Category Archives: Work Visa

Accelerated Labour Market Opinions

Posted on by
Reply

On April 25, 2012, Human Resources and Skills Development Canada (“Service Canada”) launched two initiatives that will significantly change the process by which Canadian employers interested in hiring foreign workers apply for Labour Market Opinions (“LMO”).   These are the Accelerated Labour Market Opinion Initiative (“A-LMO”) and the introduction of online applications.

The A-LMO

The purpose of the A-LMO is to reduce LMO processing times.  Service Canada has indicated that their objective is that A-LMO applications will be processed in 10 business days, a significant reduction from the current average LMO processing time of 2-4 months.

In addition to reduced processing times, the A-LMO will also feature:

  • A reduction in the amount of documentation that employers have to submit to Service Canada when they apply for their A-LMO.  Significantly, employers will no longer have to submit proof of recruitment.
  • Flexibility on the prevailing wage.  A wage of up to 15% less than the prevailing wage for an occupation will be accepted provided that the employer pays similar wages to Canadians and permanent residents employed in the same occupation.
  • A waiver of the mandatory in-depth interview.

Eligibility

To be eligible to participate in the A-LMO, an employer must:

  • Have been issued at least 1 positive LMO within the last 2 years;
  • Have a clean record of compliance with the Temporary Foreign Worker Program within the last 2 years;
  • Not have been the subject of an investigation, infraction, or a serious complaint; and
  • Not have any unresolved violations or contraventions under provincial laws governing employment and recruitment.

Eligible employers can only apply under the A-LMO if they are trying to fill a high-skilled position classified under the National Occupational Classification skill type 0, A, and B.  These positions are generally occupations which are management, professional, or technical in nature.

Applications to fill positions in film, entertainment, and agriculture are specifically not eligible for the A-LMO.

Compliance Review 

Although employers will no longer have to submit proof of recruitment and undergo an interview, they will have to attest that they complied with Service Canada’s requirements for hiring of foreign workers, including that the employer:

  • provided wages, working conditions, and an occupation to the foreign worker that was substantially the same as those offered in the A-LMO application;
  • provided wages and working conditions to the foreign worker that were the same as those offered to Canadian citizens and permanent residents in the same occupation and work location;
  • performed the minimum recruitment efforts;
  • filled a labour shortage;
  • ‘s employment of the foreign national did not adversely affect the settlement of a labour dispute; and
  • abided by the relevant federal/provincial/territorial laws that regulate employment and recruitment.

In order to ensure compliance, Service Canada will conduct compliance reviews on approximately 18% of A-LMOs. 

Service Canada has specifically indicated that employers that pay less than the prevailing wage will likely be subjected to compliance reviews. 

Service Canada has also instructed employers that they should retain all documents related to their A-LMO applications for up to 6 years, and that failure to do so will result in their future ineligibility to participate in the A-LMO initiative.

Employers found non-compliant will:

  • be ineligible to use the A-LMO initiative in the future;
  • face the possible revocation of LMOs where Work Permits have not been issued;
  • have their breach shared with other branches of government; and
  • face greater scrutiny on any pending or subsequent LMO applications. 

Do People in the International Transportation Industry Require Work Permits?

Posted on by
Reply

Many people who work for industries that involve the international transport of cargo and passengers frequently enter Canada.  These include truck drivers, bus drivers, shipping and airline personnel.  We often receive inquiries as to whether these individuals require work permits.

Maritime Travel

The determination of whether crew on a maritime vessel  require a Work Permit to work in Canada depends on whether the vessel meets the definition of “coasting trade” as defined in Canada’s Coasting Trading Act, SC 1992, c 31.  The Coasting Trade Act defines “Coasting Trade” as:

the carriage of goods or passengers by ship… from one place in Canada… to any other place in Canada… either directly or by way of a place outside Canada.

Subject to certain exceptions, when a vessel meets the above definition of “coasting trade”, then the vessel’s foreign crew will require a work permit to work in Canada.  The reason is because the vessel is involved in cabotage (domestic transportation of goods and services) activities within Canada’s domestic labour market.

