dispute. The one exception to this rule is where all, or
almost all, of the individuals on strike are foreign workers and issuing a work permit would not
contravene existing provincial legislation23.
While new foreign workers cannot enter Canada to work during a labour dispute, foreign
workers already in Canada when a labour dispute commences have different rights. Foreign
workers already in Canada can take part in lawfully authorized strikes. These workers are
entitled to strike pay at the same rate as other employees in the same situation24.
d. Determining an individual’s legal entitlement to work in Canada
Under the Immigration and Refugee Protection Act,25 an employer who employs a foreign
national who is not legally entitled to work for their company in Canada is in violation of the
law26 and could face fines of up to $50,000, jail time of up to 2 years, or both.27
Because of the way the law is written, an employer who employs a foreign national in an
unauthorized capacity is “deemed” to know this28. As a result, employers are guilty until proven
innocent.
In order for an employer to prove its innocence, it must prove that it exercised “all due
diligence”29 in determining whether a foreign national can legally work in Canada for their
company. In this immigration context, the following steps should be considered:
1.
2.
3.
4.
Ask the employee whether they are legally entitled not only to work in Canada but
legally entitled to work in Canada for your company.
Review the employee’s Social Insurance Number to ensure that it does not start with a
number “9”. SINs that begin with a “9” are issued individuals who at the time of the
application were foreign workers;
If the SIN begins with a “9”, review the employee’s immigration documents to make sure
that he/she is legally entitled to work in Canada;
Call Service Canada to confirm the validity of the SIN; and
23
s. 200(3) of the Immigration and Refugee Protection Regulations
s. 82. Of the Foreign Worker Manual
25
Immigration and Refugee Protection Act, S.C. 2001, c.27 (“IRPA”)
26
s.124(1) of the IRPA
27
s.125 of the IRPA
28
s.124(2) of the IRPA
29
s. 124 (3) of the IRPA
24
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5.
Ask Citizenship and Immigration Canada whether the employee is legally entitled to
work for your company in Canada.
e. Immigration Issues in mergers and acquisitions
If a company that is the focus of a merger or acquisition (the “target company”) relies on
multiple foreign workers or even a small number of key foreign workers for its operations,
merger and acquisition professionals will want to ensure compliance with immigration
regulations.
In these types of transactions due diligence may require the review of all: contracts with foreign
workers, work permits, labour market opinions, and agreements with recruiters. The failure to
deal with these issues could result in difficulties in concluding these transactions. In addition, in
financing transactions, it is possible that lenders could be less willing to lend if they determine
that key employees who are responsible for the success of the company would be legally
prohibited from staying with the company after closing.
Purchasers of businesses will also want to ensure that the target company’s key human resource
will be able to continue to work for the newly owned company after a merger or acquisition
transaction is completed.
For instance, under immigration law, intra-company transferees can work in Canada as long as a
cross-border intra-company relationship exists. In some merger and acquisition transactions, a
Canadian company will purchase a foreign company’s Canadian subsidiary. Upon the conclusion
of the transaction, a cross-border intra-company relationship would cease to exist. In these cases,
intra-company transferees would lose their entitlement to work in Canada.
In other cases, it is important to determine whether an employer is a “successor in interest’. A
“successor in interest” is a company that substantially assumes the interests, obligations, assets
and liabilities from the original owner and continues to operate the same type of business as the
original owner30. If some assets or liabilities are not assumed, a “successor in interest”
relationship may not exist. In these cases, foreign workers employed by the former entity will not
be able to work for the new employer.
Even if a foreign national is allowed to work for the merged or acquired company, where there is
a business or corporate name change, Citizenship and Immigration Canada recommends that new
work permits be applied for by all foreign nationals within 90 days. This is recommended to
avoid any confusion as to who the legal employer is subsequent to a name change.
30
Appendix I of the Foreign Worker Manual
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IV.
Maintaining Compliance – Why do it?
The price of non-compliance can be high. Under Canadian law, an employer who employs a
foreign worker who is not authorized to be employed in Canada can face fines of up to $50,000
as well as a term of imprisonment of not more than two years31. In addition, a person who
counsels an individual to misrepresent themselves (e.g. an employee of the company who
counsels foreign nationals to lie or mislead immigration officers) can face fines of up to
$100,000 and terms of imprisonment of not more than five years32.
On an administrative basis, failure to comply with immigration laws can also result in a number
of negative consequences. In addition to being prohibited from hiring future foreign nationals, an
additional consequence is that the employer may also be listed on the publicly available
“Employer Ineligibility List” or blacklist for a violation of certain immigration laws33.
If an employer finds itself on the “blacklist”, the company bar on hiring foreign workers will
affect all levels of applications. A failure to comply with the conditions regarding the hiring of a
lower skilled foreign worker can result in a company being barred from hiring a foreign national
to become president or CEO of the company.
