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Prepared By Rishma N. Shariff
The content of this article is intended to be informational only. We
caution you against using or relying upon any information contained
in this article without first seeking legal advice regarding your
particular matter. All matters arising from the use of our website,
including this article, shall be governed by Alberta law and shall
be within the exclusive jurisdiction of the courts of Alberta
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| (Updated as of January
2005) |
Overview
A foreign worker is considered to be a temporary resident in
accordance with the Immigration and Refugee Protection Act (“IRPA”).
Generally, anyone wishing to work in Canada must apply for a work
permit. Every year over 90,000 foreign workers enter Canada in order
to work temporarily with Canadian employers wishing to address skill
shortages in Canada. Citizenship and Immigration Canada (CIC) and
Human Resources and Skills Development Canada (HRSDC) ensure that
these workers will support economic growth in Canada and create more
opportunities for all Canadian job seekers.
In many cases, working in Canada under a valid work permit can
provide foreign workers with an opportunity to apply for immigration
to Canada in the future.
Jobs Exempt from Work Permit Requirement
In special situations, foreign nationals may work temporarily in
Canada without holding a work permit. In order to do so, individuals
must fall under one of the following categories and must still meet
all other admissibility requirements:
Business Visitors
Foreign Representatives
Family Members of Foreign Representatives
Military Personnel
Foreign Government Officers
On-Campus Employment
Performing Artists
Athletes and Coaches
News Reporters
Public Speakers
Convention Organizers
Clergy
Judges and Referees
Examiners and Evaluators
Expert Witnesses or Investigators
Health Care Students
Civil Aviation Inspector
Accident or Incident Inspector
Crew Members
Emergency Service Providers
In all other cases, a work permit is a necessity.
Applying for a work permit
IRPA and its Regulations require foreign nationals to apply for a
work permit before attempting to enter Canada. In most cases, prior
to applying for a work permit, a foreign national must obtain:
1. A Genuine job offer from a Canadian employer;
2. A Labour Market Opinion or “confirmation” from HRSDC.
A. Obtaining a Labour Market Opinion
The labour market opinion must be applied for by the prospective
Canadian employer. When deciding whether to grant a labour market
opinion HRSDC will examine several factors. A positive or neutral
‘confirmation’ or labour market opinion is necessary for a foreign
worker to be issued a work permit. Some of the factors considered
include whether a Canadian or permanent resident could fill the job;
whether the hiring of a foreign national will help create
opportunities or benefit for Canadian job seekers; and whether
working conditions and wages offered are in line with what a
Canadian would expect.
Once the foreign national obtains a labour market opinion, he/she
may apply for a work permit. Depending on the country of origin, a
work permit may be applied for at the Visa Office in charge of that
country or at a port of entry when entering Canada.
When applying for a work permit, the foreign national must satisfy
the Visa Officer that all admissibility requirements are met. That
is, medical and security clearances must be received. In addition,
the foreign national must satisfy the Visa Officer that he is
entering Canada for a temporary purpose and will leave Canada at the
expiry of his work permit. The Visa Officer retains discretion to
refuse a work permit, even if a labour market opinion has been
given.
B. Exemptions from HRSDC Confirmation
In some cases, a work permit may be granted without the need to
obtain a labour market opinion. These exemptions apply in limited
cases.
International Agreements
Under Canada’s immigration law, the following do not need to apply
for HRSDC confirmation because they are either nationals of a
country that is party to international agreements between Canada or
one or more provinces:
Professionals, traders, investors, and intracompany transferees
under the North American Free Trade Agreement ("NAFTA");
Professionals under the General Agreement on Trade in Services
("GATS") [intracompany transferees under GATS are admitted under s.
205 of the IRPR, which is discussed below];
Airline personnel entering pursuant to bilateral air transport
agreements;
Foreign workers entering under the Canada-Chile Free Trade
Agreement; and
Temporary workers entering Canada to work pursuant to a film
co-production agreement.
Where a province has entered into a provincial nominee agreement, a
person who has been nominated by the province for permanent
residence and has a job offer from an employer based in that
province, may be issued a work permit without a job confirmation
from HRSDC. The work permit application must be accompanied by a
letter from the provincial government confirming that the person has
been nominated and that the nominated individual is urgently
required by the provincial-based employer who has made the job
offer.