A helpful indicator of whether a foreign vessel meets the definition of “Coasting Trade” is whether the vessel is required to possess a coasting trade license.  If it does, then it is very likely that the vessel meets the definition of “Coasting Trade.”

The following situations are examples of scenarios where a foreign crew on a vessel would require a Work Permit:

  • Where a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port.  For example, a cruise ship which embarks in Vancouver, disembarks permanently some people in Victoria, and then disembarks the remainder in Anchorage would likely require a Work Permit.
  • Where a cruise ship embarks passengers at one Canadian port and then ends the cruise and disembarks at another Canadian port, regardless of whether the itinerary included a stop at an international port of call.  For example, if passengers embark in Vancouver, make a stop in Juneau, Alaska, and then end the cruise in Victoria, a Work Permit will likely be required.

However, there are two important examples of where a work permit would likely not be required.  These include:

  • Where a cruise ship’s itinerary includes at least one foreign port of call and ends at the original port of embarkation within Canada. For example, if passengers embark in Vancouver, make a stop in Seattle, and then disembark in Vancouver, a Work Permit is generally not required.
  • Where a cruise ship starts at a Canadian port of call and ends its itinerary at a foreign port of call.  For example, if a cruise starts in Vancouver, and ends in Juneau, a Work Permit will generally not be required, provided that no passengers were permanently disembarked in a Canadian city along the way.

Air Travel

Generally, any foreign crew member arriving on a flight into Canada from an international point of origin or departing Canada on an internationally bound flight will not require a Work Permit.  The Canada Transportation Act, SC 1996, c10 generally prohibits foreign crew members from performing domestic air service in Canada.

However, if a foreign company obtains a Ministerial Exemption to allow the foreign company to operate a publicly available domestic air service, then work permits may be required, depending on the circumstances.  (Eg. if there is an emergency, a Work Permit will not be required.)

As well, foreign charter flights that are authorized to travel within Canada in order to transport people in the sports and entertainment industry will generally not require a work permit.

Foreign nationals wishing to work aboard Canadian flights travelling between points within Canada will generally require work permits.

Highway

The North American Free Trade Agreement governs whether foreign crew of a foreign land vessel require a Work Permit.  NAFTA provides that foreign crew members working aboard vehicles operating within Canada may deliver or pick-up goods and passengers across the U.S. / Canada border so long as they do not pick up and deliver from one location to another point within Canada.

It is important to note that if the foreign national works for a Canadian vessel, then the foreign national will require a Work Permit.

What Obama Should Have Said

Posted on by
Reply

US President Barack Obama recently did a Question & Answer session on Google +.  One of the questions that he was asked came from an individual whose husband was unemployed despite having an engineering degree and over 10 years of experience as a semiconductor engineer.  She wanted to know why the government continued to issue work visas to people for similar positions even though her husband (and other Americans) are out of work.

President Obama answered the question by stating that he found it “interesting” that the individual’s husband couldn’t find a job.  Mr. Obama even said that he would be interested in seeing her husband’s resume so that he could forward it on to companies who claim to face labour shortages.

The whole exchange can be viewed here:

In my opinion, Barack Obama should have answered the question by simply stating that he needed more information.

Where does this unemployed individual live?  Is he willing to relocate for work?  How far is he willing to relocate?  Has he been applying for work?  Where has he been applying for work?  Why was he laid off three years ago?  Has he been given any interviews?  If yes, does he know why he was not hired?  How has he tried to keep his skills up-to-date during the past three years that he has been unemployed?

In Canada, for example, the Labour Market Opinion test for whether the employment of a foreign national will have a negative impact on the Canadian labour market is not whether there is a Canadian with similar education and work experience anywhere in the country.  Rather, it is whether or not the hiring of the foreign national would prevent a Canadian who has applied for the job, is qualified for the job, who has presented him/herself in a respectable manner to the employer, and, who, if necessary, is willing to relocate for the job, from taking the job.