Because of the national impact of these regulations, companies with offices and operations in
various areas of Canada could be prevented from hiring foreign workers because of an
immigration violation that took place in another office. As a result, company-wide procedures
when dealing with foreign workers should be clearly developed to ensure compliance.
V.
Maintaining compliance - Preparing the company database
The laws governing companies that hire foreign workers provide a formal framework that allows
government to investigate employers for violations of immigration and recruitment laws. Under
federal immigration regulations, employers of foreign workers may now be subject to a Canadian
government Employer Compliance Review. Under Manitoba legislation, employers of foreign
workers can be investigated by Employment Standards.
Because of these increased compliance requirements, it is important for employers to maintain
records that demonstrate that they have complied with the requirements of immigration and
recruitment legislation. In particular, it is important to be able to prove that employers have
employed all of their foreign workers – past and present – in accordance with the representations
that were initially made by both the company and the foreign worker to government. This
requires that employers maintain the following documents on their files.
31
ss.124(1)(c) and 125 of the Immigration and Refugee Protection Act
ss. 126 and 128 of the Immigration and Refugee Protection Act
33
ss.203(5) and (6) of the Immigration and Refugee Protection Regulations
32
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•
•
•
•
•
•
Payroll records - To prove the appropriate wage and overtime are being paid, source
deductions are being made, and to explain any non-standard deductions
Time sheets – To prove that workers are working the number of hours set out in the
immigration related filings.
The Temporary Foreign Worker’s job description – To determine if the Temporary
Foreign Worker is working in an approved occupation and under the same labour
standards as their Canadian counterparts.
The Temporary Foreign Worker’s work permit – To ensure the work permit’s
information reflects information on any associated Labour Market Opinion.
Registration with provincial/territorial workplace safety – To ensure that Temporary
Foreign Workers are covered in case of injury.
In the case of foreign workers subject to the Worker Recruitment and Protection Act:
o complete and accurate records of any expenses incurred by the employer in
recruiting a foreign worker;
o records of expenses incurred by the employer by any employee who was
involved in the recruitment of the foreign worker;
o the contract or agreement the employer had with any recruiting company;
o the contract or agreement the employer has with the foreign worker.
Employers of foreign workers in occupations requiring lower levels of formal training or hired
under the Seasonal Agricultural Worker Program may need to provide additional information.
In order to minimize risks to the employer and to its HR employees, employers should
implement systems that allow HR personnel signing on behalf of the employer in immigration
matters to make all required declarations truthfully. Some of the information that employers
should maintain their employee databases include:
•
•
•
•
•
•
•
•
The validity date of each foreign worker’s status in Canada;
The expiry date of each foreign worker’s status in Canada;
The National Occupational Classification code assigned to each foreign worker upon
entry to Canada by Citizenship and Immigration Canada or the Canada Border Services
Agency;
The expiry date of the foreign worker’s social insurance number;
Copies of the foreign worker’s employment contract;
If the foreign worker is subject to a collective agreement, information as to the salary and
benefits the foreign worker is entitled to under the collective agreement;
If a foreign worker does not have a written employment contract or is not subject to a
collective agreement, any documents or notes setting out the foreign worker’s salary
and/or benefits including correspondence between the foreign worker and the employer
and notes of discussions between the foreign worker and representatives of the employer;
Copies of all correspondence between the employer and government offices in
connection with each foreign worker including:
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•
•
•
•
•
•
Copies of all immigration related applications filed by the employer or foreign worker
with Service Canada, Citizenship and Immigration Canada, the Canada Border Services
Agency, and, if in Manitoba, Employment Standards;
If the foreign worker travels in and out of Canada during their authorized period of stay,
all records regarding the foreign worker’s travels;
All documents confirming that the foreign worker was paid and provided benefits in
accordance with the foreign worker’s contract and in accordance with representations the
company has made to government departments;
If there are gaps in the employment of the foreign worker while the foreign worker is in
Canada (such as periods of unemployment, extended unpaid leave, medical leave, or
maternity and parental leave), information as to the length of these gaps and whether
these gaps were covered by employment contracts or in agreement;
Any notes and correspondence the employer exchanged with government departments
related to whether the foreign workers are legally entitled to work in Canada for the
company; and
Copies of all original documentation issued to the foreign worker proving their legal
status to work in Canada for the company.
Please note that where an employer has multiple branches or offices, a centralized system should
be set up that would allow HR professionals in those separate branches and offices to access
relevant information for the purposes of the representations they will be required to make. The
reason for this is that the representations that need to be made will apply to the entire company,
regardless of the location where the foreign worker will work.
VI.
