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A work permit is by nature temporary. No exception to the rule. After the initial permit or successive renewals, your employees will have to return to their country of citizenship; unless they have initiated an application for permanent residence.
A common mistake by employers is not to anticipate the termination of work permits of their foreign employees. By learning about the Québec Experience Worker Experience Program (PEQ), employers can save the hassle and expense when their employees’ licenses expire.
The PEQ is defined on the site of the Ministry of Immigration, Diversity and Inclusion. It is an accelerated program for the selection of skilled workers to become eligible for a Québec Selection Certificate (CSQ). This will allow them, in a second time, to apply for permanent residence in Quebec.
The PEQ is open to foreign employees who have occupied a category A, B or O position according to the National Occupational Classification over a 12-month period in the last 24 months.
The foreign employee must also prove a good knowledge of French.
Unless when the candidates can prove that they attended school in French, they would not be required to pass a language test.
This means that the formalities to apply are simplified. As for processing times, they are only three to four weeks!
Another advantage is that a qualified foreign worker who holds a CSQ may have his work permit extended with his current employer (or another employer, of course) under facilitated conditions.
The employer in particular does not have to follow the Labor Market Impact Study process to extend it for an additional 24 months, which leaves the foreign national sufficient time to become a permanent resident.
Therefore, I can only recommend employers hiring foreign workers under a work permit for more than six months to encourage them to inquire about their eligibility for the PEQ.
For more information on the PEQ, click here.
With the closing of two of the programs for business people until March 2018, foreign entrepreneurs wishing to start a business in Quebec or buy a business are wondering if they have other options.
It should be noted that Quebec usually offers three programs for business people, as it designates them, intending to settle in the province:
The financial and experience-related criteria for the above programs are summarized in the table below:
|Net income lawfully obtained, alone or with accompanying spouse or common-law partner||$300 000 CAD||$100 000 CAD||$1 600 000 CAD
In addition, the signing of an investment agreement of $ 800,000 CAD, with a financial intermediary authorized to participate in the Investor Program.
|Experience required||Experience in operating a business for at least two years acquired within the five years prior to the date of application in a profitable and lawful business (agricultural, industrial or commercial) Alone or with the accompanying spouse or common-law partner, at least 25% of the shareholders’ equity.||Work experience of at least two years in the profession or trade to be practiced in Québec||Experience in management in a licensed agricultural, commercial or industrial enterprise; a licensed professional enterprise whose staff, excluding the candidate, holds at least the equivalent of two full-time positions; an international organization or a government, including any of its departments or agencies.|
Each of these programs leads to permanent residence. However, these options have a couple drawbacks: processing times extend out over several years and are open, favouring francophone applicants, exclusively by quotas.
In Quebec, offers are therefore rare to obtain permanent residence in the Business category.
This is all the more the case since the Quebec Ministry of Immigration, Diversity and Inclusion announced that the Entrepreneurs and Self-Employed category will remain closed until March of 2018 and that a reform of these programs is in progress.
One important point: under the Canada-Quebec Accord, the province of Quebec operates its own program for entrepreneurs. In other words, foreign nationals wishing to operate a company in Quebec will not be eligible for federal programs such as the Business Start-Up Visa.
In this context, is there is no hope of operating a business before 2020 in Quebec? Of course, there is; provided you turn to the options available with regards to temporary residence.
With the exception of those with an open work permit and cases where intra-group transfers are possible, most foreign nationals wishing to enter Québec will have to apply for a work permit as an entrepreneur.
As with a conventional work permit, it is generally necessary to obtain a prior Labor Market Impact Assessment (« LMIA ») under the owner-operator category and then apply for a work permit once a positive or neutral LMIA has been issued.
The main criteria of the owner-operator LMIA, without a job posting, have recently been clarified and are now established as follows:
• Demonstrate that the foreign worker holds a controlling interest in the company; • Demonstrate that this temporary entry will result in the creation or maintenance of employment opportunities for Canadians and permanent residents or the transfer of skills to these same Canadians and permanent residents;
• Not be in a position where they could be laid-off.
The entrepreneur, who is the majority stakeholder within their company, may be exempted from the LMIA process if they can meet the requirements of a C11 exemption; demonstrating in particular:
• The profits and economic benefits generated by the company will remain Canada,• The planned work period must be truly temporary,
• The applicant must demonstrate that the business will bring a significant social, economic or cultural benefit to Canada,
• The service must be unique in that it does not compete directly with companies that are already well established in Canada.
A work permit under this exemption may be issued for a maximum of two years and may only be extended upon presentation of proof of selection as an entrepreneur by a province.
A work permit application as an entrepreneur must be rigorously prepared. In particular, a foreign national must be prepared to provide any evidence to demonstrate the prospect of economic success of the project (i.e. a business plan established by an accountant), past experience as an entrepreneur and what makes them an exceptional candidate.