Simply stating “foreigners shouldn’t be hired anywhere in the country until I get a job” is simply not a realistic, mainly because of the above-mentioned variables.

Immigration Consequences of the Omnibus Crime Bill

Posted on by
Reply

On December 5, the House of Commons passed Bill C-10, also known as the Safe Streets and Communities Act, or the Omnibus Crime Bill.

Bill C-10 introduces numerous changes which will affectCanada’s immigration system:

Changes to Sentencing Provisions

Crime Sentence Immigration Consequence
Sexual Interference (touching an individual who is under the age of 16) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Invitation to Sexual Touching (for an individual who is under the age of 16) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Sexual Exploitation (of a young person) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Incest Remains a hybrid offense with a maximum term of imprisonment of not more than 14 years. Conviction results in inadmissibility for serious criminality.
Bestiality Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Making Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Distributing Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Possession of Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 5 years. Convictions results in inadmissibility for criminality.
Accessing Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 5 years. Conviction results in inadmissibility for criminality.
Parent or Guardian Procuring Sexual Activity where the Victim is Under the Age of 16 An indictable offense whose maximum penalty rises from not exceeding 5 years to 10 years. Conviction now results in inadmissibility for serious criminality rather than general.
Parent or Guardian Procuring Sexual Activity where the Victim is Over the Age of 16 but under 18 Remains a indictable offense with a new maximum term of imprisonment of not more than 5 years. Conviction results in inadmissibility for criminality.
Householder Permitting Sexual Activity where the Victim is Over the Age of 16 but under 18 Remains a indictable offense with a new maximum term of imprisonment of not more than 2 years. Conviction results in inadmissibility for criminality.
Making Sexually Explicit Material Available to Child New crime.

 

Hybrid offense with a maximum term of imprisonment of not more than 2 years.

 Conviction results in inadmissibility for criminality.
Luring a Child Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Agreement or Arrangement to Commit a Sexual Offense Against a Child Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Indecent Acts Goes from being a summary offense to a hybrid offense with a maximum term of imprisonment of not more than 2 years. Conviction results in inadmissibility for criminality.
Exposing Oneself to a Minor Remains a hybrid offense with a maximum term of imprisonment of not more than 2 years. Conviction results in inadmissibility for criminality.
Sexual Assault Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Sexual Assault Causing Bodily Harm Remains a hybrid offense with a maximum term of imprisonment of not more than 14 years. Conviction results in inadmissibility for serious criminality.
Trafficking or Possessing for the Purpose of Trafficking a Schedule I or II substance Remains an indictable offense with a maximum term of imprisonment of life. Conviction results in inadmissibility for serious criminality.
Trafficking or Possessing for the Purpose of Trafficking a Schedule II in less than a prescribed amount Becomes an indictable offense with a maximum term of imprisonment of not more than 5 years. Conviction results in inadmissibility for criminality.
Importing and Exporting a Schedule I, II substance Remains an indictable offense with a maximum term of imprisonment of life. Conviction results in inadmissibility for serious criminality.
Producing a Schedule I substance Remains an indictable offense with a maximum term of imprisonment of life. Conviction results in inadmissibility for serious criminality.
Producing a Schedule II substance, other than marijuana Indictable offense with a maximum sentence of imprisonment to life. Conviction results in inadmissibility for serious criminality.
Production of Cannabis Maximum sentence increases from not more than 7 years to not more than 14 Conviction now results in inadmissibility for serious criminality.
     

In noting the above, it is important to note that Flunitrazepam and Gamma-Hydroxybutyric acid (both common date rape drugs) have been added to Schedule I.

Banning Some Foreign Workers

The Minister shall now have the ability to issue instructions prescribing public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

Immigration Officers shall refuse visas if the Minister’s Instructions directs them to do so.

In essence, this is the re-introduction of Bill C-56 – The Preventing the Trafficking, Abuse, and Exploitation of Vulnerable Immigrants Act, discussed here.