How to hire temporary foreign workers
When a company wants to hire a foreign national to work in Manitoba, the first questions that
should be asked are as follows:
A. What will the employee be doing in Canada?
B. What is the employee’s country of citizenship?
C. What is the employee’s country of permanent residency?
D. Where has the employee been living for the past 12 months?
The first question to be asked will identify whether the activities the foreign national will carry
out in Canada will qualify him/her as a business visitor. Business visitors do not need work
permits to work in Canada34 and, as a result, if a person qualifies a business visitor, this is
preferred. This being said, what a business visitor can do in Canada is greatly restricted and is
not appropriate for most individuals who will be working in Canada for extended periods of
employment.
34
s.186 of the Immigration and Refugee Protection Regulations
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If a foreign national does not qualify as a business visitor, the next thing is what must be done to
obtain a work permit for the foreign national. When assessing the type of work permit a
company should look first to the intra-company transfer and free trade professional categories
since these categories do not require the Canadian company to go through a series of government
approvals showing that they attempted to recruit Canadians and Canadian permanent residents.
If a company must establish domestic recruitment attempts, that company normally must apply
for what is called a Labour Market Opinion. A Labour Market Opinion is an opinion issued by
Canada’s department of Human Resources and Skills Development in which this department
opines on whether a company can hire a foreign national for a position. This process can be
lengthy and requires an employer to go through a number of tests to prove it first tried to recruit
domestically.
Once a determination is made as to what type of work permit, if any, is needed, questions
regarding citizenship and residency become important. The reason that these questions need to
be asked because Canada has different entry rules for citizens or residents of different nations. A
person’s citizenship or residence will often dictate the immigration options that are available and
the amount of time it will take a foreign national to obtain authorization to enter Canada.
a. Immigration Troubleshooting – Immigration medicals and criminal inadmissibility
Under Canadian law, foreign nationals who have been convicted outside of Canada of certain
crimes can be found to be inadmissible to Canada. If inadmissible, the foreign national cannot
enter Canada unless special permission is obtained, even if he or she otherwise qualifies for
entry.
There are numerous instances of people refused entry to Canada upon arrival at a Canadian
airport or border crossing. As a result, before any foreign employee seeks entry to Canada, these
issues should be canvassed to determine whether a problem could exist upon entry.
While Canada also has rules that makes people inadmissible to Canada for medical reasons35,
security reasons36, and other reasons, the most common issues companies face are with
employees who may have issues relating to criminal inadmissibility.
VII.
Supporting Permanent Residency
a. Permanent Residency Options for employees
35
36
s.38 of the Immigration and Refugee Protection Act.
s.34 of the Immigration and Refugee Protection Act.
Immigration Recruitment: How to hire foreign workers 12
while keeping the government off your back
by R. Reis Pagtakhan, Aikins Law
p:204.957.4640
e:[email protected]
In order for foreign workers to remain in Canada permanently, these individuals must apply for
and successfully obtain Canadian permanent residency.
At present, there are three main options available to foreign workers who want to become
permanent residents – the Manitoba Provincial Nominee Program, the Federal Skilled Worker
Class and the Canadian Experience Class.
In August, Citizenship and Immigration Canada introduced changes to the Federal Skilled
Worker Class and Canadian Experience Class that are to take effect in January 2013. In addition,
Citizenship and Immigration Canada also introduced a new Federal Skilled Trades Class geared
towards tradespeople that is also to take effect in January 2013. As a result, for the purposes of
this paper, I will discuss the Federal Skilled Worker Class, Canadian Experience Class and
Federal Skilled Trades Class as set out in the proposed changes.
The Manitoba Provincial Nominee Program has a number of different immigration streams that
allow individuals to immigrate to Canada. Of the various immigration streams that are available,
the best option for temporary foreign workers under this program is the Employer Direct Stream.
In order to qualify under the Employer Direct Stream, a foreign national must have been working
for at least six months in Manitoba as a temporary foreign worker with a valid temporary work
permit. In addition, the foreign national’s employer must offer the foreign national a full-time,
long-term job. Under the Employer Direct Stream, any temporary foreign worker is welcome to
apply.
Under proposed changes to the Canadian Experience Class, a foreign national will need to have
worked 12 months as a temporary foreign worker in the last 3 years to qualify. However, not all
employees would qualify under the Canadian Experience Class. The Canadian Experience Class
is restricted to occupations that fall within certain skill levels in Human Resources and Skills
Development Canada’s National Occupational Classification. Essentially, only skilled
tradespersons, professionals and manager/executives would qualify under the Canadian
Experience Class.
Under the Federal Skilled Worker Class, foreign nationals must score a minimum number of
points under a point system to qualify. While the point system is set-up to allow for a variety of
applicants to be able to qualify, the proposed changes would make it easier for younger
immigrants (those aged 18 to 35) with Canadian work experience and proficiency in one or both
of the official languages to qualify. Older immigrants, immigrants without Canadian work
experience, and immigrants with lower proficiency in English and French will have a much
harder time to qualify. Like the Canadian Experience Class, this class will only be open to
skilled tradespersons, professionals and manager/executives.
The newly proposed Federal Skilled Trades Class will apply only to skilled tradespeople. This
new class will allow tradespeople with an offer of employment or certificate of qualification
Immigration Recruitment: How to hire foreign workers 13
while keeping the government off your back
by R. Reis Pagtakhan, Aikins Law
p:204.957.4640
e:[email protected]
from a provincial authority to apply to immigrate. Amongst the requirements, applicants will
need to demonstrate some language and work experience as well as that they are qualified in an
occupation on a set list of trades.
b. Is the Manitoba Provincial Nominee Program still relevant?
With proposed changes to the Federal Skilled Worker Class, Canadian Experience Class and the
introduction of the Federal Skilled Trades Class, the relevance of the Manitoba Provincial
Nominee Program will decline.
In recent years, the Manitoba Provincial Nominee Program has been the immigration option of
choice for Manitoba employers and employees. However, the new options – especially the
revised Canadian Experience Class – may change what the best option for temporary foreign
workers and their employers in Canada.
Currently, Canadian Experience Class applicants must be working for 24 months in Canada to
apply. Once an application is filed, Canadian Experience Class applications take approximately
14 months to process. As a result, a temporary foreign worker who arrives in Canada for work
would normally expect to wait at least 38 months to become a permanent resident.
By reducing the time required to work in Canada to 12 months, Canadian Experience Class
applicants may only need to wait 26 months to become a permanent resident (assuming that
Canadian Experience Class processing times in the new system stay at around the same time).
Under the Manitoba Provincial Nominee Program, applicants need only wait 6 months to apply.
Once application is made, Manitoba can issue an approval in three months or less. However,
unlike the Canadian Experience Class however, Manitoba approval does not result in permanent
residency. Manitoba Provincial Nominee Program approved applications must still be filed with
Citizenship and Immigration Canada for processing.
Lately, Citizenship and Immigration Canada has indicated that they are taking 10 months to
process Manitoba Provincial Nominee Program applications. As a result, when the new Canadian
Experience Class is introduced, the difference in waiting times between it and the Manitoba
Provincial Nominee Program could be 7 months or less.
If the waiting times between the two programs are only a few months, it may be better to for
employers to use the Canadian Experience Class as opposed to the Manitoba Provincial Nominee
Program for the following reasons:
Immigration Recruitment: How to hire foreign workers 14
while keeping the government off your back
by R. Reis Pagtakhan, Aikins Law
p:204.957.4640
e:[email protected]
1. Under the Manitoba Provincial Nominee Program, foreign nationals can be refused
permanent residency if they lose their jobs before a final visa is issued. Under the
Canadian Experience Class, current employment will not be necessary.
2. Under the Manitoba Provincial Nominee Program, foreign nationals must demonstrate an
intent and ability to establish in Manitoba. As a result, if an employer wishes to transfer a
foreign national employee to another province during the time the foreign national’s
application is being processed, the transfer of that employee could result in permanent
residency being refused. Under the Canadian Experience Class, the province or territory
of destination in Canada is not relevant.
3. While certain occupations are exempt from registration under the Worker Recruitment
and Protection Act in the temporary foreign worker process, the Manitoba Provincial
Nominee Program sometimes requires employers to register under Worker Recruitment
and Protection Act should their employees wish to immigrate pursuant to the Manitoba
Provincial Nominee Program. In these situations, in may be better for the employer to use
the Canadian Experience Class to avoid any obligations that it may incur under Worker
Recruitment and Protection Act.
It should be noted that the Canadian Experience Class, Federal Skilled Worker Class and Federal
Skilled Trades Class will not work in all cases. All three of these programs will still require that
a temporary foreign national be working in certain skilled occupations. As a result, in cases
where a temporary foreign national’s occupation falls within a lower skilled category, the
Manitoba Provincial Nominee Program may be the only option.
As well, the Canadian Experience Class, Federal Skilled Worker Class and Federal Skilled
Trades Class require all foreign nationals to meet minimum language requirements. While the
Manitoba Provincial Nominee Program requires that foreign nationals in lower skilled category
meet minimum language requirements, minimum language requirements are not required for
higher skilled occupations. As a result, if there are language difficulties for these types of
employees, the Manitoba Provincial Nominee Program may be the best option.
Immigration Recruitment: How to hire foreign workers 15
while keeping the government off your back
by R. Reis Pagtakhan, Aikins Law
p:204.957.4640
e:[email protected]