Friday, June 11, 2010

The HR Space: Obtaining a Work Permit in Canada: The Simplified Process

A North American Free Trade Agreement (NAFTA) ...Image via Wikipedia
The HR Space is edited by: Dominique Launay, Karen M. Sargeant, and Brian P. Smeenk.
In our January 5, 2010 article, we discussed the usual process for getting a work permit for a foreign employee entering Canada: obtaining a Labour Market Opinion (or LMO). The LMO process can be complex, lengthy, and very demanding for employers. Fortunately, several exemptions exist that can provide you with a much faster, simpler process. Let's have a look at the most common of these LMO exemptions.

Intra-company transfers

This exemption is for workers who are being transferred to a Canadian parent, subsidiary, branch or affiliate of their American or other foreign employer.  Two types of workers are covered by this exemption: executives/senior managers, and employees who possess specialized knowledge.
Immigration Canada's guidelines define an executive or senior manager as someone who manages the company or an important part of it, usually through middle managers. When there are no employees under their direct supervision, it must be proved that they manage an important function of the company, at a senior level. Middle managers or first-line supervisors do not qualify for this exemption. In order to determine how senior a position is, Immigration Canada will not rely only on the position title.  They will rely mostly on the description of the role in the company's organization chart as well as the detailed job description.
An employee-applicant who possesses specialized knowledge must be very familiar with the company's products, services, processes or procedures. The knowledge must be unusual and different from what is usually found in the industry. It can be proprietary or unique to the company, but it is enough for it to be rare. Specialized knowledge does not include knowledge that could be gained by another employee in the short term.  An advanced level of knowledge of a particular industry that is not easily gained without extensive experience also qualifies under this category.
In addition, the employee must:
  • have worked for the foreign company in a similar position for at least one year in the three-year period right before his or her application, and
  • be transferred for a temporary period only.
Permits for executives and senior managers allow a maximum period of stay in Canada of 7 years. The maximum stay is limited to 5 years for specialized knowledge employees. The initial work permit may not exceed 3 years.

Young Worker Programs

Canada has signed bilateral agreements with a number of countries, including the U.S.A., in order to facilitate the work permit process for young workers between the ages of 18 and 35. Each agreement has its own specific requirements, but in general, it includes one or more categories that are LMO exempt:
  • Working Holiday: for young workers who want to work part-time while travelling to another country as a tourist;
  • International Co-op: for students who would like to gain international work experience in their current field of study; and
  • Young Professionals: for young workers who want to gain international work experience related to their career.
Each category comes with a yearly quota, so it is best to apply early in the calendar year. Work permit periods vary between 6 and 18 months, and are generally non-renewable. However, a worker may apply in another category (including an LMO-based permit) once he  or she has completed the authorized period.

The North American Free Trade Agreement (NAFTA)

The NAFTA offers simplified work permit criteria and processing for American and Mexican citizens. The most commonly used NAFTA LMO exemptions are for professionals and intra-company transferees.
Professionals
This exemption covers approximately 60 specified occupations, such as management consultants, engineers, architects, teachers, nurses or computer analysts. In addition to being a citizen of Mexico or the U.S., candidates must meet the educational and experience requirements for one of these occupations. They must enter Canada to provide pre-arranged professional services, either as an employee of the Canadian company, or as an independent contractor.
Intra-company transferees
The requirements under this category are similar to the general requirements mentioned above for regular intra-company transferees. The key difference is that managerial positions are not restricted to executive or senior managers.  The NAFTA exemption also applies to middle management roles.

Processing times and locations:

The Canadian Government office that will process a work permit application based on a LMO exemption will vary,  depending on the worker's nationality and whether they need an entry visa.
For American citizens or others who do not require a visa, the application can be presented to immigration officers at any Canadian port of entry.  A pre-approval process is also available.  That process will speed up the issuance of the work permit upon arrival in Canada. A written response is usually received within 10 working days from the date an application is submitted.
When a visa is required, on the other hand, the application must be presented to a Canadian Consulate or Embassy in the worker's country of residence. Processing times can vary from 2 weeks to 3 months (or more when an immigration medical examination is required).

Summary

One of these or several other LMO exemptions may apply to a specific case. A careful analysis of the context and circumstances of the employee being relocated is recommended. The review should be done at an early stage of preparation. It will help determine if an LMO exemption may apply and is usually very worthwhile. 
Remember that LMO exemptions can save you, as a work permit applicant or employer, lots of time, effort and money.  Make sure to take advantage of these rules.


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