Who Needs a Medical Exam to Study in Canada?

Posted on by
Reply

A couple days ago I received a question regarding whether someone who is a Hong Kong national needs a medical exam to study in Canada.

Foreign students have the same medical requirements as those that apply to work or simply visit Canada.

Generally, no medical examination is required for people who intend to visit Canada for six months or less unless they intend to work in certain designated occupations.

If the duration of the student’s visit is more then six months, then a medical examination will be required if they will also work in one of the above designated occupations, or, if they have resided or stayed temporarily for six or more consecutive months in a designated country or territory in the one year immediately preceding the date that they seek entry to Canada.

In other words, it is not a country of nationality or citizenship.  It is a question of where you have been.  An American who spent six months volunteering in a designated country will need a medical examination.

The designated country list can be found here.

As for the Hong Kong national, assuming that he spent six months or more in Hong Kong prior to seeking entry to Canada, then the answer would be “yes, he needs a medical if his intended period of studies is six months or more.”

Business Visitor or Work Permit Required?

Posted on by
Reply

Photo by johnny9s

On October 6, 2011, the Vancouver Sun ran a story about an individual who had to pay a $8,000 fine after he was convicted of misrepresentation under the Immigration and Refugee Protection Act (the “Act”).  According to the story:

A U.S. citizen has been fined $8,000 for lying about his true purpose of coming to Canada last summer — to work at the Crankworx mountain bike festival in Whistler.

He also told 12 other Americans working for him at Crankworx to tell Canadian border officers that they were going to Whistler to meet friends and attend the Crankworx event.

….

[An e-mail that a border officer discovered] detailed the work the man and 10 others would be performing in Whistler, but [the person convicted] advised them to state on their declaration forms that they were coming to Canada for pleasure only to attend the event.

There is no question that the individual was counseling misrepresentation in advising his employees to state that they were visiting Crankworx for pleasure purposes instead of work.

What I don’t understand is why he thought that it was necessary for his employees to hide the fact that they would be working at Crankworx.  Was it because he did not think that they would be issued Work Permits?

Because if that was his reason, then it is very unfortunate that he did not realize that none of his employees likely needed Work Permits in the first place, as they would have been eligible to enter Canada to work without a Work Permit as Business Visitors.

What is a Business Visitor?

The Business Visitor category facilitates the entry of a broad range of individuals who intend to enter Canada to engage in business or trade activities without entering the Canadian labour market. Business Visitors do not need Work Permits.

The general criteria is that:

(a) the employee must not intend to enter the Canadian labour market;

(b) the employee’s activity must be international in scope; and

(c) the primary source of the worker’s remuneration should remain outside Canada, the principal place of the worker’s employer should be outside of Canada, and the accrual of profits of the worker’s employer should be outside of Canada.

Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional, or business conventions, or meetings and soliciting business.

The Citizenship and Immigration Canada Manual specifically notes that “marketing” for Business Visitors includes trade fair and promotional personnel attending a trade convention.

Conclusion

I would assume that all of the individual’s employees have been declared inadmissible to Canada for misrepresentation.  As they lied to immigration authorities about why they were entering Canada the declaration is probably justified.

Incredibly, because of the Business Visitor category, the employees never even needed Work Permits to begin with.

The Impact of the Temporary Foreign Worker Program on Alberta

Posted on by
Reply

flickr photo by DCZwick

In August 2011 Teresa Woo-Paw, the Alberta Parliamentary Assistant to the Minister of Employment and Immigration released a report titled Impact of the Temporary Foreign Worker (TFW) Program on the Labour Market in Alberta. The main thrust of the report was that Alberta’s workforce is projected to be 77,000 workers short between 2002 and 2012, with overall demand outpacing supply from 2015, and that Alberta should implement, and the Government of Canada should facilitate, Alberta implementing a program to attract labour through immigration to address the labour shortage.  The report contained numerous recommendations, some of which were accepted by the Alberta government.

