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Benjamin A. Kranc
425 University AvenueSuite 200Toronto, Ontario M5G 1T6Tel: (416) 977-7500E-mail: [email protected]: www.kranclaw.com
A Passport to Effective Foreign Worker Recruitment
____________________________Understanding Canadian Immigration
IRPA/R: Immigration and Refugee Protection Act/Regulations MESD/ESDC: Ministry of Employment and Social Development Canada
(previously HRSDC) Service Canada(SC): Administers MESD/ESDC Programs LMIA: Labour Market Impact Assessment
(previously LMO)
NOC: National Occupational Classification CEC: Confirmation Exemption Code CIC: Citizenship and Immigration Canada CBSA: Canada Border Services Agency
NAFTA: North American Free Trade Agreement GATS: General Agreement on Trade in Services CCFTA: Canada Chile Free Trade Agreement CPFTA: Canada Peru Free Trade Agreement CCoFTA: Canada Colombia Free Trade Agreement CSKFTA: Canada South Korea Free Trade Agreement
Require LMIA and Work Permit◦ Requirements Set Out in IRPR s. 203
Require Work Permit; LMIA Exempt◦ Intra-Company Transferees
◦ NAFTA, GATS, CCFTA, CPFTA, CCoFTA, CSKFTA Professionals
◦ Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other
Work Permit Exempt◦ Business Visitors
◦ Other Exemptions
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Whether:
Work is likely to result in job creation/retention Work is likely to result in creation/transfer of skills
and knowledge to Canadians Work is likely to fill a labour shortage Work offered at prevailing wages and appropriate
work conditions Employer has made reasonable efforts to hire/train
Canadians Work is likely to affect any labour dispute
Prior changes (in last 3 years)
◦ Substantially the same◦ Genuineness◦ 4 year limit
◦ Recruitment requirements
4 weeks from 2
2 sources plus job bank
ongoing◦ Filing Fee $1000 per position
June 2014
◦ Now: Labour Market Immigration Assessment◦ Test redefined from
NOC based ‘High Skill’ to
Wage based ‘High Wage’
◦ 1 year maximum◦ Transition Plan
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Failure to Comply◦ 25% Audit Expectation◦ Non-compliance can lead to
2 Year Ban on Hiring Foreign Workers
Publication on ‘Black List’
Inability to Renew LIMAs and Work Permits
Therefore:◦ Maintain Records: 6 Years, including:
Wages
Immigration Documentation
Other
◦ Proactive Compliance Systems
√ Require LMIA and Work Permit Requirements Set Out in IRPR s. 203
Require Work Permit; LMIA Exempt◦ Intra-Company Transferees
◦ NAFTA, GATS, CCFTA, CPFTA, CCoFTA Professionals
◦ Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other
Work Permit Exempt◦ Business Visitors
◦ Other Exemptions
Intra-Company Transfer
◦ Canadian company affiliated with foreign company
◦ Employee works in foreign affiliate for 1 Year in Last 3(except 6 months for Peru)
◦ Capacity: Executive/Senior Manager/Specialized Knowledge
◦ Note: NAFTA/GATS/FTAs/IRPR “Convergence”
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Coming from foreign company to ‘Affiliated’ Canadian company
◦ ‘Affiliated’ can be
Parent/subsidiary
Sister corporations
◦ Look at control (could be < 50%)
One in last three years with overseas company
◦ Must be presently working there
◦ Employment – past and future – can be ‘contract’ but needs to be dedicated arrangement
Specialized Knowledge or Senior Managerial/Directorial Level
◦ Specialized Knowledge
Advanced Experience / Proprietary Knowledge
◦ Managerial Experience
Typically managing people, sometimes functional
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Other considerations
◦ Caps
5 years for specialized knowledge
7 years for managerial positions
◦ Renewable in 2 year increments
◦ Startup considerations
1 year
Substantiation of doing business in Canada
Effective June 2014
◦ Changes to assessment for Specialized Knowledge Cases
Considerations as to meaning of ‘Specialized Knowledge’
Salary Issues
Control Issues
◦ Specialized Knowledge:
“Knowledge at an Advanced Level of Expertise”
PLUS
“Proprietary Knowledge of the Company’s Product, Service, Research, Equipment, techniques or Management”
(Test is ‘high degree’ of each of these, on a balance of probabilities)
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Advanced Level of Expertise
Specialized knowledge gained through significant and recent experience with the organization and used by the individual to contribute significantly to the employer’s productivity.
Significant experience – no specific guideline, just that the longer the experience, the more likely the experience is specialized
Recent – within the last five years
Proprietary Knowledge
Company-specific expertise of a company's product or service where specifications that would allow other companies to duplicate the product or service would not have been divulged.
