Working Temporarily in Canada An overview of the Temporary Foreign Worker Program and the International Mobility Program (February 2016)

Objective To provide information on programs allowing foreign nationals to work temporarily in Canada, including: Temporary Foreign Worker Program (TFWP) reform and recent changes to the International Mobility Program (IMP); Immigration processes and roles of three government departments which support the delivery of the TFWP/IMP.

Working in Canada Three ways for a foreign national to be authorized to work temporarily in Canada … needs both a Work Permit and a Labour Market Impact Assessment (LMIA) (Temporary Foreign Worker Program); or, 2. … needs a Work Permit, but not an LMIA (International Mobility Program); or, 3. … needs neither a Work Permit nor an LMIA (International Mobility Program).

Temporary Foreign Worker Program All work permits requiring an LMIA are part of the Temporary Foreign Worker Program (TFWP). Employers apply to Employment and Social Development Canada (ESDC)/Service Canada for an LMIA (processing fee: $1,000). LMIA applications are assessed based on the following factors: Genuineness of the job offer; Labour market factors; and Employer Compliance Reviews (returning employers only). If the hiring of the TFW is expected to have a positive impact on the Canadian labour market, and the employer has complied with program requirements, ESDC will issue a positive LMIA. A foreign national may apply for a work permit once his prospective Canadian employer has obtained a positive LMIA. Immigration, Refugees and Citizenship Canada (IRCC) (and the Canada Border Services Agency (CBSA) on IRCC’s behalf at the border) assesses work permit applications and issues work permits. The more traditional route that everyone thinks of is for the ER to obtain a LMIA from ESDC to assess the likely impact that the foreign workers would have on the Canadian labour market. LMIA applications are assessed based on: Genuineness of a job offer: Actively engaged – is the offer coming from an employer that legally exists and operates a business related to the job offer being made? Reasonable employment need – does the job offer match the general type of work of the business or sector Ability to fulfill – employers need to demonstrate that they are able to fulfill the terms of employment Past compliance with P/T employment standards – employers must by compliant with federal/provincial legislation where the TFW will work; and must ensure that their recruiters have been and continue to be compliant with legislation governing the recruitment of TFWs. There are 7 labour market factors assessed Will this employment result in job creation for Canadians? Will this employment result in the transfer of knowledge and/or skills to Canadians? Will this employment result in the filling of a labour shortage? Are the wages consistent with the prevailing wage offered to Canadians for the same occupation in the region requested? Has the employer made reasonable efforts to hire Canadians? Will this employment adversely affect the settlement of any labour dispute in progress or the employment of anyone involved in a dispute? Whether the employer has fulfilled, or has made reasonable efforts to fulfill, any commitments made as a condition of receiving a previous LMIA In addition, returning employers are assessed against the original job offer to determine whether previously employed TFWs in the past 6 years were provided substantially the same - wages - working conditions and Same occupation 10 day processing is available for the highest-demand occupations (skilled trades), highest-paid (top 10%) occupations or short-duration work periods (120 days or less). When a positive LMIA is issued by ESDC, the ER provides the FN with the LMIA confirmation letter so that it can be submitted by the FN to CIC (or CBSA for TRV-exempt individuals) with their WP application. Officers consider LMIA (as required) when deciding whether to issue a WP authorizing the FN to work in CDA. TRV-exempt FNs who are applying for a WP at the POE will present the LMIA confirmation letter along with their other supporting docs.

International Mobility Program The International Mobility Program (IMP) comprises all work permits that are exempt from the LMIA process. LMIA exemptions apply to qualifying foreign nationals on the implied basis that their work provides competitive advantages to Canada and/or reciprocal benefits abroad for Canadians. Examples: International agreements, including free trade agreements (e.g., NAFTA); Federal/Provincial/Territorial Agreements; Reciprocal employment. (LMIA exemptions under sections R204 to R208 of IRPR) $230 compliance fee will allow for a compliance system to be put in place to monitor employers under the IMP. The requirement for employers to provide job offer information directly to CIC when hiring foreign nationals under IMP standardizes application process upfront. Information provided by employers will be used to verify compliance with regulations if employer is inspected. $100 fee on open work permit applicants will allow CIC to: Undertake research on labour market impact of open work permit holders in Canada; Inform Canadians of opportunities to work overseas under reciprocal open work permit programs ; and Conduct outreach activities to promote transition to permanent residence to open work permit holders and their employers.

IMP: New Employer Compliance Fee As of February 21, 2015, employers must pay a $230 compliance fee when hiring foreign nationals exempt from the LMIA requirement under the IMP. The fee is payable by employers for each LMIA-exempt employer-specific work permit application. The fee is payable when the offer of employment is submitted to IRCC. Employers are exempted from paying the $230 fee only if foreign nationals are exempted from payment of $155 work permit fee (e.g., officers from foreign governments, work related to research programs or training programs in designated learning institutions, religious or charitable organizations when working without remuneration, etc.). However, employers of International Experience Canada participants who hold employer-specific work permits will be required to pay the fee. Regulations also require employers to provide job offer and other relevant information electronically directly to CIC including: Name, address, contact information Business number (if applicable) Information supporting use of LMIA-exemption Offer of employment using the form made available by CIC $230 fee and job offer information must be submitted by the employer before a foreign national makes an application for a work permit. If employers do not meet these requirements when hiring foreign nationals under employer-specific LMIA-exemptions, officers will refuse the work permit application.

IMP: Offer of Employment Information As of February 21, 2015, employers are also required to provide offer of employment and other relevant information electronically directly to IRCC via an online Employer Portal. This information facilitates the assessment of the work permit application, and forms the basis of future assessments of compliance when employers are inspected. The $230 fee and employment information must be submitted by the employer prior to a foreign national applying for an employer-specific IMP work permit. Otherwise, officers may refuse the work permit application. The $230 fee may be reimbursed if the foreign national’s application for a work permit is subsequently refused, or if the employer withdraws the offer of employment before a work permit is issued. If employers do not meet these requirements when hiring foreign nationals under employer-specific LMIA-exemptions, officers will refuse the work permit application.

Employer Compliance and Conditions Both TFWP and IMP employers have to respect certain conditions when employing foreign nationals. Specifically, IMP employers must: Remain actively engaged in the business that submitted the Offer of Employment as long as the temporary worker is employed; Comply with all federal/provincial/territorial employment laws, including laws about recruiting workers; Provide the worker with a job that meets the details set out in the offer of employment, including: type of job and field of work; wages; working conditions; Make reasonable efforts to provide a workplace free of abuse (physical, sexual, psychological and financial).

Work Permit exemptions Foreign nationals performing certain roles are exempt from the Work Permit requirement and therefore their employers in Canada are also exempt from the LMIA process. Example: Business visitors: foreign nationals who seek to engage in international business activities in Canada without directly entering the Canadian labour market. Crew members: foreign nationals working on any means of transportation that is foreign-owned and not registered in Canada, which is engaged primarily in international transportation. The third route is No LMIA and No WP. Business visitors do not require a work permit to enter to Canada as their activities within Canada are not competing with domestic labour. Like with the overall visitor category, entry is generally granted for 90 days. This is incorrect Access to Canada as a Business Visitor is granted under R186(a) of the Immigration and Refugee Protection Regulations (IRPR). This provision is also legally bound in the General Agreement on Trade in Services (GATS) and Canada’s international free trade agreements. Amongst international partners, the business visitor category is fairly common category of entry – e.g., the B-1 visa in the United States.

International Mobility Worker Units (IMWUs) If employers are hiring foreign nationals from visa-exempt countries and are unsure about whether an LMIA or work permit exemption applies or not, employers may request an assessment (opinion request) from the IMWU: Toronto IMWU serving: ON, BC, AB, SK, MB, YK, NWT, and Nunavut (CIC-IMWU-UMIT-Toronto@cic.gc.ca) Montreal IMWU serving: QC, NS, PEI, NB, and NFLD (CIC-UMIT-IMWU-Montreal@cic.gc.ca) The IMWU helps employers determine if the foreign worker they want to hire is exempt from the LMIA process or from requiring a work permit. If you believe that the positions your companies will offer to foreign nationals may be LMIA-exempt or work permit exempt, you can request an opinion from the IMWUs. Please keep in mind that opinions for LMIA-exemptions can only be issued to foreign workers from a visa-exempt country, who are outside Canada; and that there is a 14-day service standard for LMIA-exemption opinions to be rendered. The opinions issued by the IMWU are valued by the CBSA as key documents to support their decision making. BSOs render their decision on a case-by-case assessment of the information presented at the time of examination, following CIC’s policy and operational guidelines.

Arriving in Canada CBSA provides integrated border services which facilitate the free flow of people and goods, including food, plants and animals, across the Canadian border. CBSA’s responsibilities include assessing whether people and goods can lawfully enter Canada and taking enforcement actions when required. Requests to enter and work in Canada are considered on a case-by-case basis depending on the specific facts and documentation presented by the individual at the time of arrival. CBSA officers at Ports of Entry (POEs) make the final decision on who enters Canada. All foreign nationals seeking entry to Canada must meet legislative and regulatory requirements. Most foreign nationals must apply for their work permits before seeking entry into Canada (i.e., at a Canadian visa office abroad), unless authorized by law to apply directly at a port of entry (e.g., visa-exempt nationals applying for a work permit under the IMP). CBSA to speak

Work Permit Processing at Ports of Entry Foreign nationals seeking to enter Canada must appear for an examination at a POE, provide any documents that the officer requires, and answer truthfully any questions. The examination by the Border Service Officer (BSO) will include the foreign national’s documentation and any goods they are bringing to Canada. The onus is on the foreign national to satisfy the BSO that he/she is admissible to Canada and meets the requirements of the Immigration and Refugee Protection Act and Regulations.

Port of Entry Processing (cont.) When appearing at the POE, foreign nationals seeking to work in Canada need to provide the following: Proof of identification and citizenship (e.g., passport); The ID number the employer received when they submitted the offer of employment through the Employer Portal (for IMP employers); For work permits processed abroad, the letter of introduction from IRCC; Other documentation to support the request for entry, relevant to the category for entry (e.g., proof of education, copy of resume, copy of professional certificates/licences, copy of warranty/service agreement, purchase orders); and Payment of the $155 work permit processing fee.

CETA Temporary Entry TE Chapter facilitates entry for certain categories: Categories reflected in Canada’s domestic regime (e.g., business visitors, intra-company transferees) Additional LMIA-exempt categories Select high-skilled workers (e.g.,engineers, technologists) No coverage of low-skilled (i.e., NOC C & D) Cases: Dredging – work permit/LMIA required unless occupation specifically covered (e.g., engineering services) Continuous feeder services – work permit/LMIA required Empty containers – work permit exempt under specific conditions

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