A Passport to Effective Foreign Worker Recruitment

A Passport to Effective Foreign Worker Recruitment Understanding Canadian Immigration Benjamin A. Kranc 425 University Avenue Suite 200 Toronto, Ontario M5G 1T6 Tel: (416) 977-7500 E-mail: bkranc@kranclaw.com Web: www.kranclaw.com 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 1

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 2

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 3

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 4

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) 5

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 6

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? 7

Professionals NAFTA; e.g. Management Consultant GATS; industry specific, 90 day maximum Other 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 8

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. 9

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 10

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 11

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 12

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 13

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 14

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 15

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. 16

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 17

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 18