As the owner of the business they want to operate, the foreign national will not be eligible for the Québec Experience Program (QEP) to apply for the Quebec Selection Certificate. If they intend to remain in Canada upon the expiry of their status, the entrepreneur will be smart to start the process of applying for permanent residence, if they are eligible, within the first few months of receiving their work permit.
The eligibility of the candidate to be selected by a province is easily measurable in advance, even in advance of any project. Think about it!
You have just found the ideal candidate: they have the training, experience and personality you are looking for. You are ready to hire them; however, they are neither a Canadian citizen, nor a permanent resident.
Apart from very large companies with in-house international mobility services that are well-versed in the various recruitment programs for foreign workers, many employers may choose not to hire a foreign worker due to their lack of knowledge concerning immigration in Canada. It would be a pity for your company to deprive itself of a talented candidate, due to such a lack of knowledge, when there are many opportunities for obtaining a work permit in Canada.
The purpose of this column is to establish a base knowledge on the topic of admission into Canada of a foreign worker, to eliminate certain preconceived notions, and to contribute, both to employers and candidates, in developing a better understanding of temporary immigration.
With the above in mind, here are four points to consider when considering hiring a foreign worker.
Just about! The notion of « work » is understood in a very broad sense, including any « activity that gives rise to the payment of a salary or commission, or that competes directly with the activities of Canadian citizens or permanent residents in the labor market in Canada « . This may even extend to an unpaid internship or volunteer activities. It goes without saying that an employer must not allow a foreign worker to perform any job-related testing or training until they have their work permit in hand.
The employer often refers to the idea of »sponsoring » a candidate for a work permit. This analogy is of interest because most work permits (excluding open work permits) are established on the basis of an offer of employment in Canada. However, a simple job offer received from a Canadian employer is generally not sufficient to allow a foreign national to work in Canada.
An application for a work permit involves following a well-established process, which may take a few hours to several weeks, depending on the case. Does this mean that we should give up? Absolutely not. But the employer must know the different programs available and choose the one best suited to the job they are proposing and the foreign worker they wish to hire.
A common concern among employers is that they have to go through the Labor Market Impact Assessment (LMIA) process. The main concern of employers is that they must first obtain permission to hire a foreign worker after having demonstrated to the authorities that this hiring will not have a negative impact on the labour market in Canada. This usually includes a national job posting and a transition plan.
Fortunately, there are many exceptions to this process.
Also, be aware of the fact that there are many positions that can be the subject of a simplified LMIA process in Quebec (therefore exempt from posting the position nationally); which includes several in the field of communications, marketing, Web, IT, video games and VFX. To find out which of these positions qualify for streamlined processing (in French), click here:
Similarly, there are frequently candidates who would benefit from international mobility programs such as the Young Professionals or intra-company transfer programs, for which a LMIA is not required. These LMIA exemptions make the work permit process much quicker and smoother.
Here is the information you need to know, to determine which program will be the most appropriate for an application to obtain a work permit in Canada:
When employing a foreign worker, a perceived barrier to employers still depends on the belief that they are required to secure employment for the duration of the work permit, even if the employee-employer relationship deteriorates. This is a misconception. A foreign national, in the same way as a Canadian, may be dismissed or let go from their job, in accordance with the labour laws applicable in Quebec and / or Canada. The possibility of this reality must also be taken into consideration by the foreign worker, who must bear in mind that a work permit does not guarantee their employment. Moreover, since most work permits are restricted to an employer, the termination of employment raises the question of whether the foreign national will be eligible to stay in Canada for the remainder of their issued work permit.
A work permit can be issued for a period of a few days up to 36 months. The work permit can then be extended, however, depending on the job offered, the extension may be limited to a number of years. This temporary status implies, according to the immigration laws in Canada, that the foreign worker will leave Canada at the end of their authorized stay.
Therefore, in order to avoid a large amount of uncertainty, we recommend that the issue of « post-work permits » be addressed in the first few months of employment, in order to leave sufficient time for the application to be processed. For example, if the foreign worker expresses his / her intention to settle permanently in Québec, the foreign worker may be guided in particular by the Québec Experience Program (« PEQ »), which allows a qualified foreign worker to obtain their “Certificat de Selection du Québec (« CSQ »)” fairly easily. The CSQ will most likely allow them to extend their work permit until they become a permanent resident. One of the conditions of this program is to have a good knowledge of French. Again, anticipating in advance, the candidate can take language courses to meet the criteria, if necessary.
The conditions of access to this program can be found here:
You have chosen to apply or renew a work permit at the border: is this a wise choice? It can be, provided you are well prepared and have checked it over before your application is presented.
You are preparing an application for a work permit or applying for a renewal of a work permit. However, processing times for an application submitted online or by mail appear to be incompatible with the reality of your business. You choose to apply for a border application: is this a wise choice?