Advanced Proprietary Knowledge:
Uncommon knowledge of company’s products/services in international markets, or
Advanced level of expertise or knowledge in company’s processes and procedures such as its production, research, equipment, and management.
Other Factors:
Wage
Minimum of Prevailing Wage
Do not include non-cash per diems (only directly paid monetary payments can be included)
Control
Worker to be clearly employed by, and under direct/continuous supervision of host company
Typically, no training should be required
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Exceptions/Breathing Room:
Minimum Wage Guideline does NOT apply to ICTs under any Free Trade Agreement
HOWEVER, it can still be a factor to be considered
Note: GATS is NOT a Free Trade Agreement for our purposes
Where agreement calls for different definitions, respect those other definitions. e.g. Peru Free Trade Agreements – 6 months’ experience
New Realities/Implications:
Difficulty ‘Parachuting’ Control issue means that sending someone for a few days may be difficult
Issues re level of ‘Proprietariness’ How special does it have to be?
NOC classifications Reclassification could deny ICT status even if all other tests met
Need for Alternatives/Creativity
Senior Managerial/Executive Intra-Company Transfers:
Impact?
Nothing Definitive
Wages?
Control?
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Professionals NAFTA; e.g. Management Consultant GATS; industry specific, 90 day maximumOther
Reciprocal Benefit
Significant Benefit
Further Possibilities
Designated list
Each has specific requirements
◦ e.g. Bachelor’s Degree, membership in a professional association, etc.
◦ Review NOC for considerations of profession
Do not need Canadian licence for profession
Need pre-arranged employment with Canadian company
◦ ‘employment’ is often a contract for services
◦ No self-employment
List of approximately 60 occupations
A random sampling includes:
◦ Agriculturist
◦ Dentist
◦ Seminary Teacher
◦ Hotel Manager
◦ Forester
◦ Librarian
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Engineer
◦ Degree or Licence
◦ Need not be licenced in Canada
(Note distinction for ‘letter of no objection’ in other categories)
Computer Systems Analyst
◦ Degree or Diploma/Certificate – Now field-related
◦ Must be doing ‘systems analysis’ – beyond basic programming
Management Consultant
◦ Degree in related field, or Five years’ experience
◦ Improving high level issues, not production
◦ Caution: open to abuse by clients, and skepticism by officers.
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Scientific Technician
◦ Includes the fields of astronomy, biology, engineering, geology, and others
◦ Ability to solve practical problems
◦ Person being supported must qualify in their own right
◦ Questions about ‘construction trades’, e.g. electricians, aircraft technicians, etc.
GATS◦ Engineers, Computer Specialists
◦ 3 months
CCFTA◦ Engineer, Computer Systems Analyst
CCoFTA◦ Negative list – no Pharmacists, Performing Artists, etc.
◦ CPFTA◦ Negative list – no Pharmacists, Performing Artists, etc.
CSKFTA◦ Contract Service Supplier
◦ Independent Professional
European Trade Agreement?
Theory: Neutral Labour Market Impact
Some formal programs, e.g.:◦ International Experience Class
◦ Working Holidays
Can be used by individual company◦ Need not be one for one
◦ Need not be direct (i.e. Canada sends to Germany, Ireland sends to Canada)
◦ Evidence:
Rosters of Transfers In/Out; Global Mobility Policy
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Institutional Reciprocity
Bilateral Agreements with Various Countries
Various Programs, each with unique requirements
Restrictions on:◦ Age
◦ Renewal
◦ Recently graduated (within the last year)
Must apply at visa post
Trader:
◦ Businessperson carrying on substantial trade between US or Mexico, and Canada
Investor:
◦ Businessperson establishing or advising an operation based on an investment in Canada, where businessperson has committed or will commit a substantial amount of capital.
Amount of capital relative to amount of investment
Intra-company alternative
Significant Benefit
◦ ‘Last Resort’
◦ Allows for Creative Solutions;e.g. consider impact, time frame, etc.
Emergency Repair
Provincial Programs◦ Alberta Construction Workers
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√ Require LMIA and Work Permit Requirements Set Out in IRPR s. 203
√ Require Work Permit; LMIA Exempt Intra-Company Transferees
NAFTA, GATS, CCFTA, CPFTA, CCoFTA Professionals
Other – e.g. Reciprocal Benefit, Significant Benefit, IEC, Other
Work Permit Exempt◦ Business Visitors
◦ Other Exemptions
IRPR ss. 186/187
Examples:
◦ Clergy
◦ Foreign Journalists
◦ Certain Entertainers
◦ Emergency Personnel
Originally in FTA/NAFTA, now in broader IRPR
IRPR s. 186(a)/187
International Business activity/not entering labour market
Examples:
◦ Buying Canadian products or receiving training re goods
◦ Intra-company training
◦ Selling not to the general public
◦ meetings
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Remuneration must remain abroad
Principal place of business must remain abroad
Benefit enures to foreign company
Consider aspects of ‘work’, ‘international in nature’, etc.
