Image via WikipediaIn addition to the standard requirements to apply for a labour market opinion (LMO) under each stream of the Temporary Foreign Worker Program (TFWP), Human Resources and Skills Development Canada (HRSDC)/Service Canada will also evaluate the following criteria starting April 1, 2011:
All employers must use the new LMO application form specific to each program stream, and provide:
an explanation of how hiring a temporary foreign worker (TFW) meets the employment needs of the employer; and
a signed statement attesting that the employer will abide by the Program requirements.
When applying for an LMO, all new employers to the TFWP will be required to provide a copy of their business licence or permit. Should an employer not be required by the municipality to obtain a licence or permit to operate, the documents listed below may be provided instead:
CRA documents, including: T4 Summary of Remuneration Paid, Schedules 100 and 125 of the T2 Corporation Income Tax Return, T2125 Statement of Business or Professional Activities;
business contracts for goods and/or services;
provincial workers compensation clearance letter or other appropriate provincial documentation; and
attestation by a lawyer, notary public or chartered accountant confirming that the employer exists and the type of business the employer operates.
Upon request, returning employers may also be asked to submit any or all of the documents listed above.
The genuineness of the job offer made to the TFW will be assessed based on whether the:
employer is actively engaged in the business in which the job offer is being made;
job offered to the TFW meets the employment needs of the employer, and is consistent with the type of business the employer is engaged in;
employer can fulfil the terms and conditions of the job offer; and
employer, or the third party representative acting on behalf of the employer, is compliant with the relevant federal-provincial/territorial employment and recruitment legislation.
All returning employers must demonstrate that they have met the terms and conditions of employment set out in previous LMO confirmation letters and annexes (if applicable). In addition, some employers may be required to submit documentation to support a more detailed employer compliance review (ECR), including any or all of the following documents:
payroll records;
time sheets;
job descriptions;
copies of the employer-employee contract;
collective agreements;
TFW’s work permit ;
provincial workers compensation clearance letter or other appropriate provincial documentation;
receipts for private health insurance (if applicable);
receipts for transportation costs; and
information about accommodations provided by the employer;
If it appears that employers did not fully respect the terms and conditions of employment set out in the LMO confirmation letters and annexes (if applicable), the employer will have the opportunity to provide a rationale. In this case, HRSDC/Service Canada will work with the employer to implement the appropriate corrective action, which may include providing compensation to the TFW. Employers may be found non-compliant if they refuse to provide a rationale and/or provide only partial compensation to the TFW.
If the employer is found to be non-compliant:
CIC may deem the employer ineligible to hire TFWs for two years. The employer’s name, address and period of ineligibility may also be published on a list of ineligible employers posted on CIC Web site.
On April 1, 2011, a number of significant changes to Canada's immigration laws and regulations respecting temporary foreign workers will come into effect. In order to ensure that no one is adversely impacted by these changes, it is important that all employers, HR professionals and foreign workers alike are fully educated and aware of these changes:
1. Four-Year Cap on Canadian Work Permits
Effective April 1, 2011, foreign nationals will only be permitted to hold a temporary work permit for a cumulative 4 years. After working in Canada for one or more periods totaling 4 years, the foreign national will be required to wait for at least 4 years before he or she may reapply for a work permit. Some exceptions to this rule will apply, including situations where:
The foreign national intends to perform work in Canada that would create or maintain significant social, cultural or economic benefits or opportunities to Canadian citizens or permanent residents.
The foreign national intends to perform work pursuant to an international agreement with Canada (such as the NAFTA, CCFTA, Canada-Peru Free Trade Agreement, GATS, etc.)
The foreign national is performing work in Canada while on a study permit
2. Two-Year Ban for Non-Compliant Employers
In an effort to protect the rights of foreign workers in Canada, the new regulations create the imposition of a 2-year ban on the hiring of any temporary foreign workers for employers who have failed to substantially provide the same wages, working conditions, or occupation offered to any work permit holder in the past two years. Commencing April 1, 2011, such compliance will be assessed at the time an application for an LMO or work permit is made and will consider the employment of any foreign worker in the company's employ in the 2 years prior. Any employers found to have been non-compliant will not only be subject to this 2-year ban, but will also have their name, address and period of ban published on a publicly available list.
3. Assessing the Genuineness of an Offer of Employment
These new regulations additionally implement a number of factors to be considered by officers in assessing the genuineness of employment offers before approving both Labour Market Opinions and LMO-exempt work permits. Specifically, the officer will look to the nature of the employer's business, the level of activity of the company's operations, the terms of the offer of employment, and the employer's ability to meet those terms (including payment of wages offered).
4. Additional Requirements for Employers of Live-In Caregivers
The regulations further establish certain employer-related requirements for live-in caregiver work permit applications, including the employer's need for a live-in caregiver, the provision of adequate accommodation, and his/her ability to pay the wages offered.
5. Limited Validity of Labour Market Opinions
Following HRSDC's announcement in May 2009 that all Labour Market Opinions would be issued with a limited validity of 6 months, the Canadian Government's new changes make it required by law for all Labour Market Opinions to have an expiry date. If the foreign national does not apply for a work permit within that timeframe, a new Labour Market Opinion will need to be obtained by the employer.
Image by Shaun Merritt via FlickrEmployers should be prepared for new restrictions on the Temporary Foreign Worker Program taking effect April 1, 2011. Employers will be required to demonstrate past compliance with program rules and commitments in order to participate in the program. Further, some foreign workers will be subject to a four-year limit on employment in Canada. Citizenship and Immigration Canada (CIC) will introduce new restrictions for the Temporary Foreign Worker Program (TFWP) effective April 1, 2011. Employers will be required to demonstrate their past compliance with program rules and commitments, and risk suspension from the TFWP for past program violations. In addition, some foreign nationals will be subject to a four-year limit on the time they can work in Canada under the TFWP. New Compliance Requirements for Employers
Effective April 1, 2011, employers seeking to hire foreign workers will have their compliance with TFWP requirements over the preceding two years assessed. CIC will examine whether a sponsoring employer has provided its TFWP workers with wages, working conditions and an occupation that were substantially the same as the terms and conditions of the job offer that supported the work permit application.
An employer who does not meet the terms and conditions of the job offer may be subject to a two-year probationary period during which it may not hire a foreign worker under the program, unless the employer can show its earlier noncompliance was justified. Acceptable justifications to excuse noncompliance can include:
A good faith error in interpretation by the employer concerning its obligations to the foreign worker, so long as the employer subsequently provided compensation or made sufficient attempts to do so to all foreign workers who were affected by the error;
An unintentional accounting or administrative error made by the employer, so long as the employer subsequently provided compensation or made sufficient attempts to do so to all foreign workers who were affected by the error;
If the employer implemented measures that did not disproportionately affect foreign workers in response to dramatic economic changes directly affecting the employer, or
Similar or related circumstances.
Citizenship and Immigration Canada will also maintain a public list of noncompliant employers on its website.
Though these new regulations do not take effect until April 1, they will apply to employers retroactively. As such, employers should review all work permits obtained on or after April 1, 2009 to ensure that the wages, working conditions and occupation have remained substantially the same as disclosed in the employer’s original offers of employment. If necessary, remedial action must be taken by the employer to ensure compliance with the regulations. Four-Year Employment Limit for Some Work Permit Holders
The new TFWP rules will limit some work permit holders to a cumulative maximum period of four years of work in Canada. Once the four-year cap is reached, these individuals will not be eligible to apply for another work permit for a period of four years. However, the new cap will not apply to certain workers who enter in a category that is exempt from the Labour Market Opinion (LMO) requirement. This includes foreign nationals holding work permits that are issued pursuant to an international trade treaty, such as NAFTA or the General Agreement on Trade in Services (GATS), or those holding positions that are exempt from LMO requirements because they create or maintain significant benefits for Canadians (such as intra-company transferees, among others).
Note that the four-year limit applies to employment authorization. It does not limit a foreign national’s stay in Canada to four years. In theory, those subject to the four-year work limit may be eligible to obtain another form of immigration status, such as student or dependent status, if they qualify. However, employers should still plan ahead and explore options for permanent residence for those foreign employees who may be subject to the four-year cap.
Image via WikipediaOperational Bulletin 262 – January 31, 2011 Launch of a Pilot Program to Expand the Post-Graduation Work Permit Program for International Students Graduating from Designated Private Post-Secondary Institutions in British Columbia Summary Effective January 31, 2011, the Post-Graduation Work Permit Program (PGWPP) has been expanded to include international students who have completed career training programs of eight months or longer at select private educational institutions in British Columbia. Issue Under a two-year Pilot Program with British Columbia, the PGWPP has been expanded to include international students graduating from select British Columbia Education Quality Assurance (EQA)-designated private post-secondary institutions in programs of eight months or longer. IMPORTANT: All work permits (WP) issued under this Pilot Program must be coded as indicated below (see Special Program Code under System Instructions) to support an effective evaluation of the Pilot. New Pilot Parameters This Pilot will be in effect between January 31, 2011, and January 31, 2013, inclusively and may be extended with a mutual agreement between the parties. These dates refer only to the period in which qualifying WPs can be issued and not to the duration of the WPs. The terms of the Pilot will apply only to qualifying foreign nationals who have graduated from eligible programs of study at select EQA-designated, private post-secondary institutions in the province of British Columbia (see list under Eligible Institutions). Pilot Procedures All of the general eligibility criteria, conditions of the WP and processing procedures for the PGWPP will continue to apply in conjunction with the following guidelines for the Pilot Program: A) Eligible Participants Applicants wishing to participate in this Pilot Program must meet the following additional criteria to qualify for a WP: · Must have graduated from one of the EQA-designated private post-secondary institutions in the Province of British Columbia designated by the Province of British Columbia as eligible institutions for the purposes of this Pilot which are listed below “Eligible Institutions” during the validity period of the Pilot Program; and · Must have completed a program of study that is at least eight months in length and received a degree, diploma or certificate upon completion. Furthermore, only career training programs will qualify for this pilot. General interest courses, or programs of study that consist primarily of English or French as Second Language instruction will not qualify. B) Eligible Institutions The following EQA-designated institutions have been named by the Province of British Columbia as eligible institutions under this Pilot Program: · Degree-Granting Institutions: Alexander College; Columbia College; Fairleigh Dickinson University Vancouver; Quest University Canada; Sprott-Shaw Degree College; Trinity Western University; University Canada West; and · Non-Degree Granting Institution: Arbutus College of Communication Arts, Business and Technology; Ashton College; Centre for Arts and Technology; Eton College; John Casablancas Institute of Applied Arts; Mountain Transport Institute Ltd.; MTI Community College; Pacific Institute of Culinary Arts; Sprott-Shaw Community College; Stenberg College; Vancouver Film School. C) Post-Graduation Work Permit Issuance · Consult section 5.24 of Overseas Processing (OP) 12 Manual – Students. · Use labour market opinion (LMO) exemption code C-43 in conjunction with paragraph 205(c)(ii) of the Immigration and Refugee Protection Regulations in support of the “competitiveness of Canada’s academic institutions or economy.” · Verify the eligibility of applicants pursuant to existing procedures to ensure that they meet the requirements of the pilot and the broader PGWPP. · Issue an open or open/restricted (depending on medical examination requirements, if applicable) WP to eligible applicants. D) System Instructions Special Program Code: Officers are required to use the NEW Special Program Code “ISP” (the long description is International Student Pilot Program for B.C.) in FOSS, GCMS, CAIPS, or, for inland processing, in the drop-down menu in the CPC system under “Special Programs”, for applicants meeting the requirements of the Pilot. The use of this special program code is mandatory and it will be important for statistical research, evaluation and policy development purposes. E) Validity and Duration A WP issued under this Pilot, like any other issued under the PGWPP, may be valid up to a maximum of three years depending on the duration of the program of study. If the program of study is two years or more, the student may be eligible for a three-year WP. Should the program of study be less than two years but at least eight months, the student may be eligible for a WP lasting for a period equal to the duration of the studies. For example, if the student graduated from an eight-month certificate program, he or she may only be eligible for a WP of an eight-month duration. F) Program Integrity Monitoring To remain eligible to participate in this Pilot, an institution must continue to maintain its EQA designation and comply with the guidelines of the Pilot and the Immigration and Refugee Protection Act (IRPA) and its Regulations. In circumstances where an institution loses its EQA designation, the Province of British Columbia will notify Citizenship and Immigration Canada (CIC) and the graduates of the institution in question will no longer be eligible for the Post Graduation WP as of the day the institution loses its EQA status. However, in the interest of administrative fairness, all applications received by CIC before the date of the EQA revocation, will be processed accordingly. Note: An institution may be removed from participating in this Pilot if that institution is found to be non-compliant with the Pilot’s guidelines and/or IRPA and its Regulations. G) Program Evaluation Ongoing monitoring and evaluation will be performed in partnership with the Province of British Columbia to determine the success of the Pilot Program. H) Further Information For additional information relating to the PGWPP, please refer to the CIC website atwww.cic.gc.ca/english/study/work-postgrad.asp.
Image via WikipediaOTTAWA, ONTARIO--(Marketwire - Jan. 18, 2011) -Haitians in Canada temporarily can now apply for work permits more easily, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today.
"Given the continued health and safety concerns in Haiti, ensuring that Haitian nationals who are currently in Canada temporarily can work and support themselves while they are here is paramount," said Minister Kenney. "It's important for Haitians already in Canada to know that if they need a work permit, they can now obtain one much more easily."
The Immigration and Refugee Protection Regulations generally require work permit applications to be accompanied by a determination by Human Resources and Skills Development Canada that there is no adverse impact on the labour market. This is known as a labour market opinion, or an LMO. By removing this requirement, Citizenship and Immigration Canada (CIC) is making it easier for Haitians who are here to work and maintain their immigration status.
Haitian nationals applying to extend their work permit will also receive continued coverage under the Interim Federal Health Program (IFHP). New applicants who are eligible for these measures will now also benefit from the IFHP.
These measures will take effect immediately and will apply to all Haitian nationals who were in Canada prior to January 13, 2011, and who are applying for a work permit or extending a work permit. The requirement for an LMO will remain in place for all those who arrived in Canada after that date.
Eligible individuals will have until September 1, 2011, to apply. Work permits are normally valid for one year.
For further information on work permits: http://www.cic.gc.ca/english/work/index.asp
If you are a graduate or will soon be graduating from a Masters program from one of Ontario’s publicly funded universities, you may be able to apply to Opportunities Ontario for nomination as a permanent resident, under the International Student Category’s Masters Graduate Stream.
Ontario’s Masters Graduate students do not require a job offer.
Here is some information that will help you complete the application process:
Who can apply as an international Masters graduate in Ontario?
In order to apply to Opportunities Ontario as an international Masters graduate in Ontario, students must:
Have completed a minimum of one academic year degree program, while studying on a full-time basis.
Apply within two years of the date on which their Masters degree was granted, or in the alternative, during the last semester of completing their degree.
Currently be residing in Ontario.
Have legal status in Canada (i.e. study permit, work permit, temporary resident visa)
Demonstrate high official language proficiency (For English language proficiency – IELTS – General test with a minimum score of 7 or higher) (For French language proficiency – TEF – with a minimum score of 5 or higher).
Demonstrate a minimum level of savings/income to support themselves and their dependants.
Demonstrate at least one year of residence in Ontario in the past two years.
You will need to submit the following documents to demonstrate that you meet Opportunities Ontario eligibility criteria and to confirm your identity, family situation and education:
A copy of your birth certificate.
A copy of all the pages of your passport. All prospective nominees should ensure that their passports will be valid for at least two years from the time that they submit their nominee application.
A copy of your work permit, study permit, temporary resident visa, and/or any other Canadian immigration document or entry stamp you have received. If these documents are inside your copied passport, you do not need to make additional copies.
Copy of each dependant’s passport page which shows his/her photo and personal information.
A certified true copy of relevant university degree(s) if the degree has been granted. If the degree has not been granted, you will need to submit:
Official letter (on institution letterhead) from the university which will be granting the Masters degree confirming:
all degree requirements have been successfully completed;
there are no outstanding fees to be paid; and
the scheduled date when your degree will be granted.
Official transcripts in sealed envelope sent directly from the academic institution which will be granting the degree.
If you are in your last semester of Masters studies, you will need to submit:
Official letter (on institution letterhead) from the academic institution which will be granting the degree confirming full-time registration and the current academic standing of the applicant
Official transcripts in a sealed envelope sent directly from the academic institution which will be granting the degree
The original score of your IELTS – General test with a minimum score of 7 or higher or TEF – with a minimum score of 5 or higher (obtained within the last year).
Personal bank account monthly statements for the past 6 months, or (if overseas) an original letter and monthly statements from a recognized financial institution indicating personal account standing/balance in accordance with the following schedule:
Number of family members
Funds required
1
$11,086
2
$13,801
3
$16,967
4
$20,599
5
$23,364
6
$26,350
7 or more
$29,337
A copy of ONE of the following to show proof of 1 year of residency in Ontario:
Monthly credit card statement, phone, hydro or energy bill in any accumulative 12 months in the past 2 years showing your full name and Ontario address
Leasing document or rent receipts demonstrating residence in any accumulative 12 months in the past 2 years showing your full name and Ontario address
How quickly will my application be processed?
Complete nominee application packages will be processed within 90 days, on a first-come-first-served basis.
Opportunities Ontario will target 1,000 nominations for 2010. Priority assessment will be given to those applicants who can demonstrate the strongest potential to settle successfully and permanently in Ontario.
What are the fees?
Opportunities Ontario will charge a non-refundable nominee application processing fee of $1,500 for all international students.
What happens after I am approved?
A Provincial Nomination Certificate will be issued for all successful nominees. Successful nominees must then apply to Citizenship and Immigration Canada (CIC) for permanent residence. A successful provincial nomination replaces the selection component under other immigration classes (such as the Federal Skilled Worker Class, and the Family Class). Provincial nominees will receive priority processing from CIC.
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 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.
Image via WikipediaIn addition to the standard requirements to apply for a labour market opinion (LMO) under each stream of the Temporary Foreign Worker Program (TFWP), Human Resources and Skills Development Canada (HRSDC)/Service Canada will also evaluate the following criteria starting April 1, 2011:
