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Hiring a foreign worker: a path full of pitfalls?

Me Natacha MIGNON - 10/01/2017

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.

Immigration rules

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.

Is a work permit always necessary?

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.

What work permit to get?

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 labor 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.

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:

– Nationality of candidate

– Age

– Completed Diplomas

– Current and past work experiences

– Salary, title and duties of the position being considered in Canada

What happens if a work situation does not work out?

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 labor 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.

Can a work permit be extended?

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.

Natacha MIGNON, Immigration Attorney and Partner

This article contains general information regarding immigration, is intended to provide a general understanding of the terms and does not constitute legal advice. For complete legal advice, contact our professionals.

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