(a) foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services;
(b) foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of goods or services that results from the training is incidental; and
(c) foreign nationals representing a foreign business or government for the purpose of selling goods for that business or government, if the foreign national is not engaged in making sales to the general public in Canada.
Port of entry vs. Visa Post
◦ Visa-Requiring Nationals with US Green Cards can use POE
◦ Traders/investors (even American) must use visa post
◦ Trade off: faster at port of entry, more thorough at Visa Post
◦ Visa Posts use ‘Visa Application Centres’ - issues
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Pre-screening
◦ For Port of Entry opinion on non-LMIA (with no peripheral issues, e.g. criminality)
◦ Send application to Immigration Mobility Worker Unit(IMWU – formerly TFWU)
Toronto for Ontario and west
Montreal for Quebec and east
Ensure proper forms depending on IMWU
Apply based on where person will be working
IMWU provides opinion
Not binding on POE, but unless there is some major issue on entry, should act as good insurance of validity of non-LMIA cases
Work permit applications are legal procedures
Legal procedures require evidence and legal argument
Besides issues of rules of nature of evidence (e.g. when document should be certified), evidence should be considered to substantiate legal issues in question
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Therefore, e.g.:
◦ Intra-company applications must establish
Affiliation of companies
Applicant’s history with company
Applicant’s specialized knowledge or managerial experience
Control issues
Anything else that may be considered in such an application
◦ Professional applications must establish
Professional qualifications
Citizenship
Pre-arranged ‘employment’ with Canadian entity
Anything else that may be considered in such applications
Evidence: Onus on Applicant
Documentation could include:
Resume
Reference letters
Company support letters
Job description
(showing, e.g., training acquired, years of experience, degrees in the field)
Company support letters
Publications/Awards
Description of Work to be Performed in Canada
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Types of documentation to support:
◦ Use common sense
◦ Documentation to support issues in that case, e.g.
Pay stubs show work history
Corporate shares could show affiliation
No limit per se common sense
In addition to the above, of course, relevant forms should be provided depending on situation, e.g.:
◦ IMWU form for Toronto IMWU
◦ Application for work permit at visa post
Submissions are what tie facts/evidence/legal issues together
The onus is on you to ensure officer has what he/she needs to make a decision, and to persuade him/her that the applicant qualifies under the relevant provision
Work Permit vs. Visa◦ Notations on work permits◦ Inland (Ottawa) visa processing
Dependents (Work Permits)◦ Spouses anywhere (based on NOC: 0, A, or B)◦ [formerly children in Alberta, Ontario, British Columbia]
Dual Intent
Others ◦ non-immigration issues as well: tax, employment law, etc.
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Serious Criminality Applies to:
◦ Permanent Residents
◦ Foreign Nationals
“Ordinary” Criminality Applies to:
◦ Foreign Nationals Only
Convicted in Canada of Offence with Maximum Term of At Least 10 Years Imprisonment OR Where 6 Months Actually Imposed
Convicted Outside Canada of Offence which, in Canada Could Yield Imprisonment of At Least 10 Years
Committed Offence Outside Canada which, in Canada Could Yield Imprisonment of At Least 10 Years
Convicted in Canada of Offence Punishable by Indictment OR Any 2 Separate Offences
Convicted Outside Canada of Offence which, in Canada Punishable by Indictment OR Any 2 Separate Offences
Committed Offence Outside Canada which, in Canada is Indictable
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Misrepresentation:
◦ Directly/indirectly Misrepresenting or Withholding Material Facts
◦ 2 Year Bar
Previous Unauthorized Work
◦ 6 Month Bar for New Work Permit
Employers’ Due Diligence Requirement:
◦ Employing a Foreign National Without Authorization
2 Year Imprisonment/$50,000 Fine
Aiding/Abetting/Counselling
◦ 5 Year Imprisonment/$100,000 Fine
Citizenship and Immigration Canada◦ www.cic.gc.ca
NOC◦ http://www5hrsdc.gc.ca/NOC/english/2011/welcome.aspx
Wages◦ www.jobbank.gc.ca
ESDC Foreign Worker Program◦ http://www.esdc.gc.ca/eng/jobs/foreign_workers/index.shtml
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Benjamin A. Kranc
425 University AvenueSuite 200Toronto, Ontario M5G 1T6Tel: (416) 977-7500E-mail: [email protected]: www.kranclaw.com
A Passport to Effective Foreign Worker Recruitment
____________________________Understanding Canadian Immigration