In the vast majority of cases, a work permit can be submitted in paper form or online through the Immigration, Refugees and Citizenship Canada (« IRCC ») portal. In practice, the processing times indicated on the IRCC site will guide your choice.
Faced with these delays, the option of applying at the border may be perceived as a means of expediting the process of obtaining a work permit.
In practical terms, what are we talking about when we talk about this border crossing? A foreign national may, under certain conditions, apply for the issuance of a work permit upon entry into Canada by a land or airport boundary. Some nationals already present in Canada may also report to the land border crossing and apply for a work permit. In popular jargon, some people call it « flag polling » to leave Canada and come back immediately.
Before thinking in terms of saving time, the reflex is to check if you are eligible to apply at the border. The possibility of applying for a work permit at the border crossing is not an option available to all foreign nationals or for all types of work permit applications.
1- Who is eligible?
The condition to validate is the citizenship of the foreign candidate. Only nationals whose country of nationality is exempt from visa to enter Canada may apply by the border. You can find the list of visa exempt countries on the website of Immigration, Refugees and Citizenship Canada.
In addition, a new entry requirement now in effect must be kept in mind: citizens of countries not covered by the visa requirement must obtain an electronic travel authorization (ETA) to fly to or transit through Canada. Exemptions include, among others, citizens of the United States and travelers with valid Canadian visas.
Requests that are frequently made at the port of entry are:
It is therefore imperative to verify that the worker is eligible to apply for a work permit at the border post before proceeding.
2- Crossing the Border: Recommendations
Your application package: The foreign worker must have in their possession a well-prepared file, which they will have reviewed beforehand. They must know without hesitation where they will be working, the name of their superior, the duration of employment and the tasks to be carried out. They will also need to ensure that they have a valid passport for the duration of the permit applied for.
The application shall include at least the following:
Where and when to go?
The candidate can come to the border at any time to apply for a work permit. There are, however, some precautions to be taken to ensure that the experience proceeds as smoothly as possible.
With this in mind, make every effort to arrive on weekdays during office hours (9:00 to 17:00). The reason is simple: the immigration officer may want to verify an aspect of the request with the person who signed the job offer, so choose a time when the latter can be contacted. If this is not possible it should be ensured that the foreign worker’s border crossing time is known and that a representative of the employer can be contacted by telephone to answer a possible appeal from the immigration officer.
Social Networks and Other Accessible Information
Also pay attention to social networks or business card titles. A foreign worker or his employer may be tempted to advertise a promotion via the professional network LinkedIn for example, even before the application for a work permit is submitted. Sometimes a worker « embellishes » his resume with a different title than the one on the job offer.
It would be a mistake, which may suggest to an immigration officer that the worker and / or their employer have placed themselves or will be in noncompliance of the immigration laws. Therefore, ensure that any electronic documents or equipment, such as cell phones or computer equipment, carry strictly sincere, accurate information that is consistent with the status application that will be presented to the immigration officer.
Most employers are aware that in almost all situations a foreign national must first obtain a work permit to be authorized to work.
However, a work permit is by definition temporary and does not automatically renew itself. Action must be taken before it expires to keep the employee employed. This is where difficulties can arise.
As professionals, we are regularly consulted dealing with a request for a renewal at the extreme limit of validity of an employee’s work permit.
Some forget, others believe that their spokesperson will automatically take care of it. Having questioned an employee and his employer about the reasons why they consulted me so late, the employee replied that he believed his employer would take care of the renewal and the employer thought his employee had already become a permanent resident.
The consequences of not leaving enough time to renew the foreign worker’s work permit can be very costly.
By not anticipating the application for the renewal of a work permit, the candidate may no longer be eligible for certain programs that are easier to apply for and are less expensive to apply for because they are exempted from the LMIA process. For example, a holder of a CSQ for a skilled worker can renew their two-year work permit by following a much more simplified process.
A renewal requested online at the last minute will also deprive the employee, during the processing time of their application, of the possibility of leaving Canada, in order to maintain their status as an implied status worker. The loss of profitability and the induced disorganization are also consequences for the employer of an employee who will likely have to travel to and stay in Montreal for several weeks!
In emergency situations, the lower cost solutions that we as lawyers can offer; such as reviewing renewal application packages and alternative billing methods, are not available when faced with renewing a work permit that expires the same day.
Other consequences can easily be imagined: employee uncertainty, stress, spouse’s status etc.
The answer is a single word: anticipation! All employers should know the status of their foreign workers and have a copy of their permit. Creating a simple table with the following elements can avoid many disappointments:
This type of table will also make it possible to ensure that the working conditions offered to foreign employees are indeed those declared to the authorities and that they have not changed, thus justifying an application for the modification of their permit.
In addition, it is recommended to note in your professional schedule to discuss the renewal of the work permit with your employee three months before its expiry date. If you do not know how to proceed, take advice. A consultation might be all that is needed to guide you in your next steps.
Take advantage of the advice from this article to take a look at the work permits of your employees or ask them for a copy of their permits if you do not already have copies!
As an employer of foreign workers, you are likely to be faced with an inspection by the authorities to verify that the salary conditions offered are the same as those declared when applying for the permit. What are the best practices to adopt in these cases?
A frequent source of consultation with a lawyer on temporary immigration by employers is the receipt of a letter from Service Canada (LMIA) or Immigration or from Refugees and Citizenship Canada (exempt from a LMIA), notifying the employer that they will be subject to a compliance review for one of their foreign workers.
The receipt of this type of letter should not generate any particular fear. Indeed, at this stage, the authorities do not necessarily suspect fraud. Many checks are carried out as part of a random verification of compliance, as provided for in section 209.5 of the Immigration and Refugee Protection Regulations.
The first recommendation is to ensure that the requested deadline is met. If you find the time limit too short, we suggest that you contact the authorities and explain why you need more time.
The primary purpose of a compliance review is to ensure that the employer offers the foreign worker the conditions they declared to the authorities when hiring. They are not looking to trap or trick you.
Type of information typically requested:
To this effect, the following documents are most often required:
A business visitor, unlike a temporary worker, does not require a work permit for their activities in Canada. The temptation may therefore exist for a foreign national, whether to avoid the process or by ignoring the rules of immigration, to apply for admission to Canada as a business visitor rather than as a worker.
This is to be avoided in order to avoid the risk of illegally working in Canada and the consequences thereof.
The Immigration, Refugees and Citizenship Canada website contains a definition for a business visitor.
The following are the main points:
It goes without saying that an employer must not allow a foreign national who has entered Canada as a business visitor to do any testing or training until the worker has a work permit in hand, even if the activities are done for free or voluntarily.
One must be keep in mind that the concept of work is broadly understood by Immigration, Refugees and Citizenship Canada as any « activity that results in the payment of a salary or commission or is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market « . The fact that the work is not remunerated is therefore not a guarantee that a work permit is not required.
You can learn more about what it means to be a business visitor in Canada by clicking here
An entry into Canada as a business visitor does not, by definition, require a work permit. The fact remains that a foreign national is advised to prepare for their entry into Canada adequately and to bring with them the necessary documentation to explain the nature of the activities they will participate in while in Canada and the reason for their visit.
This will ensure that the foreign national can apply for admission at the border or, if in doubt, through a preliminary opinion with Immigration, Refugees and Citizenship Canada.
If this is the case, and depending on their situation, the foreign national may be advised to bring with them:
In case of any doubt about the nature of your stay, consult the Canadian authorities or a professional to avoid getting into any unintentional legal trouble.
Among the many programs available to apply for a work permit, what is the right one for you or the foreign worker you want to recruit? Find out by reading this article.
In immigration, as in French grammar, there is the rule and the exception to the rule.
In order to obtain a work permit, “the rule” would be a Labor Market Impact Assessment (LMIA), as prescribed by the Temporary Foreign Worker Program (TFWP), and the exception would be to participate in the International Mobility Program (IMP), whereby the employer is exempted from a LMIA.
The Foreign Worker Program, it should be noted, allows employers to hire foreign workers to address temporary shortages of labour and skills, as defined by Immigration, Refugees and Citizenship Canada (IRCC). The employer will have to obtain a notice, from the authorities, that this hiring will not have a negative impact on the job market in Canada.
When applying for a work permit under the International Mobility Program (IMP) the application process follows a more fluid and largely simplified process with generally shortened or even canceled processing times when an application can be made, under certain conditions, at a border crossing.
In general, it is therefore recommended that any employer check whether the situation of the foreign candidate they want to hire is consistent with one of the IMP permits, before starting a LMIA application; whether simplified or not.
The following permits, among others, are granted under the International Mobility Program:
Please note that each program has eligibility criteria, which are detailed on the Citizenship and Immigration Canada website.
Before opting for any of the programs, if you are applying for a permit yourself, it is imperative that you verify that the candidate and the position offered meet all the prescribed requirements.
Please note these five pieces of information that you should absolutely know before deciding on the specific type of work permit to apply for:
Thus, by knowing the candidate’s age and nationality, you will know which International Experience Canada program will or can be considered, as well as the length of the permit that can be issued.
If your candidate is a US citizen, you may want to check whether a NAFTA permit could be issued.
By knowing the completed qualifications, current and past work experience of the candidate, and, the wage, title and job requirements of the position being considered in Canada you will be able to refine the types of possible permits which could be considered in the specific case of the foreign worker.
These last three criteria will also enable you to determine, in the event that you do not qualify under the IMP, whether you must follow a simplified or regular LMIA process.
To view a list of all available IMP permits, click here.