Canada: Corporate Immigration

The Immigration and Refugee Protection Act (IRPA) governs immigration in Canada and outlines two ministers responsible for immigration and refugee matters: the minister of Citizenship and Immigration Canada (CIC), and the minister of Public, Safety and Emergency Preparedness (PSED).¹ Immigration Refugees and Citizenship Canada (IRCC) is generally responsible for immigration policy development and the processes for facilitating the arrival of immigrants, providing protection to refugees, and granting citizenship. The minister of PSEP is generally responsible for immigration enforcement matters, such as those carried out by the Canada Border Services Agency (CBSA). Those functions include the management and operation of Canada’s borders and port of entry responsibilities.

Under Canada’s Constitution, jurisdiction over immigration is shared between the federal, provincial, and territorial governments. While provincial and territorial legislatures currently play a substantial role in the selection of persons immigrating to their province or territory, the federal government assumes paramount jurisdiction for determining the category and number of immigrants that are ultimately admitted to Canada per year. To apply under a provincial program, a foreign national is first nominated by a province or territory and then apply to the federal government to become a permanent resident.

¹ The minister of Citizenship and Immigration Canada’s title is Minister of Immigration, Refugees and Citizenship. The Department of Citizenship and Immigration Canada is now called Immigration, Refugees and Citizenship Canada. The Department of Public Safety and Emergency Preparedness is now called Public Safety Canada. The previous titles are used in this chapter because this is the way they are referenced in the Immigration and Refugee Protection Act of Canada.

Foreign nationals who want to work in Canada on a temporary basis are generally required to have a genuine job offer to obtain a work permit, unless exempt. Foreign nationals may obtain employer-based work authorization through one of two streams:

1. The Temporary Foreign Worker Program (requires a Labour Market Impact Assessment Application); or
2. The International Mobility Program (exempt from the requirement to obtain a Labour Market Impact Assessment)

Temporary Foreign Worker Program (TFWP)

This stream is led by Employment and Social Development Canada (ESDC) and administered in partnership with IRCC and CBSA. It is meant to be leveraged by employers as a last and limited resort to bring foreign workers to Canada temporarily when qualified Canadians are not available. ESDC is the department of the Government of Canada responsible for the labour market at the federal level.

To hire a foreign worker, employers must first apply to ESDC for a Labour Market Impact Assessment (LMIA) to determine the probable effect these workers may have on the Canadian labour market. The factors that are generally examined are an employer’s recruitment and advertisement efforts, labour shortages, wages and working conditions by region and occupation, and the potential for the transfer of skills and knowledge to Canadian citizens.

If approved, employers can proceed to hire a foreign worker for a limited duration. The foreign worker must then submit a work permit application to IRCC.

Common scenarios of foreign nationals that obtain work authorization under the TFWP include new hires, low-wage positions, academics, on-farm workers in primary agriculture, caregivers, and in demand STEM workers under the specialized Global Talent Stream program.

International Mobility Program (IMP)

This stream is managed by IRCC and is meant to promote Canada’s economic and labour market interests. Situations of foreign nationals that obtain work authorization under the IMP predominantly include skilled workers covered under International Free Trade Agreements, intra-company transfers, youth participating in global exchange programs, and other “open work permit” candidates. A summary description is below.

• Canada-International Non-Trade Agreements: Canada has over 20 international agreements for specific and niche occupations.
• CUSMA (formerly NAFTA) Professionals: a list of over 60 occupations that can enter to provide professional services (Citizens of USA and Mexico).
• Canadian interests: Intra-Company Transferees (“ICT”): Executive, Senior and Functional Managers and Specialized Knowledge workers transferred to Parent, Subsidiary, Branch or Affiliate in Canada.
• GATS Professional: Workers who will be engaged in short-term service in Canada at a professional level in a designated occupation. Must be a citizen of a member nation (164 members).
• International Free Trade Agreements (FTAs): Canada has FTAs with various other countries, including Columbia, Peru, Chile, Panama, and Korea. Other multinational free trade agreements include The Comprehensive and Progressive Agreement for Trans-Pacific Partnership, The Canada-European Comprehensive Economic Trade Agreement (CETA) and The Agreement on Trade Continuity between Canada and the United Kingdom of Great Britain and Northern Ireland (traders, investors, graduate trainees, professionals, technicians, and ICTs).
• Emergency Repairs: Personnel required for emergency repairs to industrial or commercial equipment to prevent labour disruption
• Reciprocal Employment: pertinent to organizations that can demonstrate they provide employment opportunities for Canadian citizens or Permanent Residents abroad. (Ratios where the outgoing is higher than the incoming is favorable); and
• Spouses (including common law partners): Spouses of skilled workers;
• International Students and Postgraduates: categories include co-op or internship, off-campus work, and post-graduate work permits where, following the graduation from a Canadian post-secondary institution, international students may receive a maximum 3-year work permit.

