by Evan Green, Partner, Green and Spiegel LLP
What do HR Professionals need to know?
There are really only two questions that HR professionals have when it comes to hiring foreign nationals in Canada:
1. Do I need to go to the trouble of getting a work permit?
2. How long will it take to get a work permit?
There are four common routes for a foreign national to come to Canada: as a business visitor; under the North American Free Trade Agreement (NAFTA) professional category work permit; an intra-company transfer work permit; and a work permit based on a positive Labour Market Opinion (LMO). There are other options; however, they are less frequently used and more complex in terms of processing. It is important to consider the qualifications of the foreign national, the specific goals of a particular project or assignment in Canada and the broader goals of the employer.
Business visitor
A business visitor is not “a worker,” per se. A business visitor is a foreign national who enters Canada to conduct “international business activities.” Canadian immigration laws stipulate that acceptable international business activities include attending meetings, seminars and/or conferences; performing after-sales services pursuant to an original purchase agreement; or performing warranty-related work on machinery purchases, as set out in the original purchase agreement. The key difference between a business visitor and a work permit holder is that the foreign national entering Canada as a business visitor cannot engage in employment that will provide services, create competition or remove opportunities from within the Canadian labour market. Canadian immigration laws dictate that these types of activities require work permits. Foreign nationals who wish to enter Canada as business visitors and who do not require a Temporary Resident Visa (TRV) may apply for their business visitor status at the port of entry. However, if a TRV is required, then the applicant must apply, in advance, at a Canadian Consulate or Embassy.
If the foreign national does not qualify for business visitor status, then he/she must obtain a work permit. The most popular ways to process a Canadian work permit are the NAFTA professional category, the intra-company transfer category or with a positive Labour Market Opinion.
NAFTA professional
The NAFTA professional category work permit is the best option for our neighbours to the south. In order to qualify as a NAFTA professional, the foreign national must be an American or Mexican citizen typically with a specified professional degree. Recognized occupations include accountants, architects, engineers and management consultants. Citizens of the United States may obtain work permits under this category at the port of entry, while citizens of Mexico must obtain these permits through a Canadian Consulate or Embassy in Mexico. Canada has also signed Free Trade Agreements with Peru and Chile and there are similar categories for professionals from these countries to work in Canada.
Intra-company transferee
The second best option for obtaining a work permit is as an intra-company transfer. The foreign national:
• Must be employed by a multi-national company at the time he/she would like to work for a parent, subsidiary, branch or affiliate of that company in Canada
• Must have worked outside of Canada for at least one year of the previous three-year period
• Must be transferred to a similar full-time position in a managerial or specialized knowledge position
If the employee does not require a TRV, then the work permit may be issued at the port of entry; in all other circumstances, the work permits are issued at a Canadian Consulate or Embassy.
Positive LMO
When a foreign national does not fit into either of the above two options, the general work permit rule applies, and the foreign national must obtain a work permit through the more complicated LMO application. The LMO is a labour certification process, which involves demonstrating that local recruitment has been unsuccessful and there is a need to hire a foreign national. The recruitment process may differ depending on where the position falls under the National Occupational Classification (NOC). The NOC is a classification system set up by Human Resources and Skills Development Canada (HRSDC), to provide standardized language for describing the work performed by Canadians in the Canadian labour market.
Under the LMO process, employers must meet very specific advertising and recruitment requirements before they are able to hire a foreign national. The employer must conduct recruitment activities consistent with the practices within the occupation until an LMO has been issued. If the duration of employment is less than six months, there may not be a need to advertise. However, if the duration of employment is more than six months, employers must recruit for the position following very specific recruitment guidelines that include advertising for one month even before they are able to apply for the work permit.
Applications are assessed by examining the employer’s past compliance with employment and recruitment laws, whether the employer can reasonably meet the terms of the job offer, whether the employer is “actively engaged” in the business, whether the job offer is congruent with the employer’s reasonable employment needs and is consistent with the type of business the employer is engaged in and, of course, whether there is shortage in the Canadian labour market for this type of position.
The answers to the two questions posed earlier are:
1. Yes, you might need to go the trouble of getting a work permit.
2. It can take very little time if the foreign national can be processed at the port of entry and much longer if an LMO is required and even longer if consular processing is required.
The third question is, inevitably, how do we keep the foreign national in Canada permanently?
Evan Green is a partner at Green and Spiegel LLP in Toronto.