1. Navigating Immigration for Foreign Physicians
Options for Temporary Work Permits and Permanent Residence
Presented by:
Ravi Jain|

2. Agenda Temporary Work Permits Open Work Permits eTAs
The Temporary Foreign Worker Program
Labour Market Impact Assessments and Compliance
Permanent Residence
Family Class Sponsorships
Express Entry: Canada Experience Class and Federal Skilled Worker
Ontario’s Provincial Nominee Program
Questions
Navigating Immigration for Foreign Physicians

3. Open Work Permits

4. Open Work Permits – Great LMIA Alternatives
Spouses and common-law partners of persons who hold a Temporary Work Permit and are employed in Canada in a skilled occupation
Spouses and common-law partners of persons who hold a Study Permit, and are studying full-time at a post-secondary institution
Post-Graduate Work Permits – persons who graduate from a post-secondary program of at least eight months’ duration, are eligible for an Open Work Permit equivalent to the length of the study program to a maximum of three years
Pilot program for spouses who have applied in Canada to be sponsored by a spouse or common-law partner
Navigating Immigration for Foreign Physicians

5. Open Work Permits – Other Requirements
Open Work Permits do not confer ability to work in health service related occupations without an immigration medical examination
Medical exam results are valid for 12 months
Subsequent medical exams may be required for renewals
Foreign nationals from non-visa exempt countries will still require a Temporary Resident Visa (TRV) to enter Canada
Navigating Immigration for Foreign Physicians

6. Electronic Travel Authorization (eTA)
Pre-screening of all in-bound visa-exempt travelers to Canada arriving by air
U.S. citizens are exempt; U.S. Green card holders are not
Applications opened online on August 1, 2015
Program became mandatory in November of 2016
Valid for up to 5 years, or until passport expiry, whichever is sooner
Catching past criminality more often

8. Program Divided Into Two Streams:
High Wage
At-or-above provincial median wage (as determined by ESDC)
LMIA required
Fee of $1000
Transition plan required
10 day processing available for some occupation streams (highest demand, highest paid, or short duration)
Low Wage
Below median wage (as determined by ESDC)
LMIA required
Fee of $1000
Phased in cap on % of TFW at any worksite
No LMIAs for Food Service, Accommodation and Retail Sectors in regions of unemployment at-or-above 6%
LMIA valid for 1 year

9. The Labour Market Impact Assessment (LMIA)
Procedural hurdle for the hiring of Temporary Foreign Workers (TFWs)
Must provide information on:
How many Canadians applied for the job?
How many were interviewed?
Why were they not hired?
Employers hiring TFWs must also attest that:
They are aware Canadians in the position covered by LMIA cannot be laid off as a result of hiring the TFW
They are aware Canadians cannot have their hours reduced as a result of hiring the TFW
High Wage LMIAs must now include a transition plan

10. The Transition Plan For High-Wage TFWs
Transition plan is in addition to recruiting and advertising requirements for the LMIA to ensure Canadians and Permanent Residents are hired first
Employers must have a strategy to train, share skills with, and/or transition to a Canadian workforce through investment in training or hiring apprentices or commit to assisting the TFW transition to becoming a permanent resident
Employers will be assessed on the implementation of their plan during audits and renewals
Employers failing to implement their plan may be denied new LMIAs

11. The Transition Plan –Activities
Activities may include:
Offering increased wages, flex hours, or other benefits
Campus recruitment
Job Fairs
Recruiting from underrepresented groups
Apprenticeship, Co-ops, and other training
Continued recruitment of the same role for periods of days at a time over the duration of the LMIA

12. Considerations
Employers are fully liable for all third party recruiter activities, including representations made to ESDC
LMIAs in certain provinces may require licenses or registration
Hiring from Visa Exempt countries may reduce processing times as these individuals do not require a Temporary Resident Visa to enter Canada

13. Compliance and Enforcement

14. Employer Inspections
All employers hiring foreign workers on LMIAs are subject to employer inspections
There are no appeals, and rendered determinations are final
Review standards is “substantially the same” (STS)
Terms and conditions of the job should be STS as those laid out in the LMIA
ESDC will accept limited justifications for divergence from LMIA

15. Inspections 25% of all employers of TFWs will be inspected each year
Authority to conduct onsite and warrantless inspections
Can go back 6 years starting on the first day of employment
Can interview foreign workers and Canadian employees
May demand production of any document necessary to demonstrate compliance
Banks and Payroll companies can be compelled to provide records to verify information provided by employers
Tip-line being set up for people to report suspected abuse of program

16. Consequences Revocation of LMIAs if rule-breaking is found
Published on an ineligible employers list online
List will include both employers who have been suspended and employers found to be in violation of rules, and will include the consequences have been imposed
Fines, and criminal charges and penalties for misrepresentations to ESDC
Information sharing by ESDC may trigger employment standards, occupational health and safety, and other investigations

17. Administrative Monetary Penalties (AMPs)
AMPs are a commonly used “compliance” tool
Examples include: Canadian Anti-Spam Law; Ontario Securities Act; Provincial environmental legislation
AMPs are often imposed without the benefit of a proceeding by a regulatory authority enabled by statute
Penalties may be challenged in Federal Court