General processing times for work permits²

The timeline for securing a work permit depends on the category of work permit and the associated process and procedure designated for the occupation and the foreign national. The table below represents the time it generally takes the government to render a decision following the submission on an application.

Despite the above average processing times, employers that are striving to attract top skilled talent from outside of Canada can benefit from priority two-week processingtimes under the Global Skills Strategy. International Experience Canada applicants, however, are not eligible for this enhanced processing time.

² As of August 2021, published during the COVID-19 pandemic, subject to change.

The options to work in Canada on a temporary basis without first having a job offer generally fall under the International Mobility Program (IMP) and are very limited. “Open work permit” options are generally permitted for reasons of public policy and for individuals that are already in Canada on valid temporary status. They predominantly include:

• International students that have graduated from a Canadian designated learning institution.
• Spouses and common-law partners of skilled workers or international students
• Youth participating in special programs
• Certain Individuals that have applied for permanent residence in Canada.

On the other hand, there are a multitude of options to apply for permanent residence independently under the Economic Classes outlined in the Immigration and Refugee Protection Regulations. There are two primary groupings under the Economic Class: Skilled Workers and Business Immigrants.

As the totality of the options are beyond the scope of this chapter, only the primary unsponsored work, entrepreneur, and investment streams are summarized below. As the Federal Skilled Trades Program and the prevalent Canadian Experience Class generally require job offers from Canadian employers and/or qualifying Canadian work experience, they are not described.

I. Skilled Workers

The Express Entry application management system serves as a gateway to permanent residence for skilled workers overseas or in Canada and manages applications under the Federal Skilled Worker Program, the Federal Skilled Trades Program, and the Canadian Experience Class. Provinces and territories can also recruit candidates from Express Entry through their respective programs to help meet regional labour market objectives.

Before a foreign national can create a profile in the Express Entry system they must:

• Take an approved language test
• Get an Educational Credential Assessment (ECA) if the education was completed outside of Canada
• Determine the National Occupational Classification (NOC) code3 for past work experience

From there, foreign nationals that meet the criteria for at least one of the immigration classes will be placed into a pool of candidates and ranked according to the Comprehensive Ranking System⁴(CRS), which is generally based on a candidate’s education, work experience, age, and language ability in English and/or French. The highest scoring individuals will receive an Invitation to Apply (ITA) for permanent residence in Canada either through a federal, provincial, or territorial program. They will have 60 days to submit their application or the ITA will lapse. Complete applications are generally processed within six months or less. The relevant permanent residence categories under which a foreign national may be drawn from the Express Entry pool are described as follows.

Federal Skilled Workers

This program is for skilled workers with foreign work experience who want to live outside the province of Quebec and immigrate to Canada permanently. The following minimum criteria must be met:

• At least one year of continuous full-time (or equivalent part-time) work experience in a NOC level O, A, or B within the last ten years
• Minimum language score in all four abilities
• Completed educational credential assessment showing the education is equal to a completed certificate, diploma or degree from a Canadian secondary institution or a post-secondary institution
• Proof of sufficient settlement funds, unless exempt

If all the minimum criteria have been met, the application is then assessed against six selection factors (age, education, work experience, arranged employment, language, and adaptability) that form part of a 100-point grid. The current pass mark is 67 points.

It is important to note that all Express Entry draws made in 2021 have been restricted to candidates in the Canadian Experience Class or those with Provincial nominations, targeting foreign nationals who are already in Canada.

Provincial Nominees

As mentioned in question 1, provincial and territorial programs (PNP’s) have their own unique immigration categories intended explicitly to meet regional labour market needs. There are more than 50 distinctive immigration streams that span Canada’s provinces and territories, providing ample immigration options for foreign nationals that wish to immigrate or start a business in Canada, depending on individual circumstances.

Foreign nationals that want to permanently settle in a particular province must first apply to the province to determine if the province’s eligibility requirements are met and, if successful, the application is then forwarded to the federal government for final admissibility determination and decision.

Provinces and territories can also recruit candidates from Express Entry (described above) through their respective programs to help meet local labour market needs. In this scenario, once a province selects a candidate from the pool and issues a certificate of nomination, the individual’s points score in Express Entry is increased significantly, virtually guaranteeing the issuance of an ITA on the federal government’s next round of invitations.

Of further note, when a province or territory selects an applicant, a nomination certificate is issued in the name of the foreign national. Under the IMP, this certificate can then be used to apply for a temporary work permit while the permanent residence application continues to process. Spouses of the principal applicant can also apply for a work permit and children can commence attending school.

Most PNPs have entrepreneur or investor streams with various requirements and selection criteria. General requirements are minimum net worth and investment requirements, business ownership or active management experience minimum net worth, and language abilities. A summary of the available options per province or territory is provided in the chart below.

