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Benjamin A. Kranc

425 University AvenueSuite 200Toronto, Ontario M5G 1T6Tel: (416) 977-7500E-mail: bkranc@kranclaw.comWeb: www.kranclaw.com

A Passport to Effective Foreign Worker Recruitment

____________________________Understanding Canadian Immigration

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

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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

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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”

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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

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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)

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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

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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?

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Professionals NAFTA; e.g. Management Consultant GATS; industry specific, 90 day maximumOther

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

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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.

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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

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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

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√ 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

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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

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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

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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

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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.

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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

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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

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Benjamin A. Kranc

425 University AvenueSuite 200Toronto, Ontario M5G 1T6Tel: (416) 977-7500E-mail: bkranc@kranclaw.comWeb: www.kranclaw.com

A Passport to Effective Foreign Worker Recruitment

____________________________Understanding Canadian Immigration