18. AMPs for Immigration Compliance
AMPs came into force December 1, 2015
Up to $100,000 per violation / $1M cumulative cap per annum
Determined according to a points system that considers:
Employer size
History of compliance
Type of violation, including severity
Whether economic benefit was derived from violation
If wrongdoing is identified prior to the start of any enforcement or compliance action, a voluntary disclosure may be made in order to mitigate against some, or all, of any subsequent penalty

19. LMIAs: Should Physicians be Exempt?
Program integrity concerns are centered mostly on low-wage service sectors
Fees: small recruiters or practices with limited budgets may find application fee of $1000 prohibitive
Lengthy processing times – 10 business day standard for high wage occupations not being met (we’re seeing 3 wks – 2 months) then WP is days online or 112 days by paper
Navigating Immigration for Foreign Physicians

20. Family Class Sponsorships
Spouses and common law partners can be sponsored for permanent residence
Sponsors who are permanent residents must be resident in Canada at the time the application is filed until a decision is reached.
Sponsors who are citizens must have demonstrated intent to reside in Canada when his or her spouse or common law partner becomes a permanent resident
In-Canada versus overseas applications
Navigating Immigration for Foreign Physicians

22. Express Entry
Electronic Immigration Management System launched in January, 2015
Replaces “first come, first served” process with a pool of applicants who will be ranked against each other using a comprehensive point system
1200 points maximum: 500 for human capital factors/100 for skill transferability/ for an LMIA-based or LMIA-exempt based Work Permit (doctors will get 50)
Mandatory for all applications for Permanent Residence under Canadian Experience Class, Federal Skilled Worker, Federal Skilled Trades, and optional for Provincial Nominee Program
Promises a processing time of 6-months for selected candidates

23. Federal Skilled Worker Program
Minimum of one year of full-time work experience in intended occupation in the last 10 years, and language test scores from IELTS/CELPIP/TEF equivalent to Canadian Language Benchmark (CLB) of 7.
Must meet minimum of 67 points based on six selection factors: age, work experience, education, language, permanent offer of employment supported by LMIA, and adaptability factors.
Must have a post-secondary credential equivalent to a Canadian credential confirmed by an Educational Credential Assessment (ECA) from an agency approved by Citizenship and Immigration Canada
Must plan to live outside of the province of Quebec
Navigating Immigration for Foreign Physicians

24. Canadian Experience Class
Must have at least one year of full-time work experience in Canada in a skilled occupation
Self-employment: private clinic/partnership paying T5 income -> likely no-go but may be ok if clinic has control/management (directs doc); doc doesn’t take financial risk and has no ownership. T4 income best (discretion)
Minimum language test scores from IELTS/CELPIP/TEF equivalent to Canadian Language Benchmark (CLB) of 7 for persons in highly skilled (NOC A) positions such as physicians
Must plan to live outside of the province of Quebec
Navigating Immigration for Foreign Physicians

25. Arranged Employment Points
CAN’T get an LMIA for PR purposes if fee for service (FFS) -> on hold as Ottawa clarifies. Concern is no ER-EE relationship given hospitals/clinics/health authorities don’t put docs on payroll, give benefits and don’t guarantee salary or hours
CAN get an LIMA for WP though no ER-EE relationship b/c: no LMIA-exempt WP options; high labour market need; not vulnerable to exploitative employment situations; heavily regulated by health authorities/provincial gov’ts who provide assurance re wages and method of compensation

26. … continued
LMIA for WP: FFS accepted as prevailing wage (occupational norm) so no need to list a wage on form and can skip job bank (can’t use due to their term of use policy) and no need to list wage on job bank alternatives such as Workopolis
Once LMIA for WP secured, be sure to list employment as self-employed for EE, thus being selected under FSW rather than CEC
Ensure FSW points of 67 met, ideally without relying on 15 AE points given IRCC may think bypassing hold on LMIA for PR purposes
FSW requires settlement funds (normally not an issue for docs)

27. Ontario Provincial Nominee Program
Employer-driven program designed to allow Ontario to meet local labour market needs -> gets you 600 EE points!
Employers must meet minimum requirements: Gross annual revenue of $1 million in GTA, $500,000 outside GTA; and be actively in business for at least 3 years; have at least 5 full time Canadian employees if inside GTA, or 3 full time Canadian employees if outside GTA
The position for the nominated applicant must be permanent and full-time and necessary for the company’s operations
Nominated applicants must have at least two years of work experience in the occupation for which they have received a permanent offer
Employers must demonstrate recruitment efforts if nominating a physician not currently employed in Canada on a Temporary Work Permit
Navigating Immigration for Foreign Physicians

28. Caring for People with High Medical Needs Class
Program introduced as partial replacement for Live-in Caregiver Class
No live-in requirement
Allows a more direct pathway to permanent residence for certain medical professionals, with targeted processing times of 6 months
Navigating Immigration for Foreign Physicians

29. Caring for People with High Medical Needs Class
Must have at least 24 months of full-time work experience in the last four years in one of the following occupations:
Registered Nurses
Licensed Practical Nurses
Nurse Aides, Orderlies, and Patient Services Associates
Home Support Workers and Related Occupations
Must meet minimum language requirements
Must have completed a Canadian post-secondary credential of at least one year (or equivalent if a foreign credential)
Navigating Immigration for Foreign Physicians

30. Questions?

31. ravij@gands.com 416 866-2186 Green and Spiegel LLP
390 Bay Street, Suite 2800
Toronto, ON M5H 2Y2
Canada