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

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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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Advertising requirements before hiring a foreign worker

Canada
June 2 2010
By:Fasken Martineau DuMoulin LLP

In our January 2010 article entitled Obtaining a Work Permit in Canada: The Labour Market Opinion Process, we explained that in order to get a work permit for a foreign worker, an employer in Canada generally must first obtain a Labour Market Opinion (LMO) from the Department of Human Resources and Skills Development Canada ("Service Canada"). In order to obtain a positive LMO, Canadian employers must prove that they have made reasonable efforts to fill the position with a Canadian citizen or permanent resident. This article discusses Service Canada's advertising requirements relating to this obligation.

Service Canada's minimum advertising requirements were recently modified. And note that the requirements are slightly different for the Province of Québec. If you are hiring an employee who will work in Québec, make sure you follow the Québec rules.

The advertising requirements depend on the level of skills required for the position. In Canada, there is a National Occupational Classification (NOC) system that classifies all jobs. Before starting a recruitment process, it is necessary to identify the code that corresponds to the position to be filled. Occupations are classified in five levels: 0 (management), A (university education usually required), B (either a college education or apprenticeship training usually required), C (secondary school and/or occupation-specific training usually required) or D (on–the-job training usually provided).

Placing an ad at Service Canada's National Job Bank is mandatory before hiring a non-Canadian in any position at skill level B and lower, except when an explicit exemption applies. Positions at levels 0 and A are the only ones for which an advertisement on the Job Bank is not mandatory.

In order to meet the advertising requirements for occupations at levels 0 or A, employers must conduct recruitment activities consistent with the practice within the occupation. For instance, if the normal practice for a certain occupation is to hire a headhunter, or to advertise on well-known internet job sites, journals or national newspapers, either recruitment method will be considered satisfactory. Alternatively, the prospective employer may advertise on the Job Bank for a minimum of 14 calendar days during the three months prior to applying for the LMO.

For occupations at skill level B and lower, both advertisement on the Job Bank and recruitment activities consistent with the practice within the occupation are necessary.

The contents of the advertisement are important. Ads placed on the Job Bank must include certain mandatory information, including the company's name, the wage range and the prevailing wage for the position. Prospective employers are advised to follow very carefully Service Canada's directives. Omission of any information or requirement (for instance, advertising for thirteen days instead of fourteen days) is cause for refusal of the LMO.

The ads have to be carefully drafted since they should provide a fair opportunity to potentially qualified Canadian citizens or permanent residents to be a candidate. At the same time they have to be specific enough to discourage applications from those who are clearly unqualified. Particular attention should be given to the education and experience requirements. These should be appropriate for the type of position and consistent with the requirements for this position according to the NOC.

Afterwards, the employer has to provide proof of these recruitment efforts and provide a report. The report should include the number of applicants for the position and the reasons for rejecting them. The reasons for rejecting applicants should be appropriate and based on objective and clear criteria. Employers should retain proof of recruitment efforts for a minimum of two years, since Service Canada may later contact the employer for verification of the report.

Note that there are certain variations to the minimum advertising requirements for some categories of employees or positions including: academics (university professors), camp counselors who will be working in Ontario, positions covered by collective bargaining agreements that stipulate internal recruitment, positions for which recruitment is done through employer associations, positions in the entertainment sector, positions with a foreign government's representative in Canada, information technology specialists (until September 30, 2010), holders of a post graduation work permit issued after graduating from a Canadian university, company owners who are involved in the day-to-day operation of the company, specialized service technicians and service providers under a warranty, amongst others.

Advertising properly is not the only requirement for obtaining a positive LMO, but is one that deserves considerable attention. Be sure that you meet them all. Also, before starting a recruitment process when contemplating applying for an LMO, do not forget that there are exemptions to the obligation to obtain an LMO (see our March 2010 article Obtaining a Work Permit in Canada: The Simplified Process). Using these exemptions can save prospective employers considerable amount of time, effort and money.

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Ottawa Tightens Regulation Over Immigration Consultants

AHN News Staff

Ottawa, Ontario, Canada (AHN) - Canadian Immigration Minister Jason Kenney will introduce in Parliament on Tuesday a bill that would tighten the country’s regulation over immigration consultants. The proposed Cracking Down on Crooked Consultants Act will allow filing of criminal charges against unregistered immigration consultants.

The bill imposes a $50,000 penalty and two-year prison term for convicted unregistered immigration consultants.

Kenney authored the bill because of mounting complaints against bogus immigration consultants who take advantage of foreigners who want to enter Canada. Among the wrong practices of these consultants are charging applicants for refugee claims even if the applicants are not real refugees or failing to complete the documentation even if the applicant has fully paid the consultant’s fees.

The bill would not affect unpaid third parties who also provide immigration advice. In that category are family members, friends and not-for-profit community groups.

Read more: http://www.allheadlinenews.com/articles/7018914528?Ottawa%20Tightens%20Regulation%20Over%20Immigration%20Consultants#ixzz0qGczmqZL

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Ottawa-Gatineau adds 2,300 jobs in May

By Robert Bostelaar , The Ottawa Citizen June 4, 2010

OTTAWA — Ottawa-Gatineau added another 2,300 jobs in May, extending a growth spurt that has boosted employment in the capital by 26,000 in the past 12 months.

Despite the increase, part of an unexpected jump of 24,700 new jobs across Canada, a rise in the number of people looking for work kept the region’s jobless rate at 6.0 per cent.

The national unemployment rate stayed at 8.1 per cent, again because more job-seekers entered the labour market, Statistics Canada reported.

May’s growth brought employment in Ottawa-Gatineau to 676,000, surpassing the previous high mark of 674,900 in November 2008, just before the economy was derailed by recession.

Proportionately, however, the region’s employment remains below record levels. Of residents aged 15 and over, 68.5 per cent held jobs last month, compared to 71.2 per cent in November and December 1988.

But Statistics Canada labour analyst Vince Ferrao says the jobs added since May 2009 signal a strengthening economy.

“Over a year it’s gone up by 26,000, and that’s a growth rate of four per cent over 12 months. That’s very healthy,” he said Friday.

Among sectors gaining jobs: retail and wholesale; finance, insurance, real estate and leasing; public administration, and health care and social assistance.

Manufacturing and high tech remain down from a year ago, but Statistics Canada said the tech sector gained an estimated 1,500 jobs in May, bringing it to 47,900.

OTTAWA— The Canadian economy added a greater-than-expected 24,700 jobs in May, the fifth consecutive monthly gain, Statistics Canada reported Friday.

The unemployment rate remain unchanged at 8.1 per cent, the federal agency said, as more people entered the labour market in search of jobs.

Across Canada, jobs were added for a fifth consecutive month.

Full-time employment rose by 67,300 in May, while part-time positions fell by 42,500. The private sector accounted for 43,400 new positions during the month, with the public sector added 9,400 jobs. However, there were 28,000 fewer self-employed workers in May, Statistics Canada said.

Economists had expected about 15,000 jobs to have been created in May, following a record-breaking 108,700 new positions the previous month. Still, most forecasters thought the unemployment rate would ease to eight per cent.

The strongest job gains were in transportation and warehousing, and health care and social assistance. Public administration and agriculture were also higher. The biggest declines were in the information, culture and recreation sectors, as well as in the accommodation and food services, and natural resources industries.

Ontario, Alberta, Newfoundland and Labrador, and Nova Scotia all saw employment gains in May, while British Columbia and Prince Edward Island lost jobs.

Meanwhile, average hourly wages rose 2.4 per cent in May, in line with gains in the same month a year earlier.

“Over the next few months, we expect the pace of job creation to move back within the 20K to 40K range, as the Canadian economic recovery continues to gain self-sustaining momentum. The unemployment rate should continue its downward trajectory,”said Millan Mulraine, economics strategist at TD Economics.

On Tuesday, the Bank of Canada began cranking up its key lending rate for the first time in nearly three years. The central bank increased borrowing cost by 25 basis points to 0.5 per cent amid signs the domestic economy is rebounding strongly, even as the global recovery appears “uneven.”

Canada’s economy grew at a faster pace than expected in the first quarter of this year, led by consumer spending. Gross domestic product rose at an annualized pace of 6.1 per cent between January and March, the biggest jump since the last quarter of 1999, Statistics Canada reported Monday.

“The solid employment gain over the past few months highlights the positive momentum in the Canadian economy, and reinforces the Bank of Canada’s rationale to hike rates earlier this week despite the turmoil in Europe,”said Benjamin Reitzes, an economist at BMO Capital Markets.

Read more: http://www.ottawacitizen.com/business/Ottawa+Gatineau+adds+jobs/3112728/story.html#ixzz0pvnJnb3O