II. Business Immigrants:
Federal Start-up visa program:

Initially introduced as a pilot program, this program was made permanent in 2018 and is touted as the most prolific and fastest investor pathways to Canadian permanent residence. It is intended to attract immigrant entrepreneurs to open innovative businesses that will create employment opportunities for Canadians and compete on a global scale.

To qualify under this program, a foreign national must develop a feasible business plan that will ultimately secure a commitment from a designated Canadian angel investor group, venture capital fund, or incubator to jointly launch the venture in Canada. As the entrepreneur, the foreign national must be actively involved in the management of the Canadian enterprise and own at least 10 per cent of the voting shares. Note that the program allows for the consideration of up to five (5) applicants under a single start-up business proposal. Each applicant can be classified as either “essential” or “non-essential” in the business proposal at the discretion of the applicants and the designated organization.

If these requirements are satisfied, a letter of support or commitment certificate is issued by the sponsoring group which will then trigger the immigration process. Although processing of the permanent residence application will take approximately 12 to 18 months, it is possible to apply for a temporary work permit to enter Canada and start building the business as soon as the letter of support or commitment certificate is issued. Accompanying spouses can also obtain a temporary open work permit and dependent children can commence attending school in Canada.

In addition to the business requirements, foreign nationals must score at least a Canadian Language Benchmark (CLB) of 5 in all four categories (reading, writing, listening, and speaking) for either English or French and have a minimum threshold of money to support themselves and the number of family members accompanying them to Canada.

Quebec Investor Program

The federal immigration investor program was made redundant several years ago, however, in the French-speaking province of Quebec, separate and distinct rules apply to foreign nationals who intend to permanently settle in the province. As a result of the Canada-Quebec Accord, Quebec enjoys the sole responsibility for setting its own immigration policies with minimal input at the federal level.

Consequently, a desirable passive Immigrant Investor Program continues to exist in Quebec, although the program is suspended until at least April 1, 2023. The Government of Quebec is revising and updating the program to strengthen its objectives around the integration and francization of immigrants.

Federal Self-employed Persons

This federal program is more limited than it may sound. It allows foreign nationals to immigrate to Canada if they have at least two years of “relevant experience” in cultural activities or athletics within the last five years before the date of application and ending on the day IRCC renders a decision. “Relevant experience” for a self-employed person under this program means that the individual has taken part in cultural or athletic activities at a world-class level or has been self-employed in the cultural or athletic activities. The applicant is further assessed against five selection factors (experience, education, age, language ability, and adaptability) that form part of a 100-point grid. The current pass mark is 35 points. Current processing times are 35 months.

³ The NOC is developed by ESDC in partnership with Statistics Canada and is Canada’s national system for describing occupations. For the complete matrix, go to https://noc.esdc.gc.ca/Structure/Matrix/000e9b8170d945b7a7b6e0ecd4625357
⁴ For the CRS Criteria under Express Entry, go to https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/criteria-comprehensive-ranking-system/grid.html

Both the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP) enable Canadian employers to hire foreign workers. Participating employers leveraging either program face a myriad of compliance-related obligations for employing foreign nationals on Canadian soil and must abide by the terms set out in an Offer of Employment submitted through an Employer Portal account with IRCC or in an approved Labour Market Impact Assessment (LMIA).

The cornerstone of upholding immigration compliance in Canada is employer compliance inspections which serve to protect temporary foreign workers from abuse and exploitation and to protect the integrity of the Canadian labour market. An employer may be inspected at any time within six years of a work permit being issued, including any mandatory isolation or quarantine period.

There are three ways an employer can be selected for inspection:

• there is a reason to suspect non-compliance
• previous history of non-compliance
• random selection
• a worker is or was subject to an order or rule under the Emergencies Act or the Quarantine Act
• a communicable disease is found at a worksite

Inspections can occur on-site or virtually at any time during a period of six years beginning on the first day of a foreign worker’s employment. For new employers, inspections can only occur once the foreign worker has arrived in Canada and a work permit has been issued. During an inspection, employers are required to submit documents to demonstrate their compliance with program conditions.

Generally, both TFWP and IMP employers are required to:

• remain actively engaged in the business in respect of which the offer of employment was made
• make reasonable efforts to provide a workplace that is free of abuse, including physical, sexual, psychological, or financial abuse.
• comply will all applicable federal and provincial laws that regulate employment, including the recruitment of employees in the province that the foreign national works
• provide the foreign worker with employment in the same occupation as set out in the offer of employment and with wages and working conditions that are substantially the same as, but not less favourable than, those set out in that offer
• retain all relevant records that demonstrate compliance for a period of six years
• inform authorities of any changes in TFW conditions, unless exempt

TFWP specific obligations

As discussed, the TFWP is concentrated around the Canadian labour market and ensuring that the approval to fill the position with a temporary foreign worker results in a positive or neutral impact on the Canadian labour market. Consequently, employers that applied for and obtained a positive LMIA application must:

• retain all documents used to support the application for a minimum of six years beginning on the foreign worker’s first day of work;
• fulfill the commitments made in the LMIA application, decision, and Annex, as agreed, such as:
  • create or retain jobs for Canadians
  • hire or train Canadians
  • develop skills and knowledge for the benefit of Canadians
  • transfer skills and knowledge to Canadians
• demonstrate efforts to hire and/or train Canadians or permanent residents if this was mentioned in the initial LMIA application;
• verify and validate that the information provided in the LMIA application is accurate;
• provide adequate housing, if applicable; and
• review and adjust (if necessary) the foreign worker’s wage after 12 months of employment to ensure the worker continues to receive the prevailing wage rate of the occupation and work location where the foreign worker is employed.

Transition Plan for high-wage temporary foreign workers

If employers are applying for a LMIA for a high wage position, they must also prepare and submit a well-thought-out and clear transition plan, unless exempt, to demarcate various commitments to reduce reliance on foreign workers and transition to a Canadian workforce over time. The Transition Plan requirement asks the employer to provide either:

• three distinct activities to recruit, retain, or train Canadians and one additional activity to target underrepresented groups; or
• one activity to facilitate the permanent residence of the foreign worker

The contents of the Transition Plan are subject to verification should the employer submit future LMIA applications for the same occupation in the same location or upon inspection to verify compliance. An employer must therefore always be able to furnish proof that it has conducted the activities it specifically agreed to.

Labour Market Benefit Plan under the Global Talent Stream

The Global Talent Stream is a specialized and prolific LMIA under the TFWP that provides employers with priority access to the highest specialized and skilled global talent and in-demand STEM occupations. Employers benefit from this stream because there is no requirement to test the Canadian labour market prior to submitting the application, as is required under the regular LMIA process. Similar to the Transition Plan, employers that apply to hire foreign workers under the GTS must submit a Labour Market Benefit Plan (LMBP) that details the employer’s commitment to create activities that will positively impact the labour market through the creation of jobs, skills investments and training for the benefit of Canadians. The commitments made in the LMBP are divided into mandatory and complementary benefits and must be dissimilar. Complementary benefits may also include enhanced company performance or implementing best practices or policies for the Canadian workforce. Commitments to increase diversity in the workplace are encouraged.

By using the GTS, employers agree to monitor and track the benefits and activities that they have committed to. Annual progress reviews with the ESDC LMBP Review Team are required to evaluate the company’s performance against the commitments made. The annual progress review is separate and apart from all compliance-related requirements that exist generally in law and under the TFWP. In the event an employer fails to make “reasonable efforts” to satisfy its LMBP commitments within the timeframe, the employer will receive a negative decision on future applications to the GTS for a period of two years. Like regular LMIAs under the TFWP, GTS employers must retain all documents to satisfy the “reasonable efforts” standard of review.

COVID-19

Since the beginning of the pandemic, Orders in Council made pursuant to the Emergencies Act and the Quarantine Act have required most foreign workers to self-isolate for at least 14 days upon arrival in Canada. Employers must not do anything to prevent the foreign worker from complying with these orders, as well as provincial laws that regulate public health in response to COVID-19. Further, employers are obliged to pay the foreign worker regular pay and benefits (minimum 30 hours per week) at the hourly rate of pay specified on the LMIA or Offer of Employment for any period that they are in mandatory isolation or quarantine upon entry to Canada even if the worker is unable to perform any duties of employment.

Penalties of up to $750,000 can be levied against a foreign worker for any non-compliance with Emergency Orders made under the Quarantine Act.

Applications can either be applied for electronically or by paper. Temporary status documents, including work permits, are issued and printed on paper at a port of entry or through an inland Case Processing Centre. At the time of writing, temporary status documents are not electronic.

Since the coronavirus pandemic, IRCC digitized citizenship tests and moved citizenship ceremonies online. IRCC’s Confirmation of Permanent Residence process was also transferred online, eliminating the former in-person interview procedure.

In early 2021, IRCC further launched an online permanent residence application portal for select “non-Express Entry” applications with plans to integrate and phase more paper-based programs over time.

While IRCC has the discretionary authority to convoke an interview for any type of application to enter or remain in Canada, most visa and work permit applications are decided in writing or in person following an examination at the port of entry.

Biometrics

The collection of biometrics, including fingerprints and photographs, is mandatory for all foreign nationals between the ages of 14 and 79 who are applying for temporary or permanent residence, unless exempt. A biometric fee must be paid at the time an application is submitted and biometrics must be provided before the application is processed. They are only required once every 10 years.

Biometrics are not required for:

• US nationals that are applying for work or study permit, or a temporary resident permit;
• diplomats and officials traveling on official business;
• US visa holders transiting through Canada;
• refugee claimants or protected persons that have already provided biometrics and are applying for a study or work permit; and
• temporary resident applicants who have a valid biometric enrolment on file.

A foreign worker may be accompanied in Canada by a spouse or common-law partner and dependent children. Family members that are not included as dependents in this instance are parents, grandparents, siblings, and other relatives.

Both opposite and same-sex spouses and common-law partners are included in Canadian immigration law. Common-law partners are defined as those that have been living in a conjugal relationship for a period of at least one year. Under the IMP’s public policy provisions, spouses, or common-law partners of skilled foreign workers in Canada can apply for and obtain an open work permit without first having an offer of employment in Canada. This public policy does not extend to working age dependent children.

Children, biological and adopted, qualify as dependants if they are under 22 years of age and do not have a spouse or partner. Children aged 22 or older also qualify as dependants if they have depended on their parents for financial support since before they were 22 and cannot financially support themselves because of a mental or physical condition.

Minor dependent children of a parent that possesses a skilled temporary work or study permit are authorized to attend preschool, primary, or secondary school without a study permit. Age of majority dependent children, while still considered a dependent under Canadian immigration law, must apply for a study permits on their own merit and satisfy the eligibility requirements at the post-secondary education levels. Working age dependent children must similarly apply for and obtain a work permit on their own merit.

See question 3 for unsponsored immigration, Express Entry, and question 1 for federal, provincial, and territorial shared jurisdiction process for immigration in Canada.

Citizenship

Generally, for those wanting to obtain Canadian citizenship by naturalization, foreign nationals must first apply for and obtain permanent resident status in Canada. To be eligible to apply for a citizenship grant, the individual must be a permanent resident that has physically resided in Canada for three out of the last five years preceding the date of the citizenship application. Time spent in temporary status (i.e. work permit) can also be counted as one half day, up to a maximum of 365 days. This means that an individual that worked in Canada on a temporary work permit for at least two years, who subsequently acquired permanent resident status, can generally qualify to apply for citizenship two years after becoming a permanent resident of Canada, assuming the individual has not left Canada during the timeframe. Individuals must have also filed taxes with Canada Revenue Agency, pass a citizenship test, and demonstrate language skills. General processing times for a citizenship grant are currently 12 months.

The current average processing times for permanent residence applications are:

LMIA for permanent residence

In addition to LMIAs for temporary work permit purposes, employers can equally apply for an LMIA for permanent higher-skilled positions to support an individual’s permanent residence application. Having an LMIA will improve a candidate’s rank in the Express Entry pool by providing an additional 50 to 200 points, thereby increasing the chance of being invited to apply for permanent residence.

Employment-based permanent residence (primary)

Canadian Experience Class

This category is one of three federal programs that are managed through Express Entry. To be eligible to apply under this category, foreign nationals must satisfy the following eligibility requirements:

• at least one year of skilled work experience (NOC skill level 0, A, or B), or part-time equivalent, in Canada in the last three years preceding the date of application;
• work experience in Canada was gained while working under lawful temporary resident status (i.e. work permit);
• minimum language proficiency in all four abilities (reading, writing, speaking, listening); and
• plan to live outside the province of Quebec.

Federal Skilled Trades Program
This category is one of three federal programs that are managed through Express Entry. A job offer is not required; however, a foreign national candidate can increase his or her rank profile in the Express Entry pool by having one. To be eligible to apply under this program, foreign nationals must:

• meet minimum language proficiency in all four abilities (reading, writing, speaking, listening);
• have at least two years of full-time paid work experience in a skilled trade, as designated by IRCC, in the last five years preceding the date of application;
• have a valid job offer for at least one year of full-time employment or have a certificate of qualification issued by a provincial, territorial, or federal authority, as applicable to the trade regulatory body in Canada;
• satisfy the job requirements and duties for that skilled trade in the NOC;
• show proof of sufficient funds to settle in Canada, unless exempt; and
• plan to live outside the province of Quebec.

A business visitor is essentially a foreign national that seeks to engage in international business activities in Canada, without directly entering the labour market. Therefore, to be eligible to enter Canada as a business visitor, a foreign national’s source of remuneration must be outside of Canada, together with the principal place of business and accrual of profits.

All business visitors must undergo examination either at a port-of-entry or a consular visa office, if applying for a temporary resident visa.

Permissible activities generally include:

• attending business meetings, such as to discuss operations at an international level;
• attending meetings as a member of a board of directors
• participating in intra-company training
• supervising the installation of specialized machinery purchased or leased outside Canada;
• observing and gathering information regarding site operations.
• buying Canadian goods or services for a foreign business or government;
• taking orders for goods or services;
• attending meetings, conferences, conventions, or trade fairs; and
• attending training by a Canadian company that has sold you equipment or services.

Global Skills Strategy – Short term work

Under Canada’s Global Skills Strategy and based on public policy considerations, highly skilled foreign nationals seeking to work in Canada for short periods of time are permitted to do so without the need to apply for work authorization. This work permit exemption can be granted under the following parameters:

• work to be performed is in an occupation listed in skill type 0 (management) or A in the National Occupational Classification (NOC)
• the exemption is granted for 15 consecutive days if the foreign national was not granted an exemption in the last six months
• the exemption is granted for 30 consecutive days if the foreign national was not granted an exemption in the last 12 months

This policy also extends to highly specialized foreign researchers coming to produce world class research for a period of up to 120 consecutive days, after having received an offer from a publicly funded Canadian degree granting institution or its affiliate research institution.

“Work” is defined under the Immigration and Refugee Protection Regulations as “an activity for which wages are paid or commissions earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.”

Typically, a foreign national requires a work permit to undertake “work” however certain activities, such as long distance work (by telephone or internet) by a temporary resident whose employer is outside of Canada and who is remunerated from outside Canada, do not require work authorization.

If remote work is generally incidental to the reason that a foreign national seeks entry to Canada, and the work does not compete directly with Canadians in the Canadian labour market, remote work is permissible. The foreign national must not be supporting any operation, function, or project in Canada. If the primary purpose is to enter Canada for full-time remote work for an extended period, authorization to work remotely should be sought from immigration authorities.

At the time of writing, Canada does not have a program that allows foreign workers to live and work remotely. Remote work or nomad visa categories have not come into fruition.

It is legally permissible for a foreign national to apply to change the conditions of their temporary stay from within Canada, including for a change in employer, as long as the general terms and conditions of their stay have generally been respected and maintained. Working or studying without authorization, for example, could result in enforcement action and would prohibit the issuance of a new work permit.

As there is no legal onus on an individual or an employer to cancel a work permit should employment cease, a temporary foreign worker is permitted to lawfully remain in Canada for the validity period of the work permit, despite the preceding date of their layoff or termination. The work permit, although still valid, may not be used to engage in employment with any other employer. The foreign national must first apply for and obtain the new work permit before employment can commence.

As a COVID-19 measure, a temporary public policy was introduced to allow temporary foreign workers in Canada to change jobs before a final decision is made on a new work permit application. Employers hiring these foreign workers can receive priority processing of

In the event that new employment with a new employer is not forthcoming before the work permit expires, it is possible to apply to change temporary status from worker to student or visitor as long as there are sufficient funds to support the individual’s stay in Canada and the individual continues to demonstrate that they will leave Canada at the end of the period authorized for their stay. Depending on the nationality of the individual, it may not be possible to change temporary status from visitor back to a worker without departing Canada. During the COVID-19 pandemic, another temporary public policy was issued to allow visitors to apply for a work permit without having to leave Canada and this temporary measure remains in effect until August 31, 2021.

See questions 16 and 19 regarding employer immigration compliance.

Generally, there is no certification process or trusted employer status that can be applied for and obtained by Canadian employers who wish to hire temporary foreign workers through either the IMP or the TFWP.

Canada’s Global Skills Strategy (GSS), however, enables priority and fast track processing for employers wanting to hire unique and specialized global talent to scale up and grow the business in Canada (Category A), as well as highly skilled individuals for in-demand occupations (Category B). At the time of writing, the list currently includes 12 occupations in Science, Technology, Engineering, and Mathematics. Under GSS, ESDC commits to processing LMIAs submitted in 10 business days 80 percent of the time. In addition, IRCC commits to processing work permits for highly skilled workers within two weeks or less 80 percent of the time. Open work permits for spouses and study permits for children are also processed in two weeks’ time, when applicable.

In Budget 2021: A Recovery Plan for Jobs, Growth, and Resilience5 the Government of Canada recognized that attracting immigrants is an important part of Canada’s recovery from the COVID-19 pandemic and Canada’s long-term prosperity and growth. Budget 2021 commits to:

• support racialized newcomer women
• enhance the Temporary Foreign Worker Program
• accelerate pathways to permanent residence
• streamline Express Entry, and
• improve IRCC’s service standards

Underpinning these commitments is a plan for IRCC to speed up the processing of immigration applications by developing and delivering an enterprise-wide digital platform that would gradually replace the legacy Global Case Management System (GCMS)

Temporary Resident to Permanent Resident Pathway
To support its 401,000 new immigrant targets for 2021,6 IRCC launched a new temporary to permanent residence pathway for up to 90,000 essential workers and international graduates already in Canada. The program application period is open until November 5, 2021 or until the cap is reached. Six streams exist under the program, each with its own cap on the number of applications as follows:

It is important to note that all Express Entry draws made in 2021 have been restricted to candidates in the Canadian Experience Class or those with Provincial nominations, targeting foreign nationals who are already in Canada. Together, these trends indicate a preference for candidates that are not subject to COVID-related travel restrictions and to protect the health and safety of Canadians.

⁵Retrieved from: https://www.budget.gc.ca/2021/home-accueil-en.html
⁶“Notice – Supplementary Information for the 2021-2023 Immigration Levels Plan”. Government of Canada. Accessed August 15, 2021, from https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2021-2023.html

Further to Budget 2021, as initially referenced in question 15, the Government of Canada has recently proposed to amend the Immigration and Refugee Protection Regulations to enhance requirements for employers seeking to hire Temporary Foreign Workers under the Temporary Foreign Worker Program (TFWP) and International Mobility Program (IMP).  The proposed amendments aim to better protect foreign workers by improving the ability to hold employers accountable for non-compliance. Under the proposed regulations, employers must:

• provide the most up to date information to foreign workers about their rights in Canada
• sign and retain a signed employment agreement with the foreign worker
• provide access to health care services when the worker gets injured or becomes ill at the workplace.
• obtain and pay for private health insurance that covers the fees of emergency medical care for foreign workers, if not already covered
• adhere to an expanded definition of “abuse” to include reprisal against foreign workers

In addition, the Ministers of ESDC and IRCC would be afforded the authority to request documents from third parties, such as banks and payroll companies, to verify employer compliance; reduce the deadline for employers to respond to preliminary findings from 30 to 15 days; and create new LMIA suspension and assessment requirements.

See question 5 for recent technology development in immigration processes.

As mentioned in question 15, Canada is committed to delivering a government-wide digital platform. This suggests using AI, cyber, and cloud to uplift the human experience, transforming service delivery and digitizing both front-end and back-end operations. It is hoped that IRCC will move to an immigrant-centric digital experience in the years ahead.

Canada does not have a formal Right to Work process in place between foreign nationals, employers, and immigration authorities. However, Canadian employers and its foreign workers have a legal obligation to ensure compliance with all terms and conditions of their stay and the respective offers of employment and LMIA’s. To this end, it is recommended that employers review and clear a foreign worker’s IRCC status document prior to employment and monitor and track all terms and conditions of employment during employment to ensure compliance obligations are fulfilled.

Employers of foreign workers in Canada face a myriad of penal, pecuniary, and reputational risks and consequences for immigration non-compliance. See question 4 for additional context.

Under section 91 of the Immigration and Refugee Protection Act, it is illegal for compensated business stakeholders, such as HR professionals or travel agencies, to directly or indirectly represent or advise a person with respect to immigration proceedings, unless the person is a lawyer in good standing with a Canadian province or territory or is a certified by the Immigration Consultants of Canada Regulatory Council as an immigration consultant.

Non-compliant employers and/or associated persons that contravene this federal law are liable on conviction on indictment to a fine of not more than $100,000, or to imprisonment for a term of not more than two years, or to both; or on summary conviction, to a fine of not more than $20,000 or to imprisonment for a term of not more than six months, or to both.

• Compensated business stakeholders, such as HR professionals and travel agencies, may not:
• Complete application forms, such as work permits and visa applications on behalf of foreign workers
• Guide a foreign national on how to select the best method of entry to Canada
• Explain or advise on a foreign national’s immigration options
• Represent a foreign national in an immigration application or proceeding
• Communicate with government officials on a foreign national’s behalf
• Complete and/or submit immigration forms on a foreign national’s behalf.

Under section 124 of the Immigration and Refugee Protection Act, it is illegal for any person to employ a foreign national in a capacity in which the foreign national is not authorized.

Non-compliant employers and/or associated persons that contravene this federal law are liable on conviction on indictment to a fine of not more than $50,000, or to imprisonment for a term of not more than two years, or to both; or on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.

Under section 126 of the Immigration and Refugee Protection Act, it is illegal for any person to assist with misrepresenting or withholding material facts that could induce an error in the administration of the Act. For example, if a business unit manager instructs a foreign national to seek entry to Canada as a tourist knowing that work activities will be performed on a project, the employer may be in contravention of this law.

Under section 127 of the Immigration and Refugee Protection Act, it is illegal to directly or indirectly misrepresent material facts that could induce an error in the Act, or to communicate false or misleading information or declarations with intent to induce or deter immigration to Canada. Non-compliant employers and/or associated persons that contravene these sections under federal law are liable on conviction on indictment to a fine of not more than $100,000, or to imprisonment for a term of not more than five years, or to both; or on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.

Under section 131 of the Immigration and Refugee Protection Act, it is illegal for any person to contravene section 124 by knowingly employing a foreign national in a position while not authorized. This means that the employer is responsible for the actions of its employees. If another person in the organization instructs another person to work in Canada while not specifically authorized, that individual may be personally liable to the same penalties.

Administrative Monetary Penalties (AMPs)

The AMP regime came into force on December 1, 2015 to enhance immigration program integrity by encouraging employer compliance with the TFWP and IMP programs and to protect foreign workers from exploitation and abuse.

An employer may be subject to AMPs, which can be accumulated through a points-based calculation, based on the size of the employer, severity of the violation, and compliance history. The amounts range from $500 to $100,000, with a total amount not to exceed $1M over a one-year period. In addition to fines under the AMP, the number of points that an employer receives may determine the length of a ban from the TFWP and IMP programs (i.e. one, two, five, ten years, or permanent). Work permit revocation from affected foreign nationals is also possible. Finally, the AMP authorizes ESDC to publish the employer’s name, information, and reasons for non-compliance on one or more Government of Canada websites.

Employers are provided with an opportunity to present legal justifications when findings of non-compliance have been made during the inspection. Employers are also permitted to voluntarily disclose non-compliance, in advance of any inspection, to show good faith and potentially benefit from an overall financial penalty reduction.

Generally, there are no formally established quotas or caps on the number of work permits that may be issued in any given period in Canada.

Unless a foreign national is eligible and qualifies for a temporary work permit under the International Mobility Program (IMP), Canadian employers that want to employ a foreign worker must apply for and obtain a Labour Market Impact Assessment (LMIA) from Employment Social Development Canada (ESDC) before the foreign national can apply for a work permit from Immigration Refugees and Citizenship Canada (IRCC).

Unless exempt, ESDC considers a myriad of factors when assessing the employment offer, including an employer’s efforts to hire Canadians or permanent residents for the position. The onus lies on the employer to establish that there were no qualified and suitable Canadians for the role, or that Canadian applicants could not be trained for the position in the short term.

Recruitment and advertising requirements (TFWP)

Prior to applying for a LMIA, employers must advertise the job for a minimum of four consecutive weeks within the three-month period prior to applying for an LMIA, unless exempt. Employers are expected to undertake at least three methods of recruitment efforts to hire Canadians, with the National Job Bank being one of the mandatory methods. The other two methods must be consistent with the occupation, and one of the two must be national in scope. Further, at least one of the three recruitment activities must be ongoing, without a break in continuity, until the date a decision is rendered on the LMIA application. To avoid a refusal, the job advertisements must all include:

• Company operating name
• Business address
• Title of the position
• Duties of employment
• Term of employment
• Language of work
• Wage, including potential bonuses or commissions
• Benefits offered
• Location(s) of work
• Contact information, including telephone number, email address, facsimile number, or mailing address
• Skill requirements, including minimum level of education and work experience

Low-wage positions:
Employers seeking to hire low-wage foreign workers are required to demonstrate that they have made efforts to recruit from at least two under-represented groups7 in the labour market.

Further, employers hiring low-wage foreign workers are subject to a cap on the proportion of foreign workers it can hire at a specific work location. Generally, it is a 10 per cent cap on the number of low-wage foreign workers if the employer did not employ a low-wage foreign worker prior to June 20, 2014. There are a number of exemptions to the cap rule.

⁷The identified under-represented groups are: Persons with disabilities, Indigenous people, Newcomers to Canada, and vulnerable youth.

At the time of writing, there is no legal requirement to cancel a work permit with immigration authorities when employment ends. Similarly, there are no exit procedures if an individual repatriates or departs Canada permanently.

Medical examination requirements:

Medical examination requirements vary depending on whether a foreign national seeks to enter Canada for a temporary or a permanent basis. A foreign national generally does not need a medical examination if the plan is to stay in the country for six months or less, however a medical examination is always required if the individual plans to work in certain jobs such as jobs that bring them into close contact with people such as:

• workers in health-care settings
• clinical laboratory workers
• patient attendants in nursing and geriatric homes
• medical students admitted to Canada to attend university
• medical electives and physicians on short-term locums
• workers in primary or secondary school settings, or workers in child-care settings
• domestics
• workers who give in-home care to children, the elderly and the disabled
• day nursery employees and
• other similar jobs; and
• agricultural workers that have visited or lived in a designated country for more than six months during the past year.

If the plan is to stay in Canada for longer than six months, a medical examination is required if the individual has resided or sojourned in a medically designated country or territory for at least six months in a row within the year immediately preceding the date of prospective entry to Canada.

In addition, all foreign nationals that have a physical or mental disorder that would require social and/or health services, other than medication, during the proposed stay in Canada are required to disclose this to immigration authorities on their application to enter Canada. