For employers seeking to fill labour or skill shortages, foreign workers can be a valuable resource. However, the law governing the hiring and management of foreign workers is complex, and the immigration process daunting. Below is a brief overview of the steps employers must take when seeking to employ foreign nationals on a temporary basis.
Although Canadian employers may hire foreign workers temporarily or even permanently, the hiring process reflects the federal government’s policy that employment opportunities in Canada belong first to Canadian citizens and permanent residents.
The first step an employer must undertake in hiring a foreign work is to obtain a Labour Market Impact Assessment (“LMIA”). Service Canada must approve an employer’s application for an LMIA before a foreign worker can be granted a work permit by Citizenship and Immigration Canada. Designed to determine whether hiring a foreign worker will have a negative impact on the Canadian labour market, an LMIA essentially provides an employer permission to hire a temporary foreign worker.
Employers undergoing the LMIA process must also abide by certain advertising and wage requirements. The employer must first advertise the position on Service Canada’s Job Bank in addition to two other recruitment methods consistent with the hiring practice for the position being filled, one of which must be national in scope. All advertisements must run for at least four weeks prior to the LMIA application, and one must remain active until a decision on the application has been made. While the advertisement may specify a salary range, foreign workers must be paid at least the median prevailing wage for the position and location of the job, measured against Job Bank data.
Employers are required to pay a $1,000.00 processing fee, regardless of the outcome of the assessment.
Employers must provide the same occupation to the foreign worker as set out in the Offer of Employment and LMIA application, in addition to “substantially the same” wages and working conditions. Service Canada has broad powers to conduct inspections and employer compliance reviews at any time, including during LMIA applications, and may consider issues beyond wages and working conditions. Employers may be penalized for violating the Temporary Foreign Worker Program, with penalties including monetary fines, ineligibility periods for accessing the program, and publication of their name on a black list.
Once an LMIA has been issued, the foreign worker can apply for a work permit. Generally, a work permit is required for any business-related activity carried on in Canada by a person who is neither a Canadian citizen nor a permanent resident of Canada, for which remuneration is received or would reasonably be expected to be received.
There are some exceptions where foreign nationals may be exempt from these requirements. Intra-company transferees, for example, do not require an LMIA. They may apply for work permits if they are seeking entry into Canada to work in a parent, subsidiary, branch or affiliate of a multi-national company. They must be taking a position in an executive, senior managerial or specialized knowledge capacity, and must have been employed by the company outside of Canada in a similar full-time position for at least one year in the period preceding the application.
Similarly, foreign workers classified as “business visitors” do not require a LMIA or a work permit. Business visitors are foreign nationals temporarily entering Canada for international business activities. They cannot have an intention to enter the Canadian job market, must partake in activities international in scope, their primary source of remuneration must come from outside of Canada, and their profits must accrue outside of Canada.
There are also exemptions under NAFTA, and for international students, live-in caregivers, and the spouses or common law partners of foreign work permit holders.
The rules and regulations surrounding the employment of temporary foreign workers can change quickly, as the government responds to Canada’s evolving employment needs. A new federal program launched in June 2017 allows certain “high-growth companies” to fast-track highly skilled foreign workers with rare qualifications or unique expertise. The two-year pilot project, which will enable eligible workers to have their work permit applications processed in as little as 10 business days, is designed to help innovative companies grow by ensuring that they can quickly access highly skilled talent. The program, known as Global Talent Stream, also allows employers, universities and some research institutions to bring in international talent for short periods of time with no work permit whatsoever.