Canadian Interests
An exemption from HRSDC confirmation may also exist for an
individual who can prove that it would be in Canada’s interests. In
order to do so, the foreign national must intend to perform work
that:
Would create or maintain significant social, cultural or economic
benefits or opportunities for Canadian citizens or permanent
residents;
Would create or maintain reciprocal employment of Canadian citizens
or permanent residents of Canada in other countries;
Is designated by the Minister as being work that can be performed by
a foreign national on the basis of the following criteria, namely,
The work is related to a research, educational or training program,
or
Limited access to the Canadian labour market is necessary for
reasons of public policy relating to the competitiveness of Canada's
academic institutions or economy; or
Is of a religious or charitable nature.
Significant Benefit
General Cases
There may be cases where a confirmation is not available and a
specific exemption does not apply. At that point, a visa officer may
determine that a work permit may be issued because it would be of
signgicant benefit to Canada. In such cases the Officer will look at
the social/cultural benefit of admitting persons of international
renown, examining whether a person's presence in Canada is crucial
to a high-profile event, and whether circumstances have created
urgency to the person's entry. Where entry into the labour market is
contemplated, all practical efforts to obtain an HRSDC confirmation
should be made before issuing a work permit until this general
exemption. Clearly, this general exemption for significant benefit
will not be available in most cases.
Entrepreneurs and Self-Employed Candidates Seeking to Operate a
Business
If a permanent resident applicant has met the definition of
entrepreneur or self-employed and has already been approved under
one of these permanent residence categories, he or she may be issued
a work permit if there are compelling and urgent reasons to admit
the person before permanent resident processing is completed. They
must demonstrate that their admission to begin establishing or
operating their business would generate significant economic,
social, or cultural benefits or opportunities for Canadian citizens
or permanent residents.
Special considerations may also apply when the applicant is being
considered by a provincial government for nomination as a permanent
resident. Many provinces have indicated a growing interest in having
potential provincial nominees be issued work permits to undertake
entrepreneurial activities prior to their actual nomination. A
letter from the provincial government confirming that there would be
a benefit to the province (and therefore Canada) by permitting the
foreign national to carry out business activity is sufficient to
establish significant benefit. Such a work permit would be issued
for two years and would not be renewable. It is presumed that within
that period the provincial government will decide whether to
nominate the individual and the foreign national's subsequent
renewal application could be supported by the fact of the
nomination.
Intracompany Transferees
Foreign nationals may apply as intracompany transferees even though
their country of nationality is not a party to NAFTA or the
Canada-Chile Free Trade Agreement. This exemption is open to
executives, managers and specialized knowledge workers. In order to
qualify, the foreign national must:
Be coming to Canada to work for a parent/subsidiary/affiliate/branch
of an international company (i.e. the organization either is or will
be doing business in Canada and the foreign country);
Have been continuously employed by the international company outside
of Canada for at least one year within the last three years;
Have been employed abroad during the above period in an executive,
managerial, or specialized knowledge capacity;
Be seeking admission to Canada to work for a
parent/subsidiary/affiliate/branch of the same international company
in a similar position as the position abroad; and
Intend to spend at least 25% of their time in Canada.
Emergency Repair Personnel
Emergency repair personnel are persons whose admission is required
in Canada to carry out emergency repairs to industrial equipment in
order to prevent disruption of employment.
They should be in possession of a letter, telex, or fax indicating
that the nature of their work
is an emergency.
Other categories of exemptions:
Other categories of exemptions include:
Foreign nationals falling under a Reciprocal Employment program;
Work Related to Research, Educational, or Training Program
Foreign Students, Excluding Medical Interns and Externs and Resident
Physicians
Spouses or Common-Law Partners of Skilled Workers
Spouses or Common Law Partners of Foreign Students
Post-Graduate Employment
Post-Doctoral Fellows
Off-Campus Employment (Pilot Project)
Charitable or Religious Work
If you would like assistance with making an application for a work
permit, please feel free to contact us by email at::
immlaw@caronpartners.com |
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