The Political Back and Forth Between Jason Kenney and the Government of Alberta

In response to the report, Thomas Lukaszuk, Alberta’s Minister of Employment and Immigration, recently urged the federal government to remove the annual caps on the number of provincial nominees.

The Brooks Bulletin recently reported on Jason Kenney’s, the federal Minister of Citizenship and Immigration, response.  According to the Brooks Bulletin, he stated:

It would almost result in doubling national immigration levels to Canada when 80 per cent of Canadians are saying immigration levels are already high enough or are too high.

I think they are totally disconnected from reality on that.

To be honest with you there’s a tension between the need to keep this a Canada-first program and the need to facilitate filling positions in an efficient way.  We can’t just open up the rules willy-nilly. There has to be some reasonable rules in the program that ensures Canadians are getting the first crack [at jobs].

Although Jason Kenney is probably correct in noting that removing the provincial nomination quotas would result in a dramatic increase in immigration levels, the report contains a fact that should at least cause him to consider reallocating the quota.  The report noted that Alberta and Manitoba are allocated the same number of provincial nominees annually (2010 allocations were 5,000 for each province), despite Alberta receiving almost eight times the number of temporary foreign workers as Manitoba, and its economy being significantly greater.

Complaints About Labour Market Opinions

The report also noted the frustration of Alberta employers with the process for obtaining Labour Market Opinions, and pointed out the following interesting suggestions and criticisms.

  • Employers in the hospitality industry suggested that an employer who owns a number of hotels (for example) could apply for just one LMO to cover several properties.
  • Employers voiced concerns that the current calculation of the prevailing wage rate is problematic for those with employees under collective agreements. When the prevailing wage rate calculation includes unionized workplaces, the perception is that wages may be artificially inflated.
  • Employers expressed concerns that temporary foreign workers who have less experience receive the same wage as a Canadian worker. As a result, this can become a source of friction with Canadian workers, especially when the prevailing wage rates are printed in job ads in small communities and other employers in the same industry are not able to offer the same salary.

I would add to that last comment that the prevailing wage rate also presents difficulties for employers looking to retain people on post-graduate work permits, because they are required to dramatically increase salary from an entry-level wage to the prevailing wage rate, which is often simply out of whack with the employer’s pay scale system.

Open spousal work permit program expanded in British Columbia

Posted on by
2

Photo by Matthew Grapengieser

 

A little known fact in Canada’s immigration system is that a foreign worker’s spouse or common-law partner may be eligible to apply for an “open” work permit that will allow him/her to accept any job with any employer in Canada.  For most of Canada, the condition is that the foreign worker must be working in Canada for six months or longer in a job that is skill level 0, A, or B in the National Occupational Classification.

On August 15, 2011, the program was significantly expanded in British Columbia under a Pilot Project that will last until February 15, 2013.  Spouses and common-law partners of temporary foreign workers engaged in NOC C and D skill categories are now eligible to obtain open work permits.

According to OB 337, Applicants must meet the following criteria:

  1. The applicant must be a spouse or common-law partner, or a dependent child, of a principal applicant described in sub-section ii below.
  2. The principal foreign worker must have been issued an employer-specific work permit that is valid for at least six months for an employer located in BC.
  3. Dependent children  must be aged 18-22 at the date of application, and eligible to work in BC.
  4. Family members of seasonal agricultural workers (including the Seasonal Agricultural Worker Program participants), Live-in-Caregivers (including non-LCP live-in caregivers) and temporary foreign workers in BC who have work permits issued under the International Experience Canada Program are NOT eligible for open WPs under this pilot.

A maximum of 1,800 work permits will be issued under the pilot project.

This program makes perfect sense.  I have always thought it almost insulting that we allow certain foreign workers to bring their families with them when we work in Canada, while we tell others that they are not skilled enough to do so.  I understand the policy reasons for it of course, but it nonetheless always rubbed me the wrong way, and I’m glad that British Columbia is leading an initiative that could change this restriction.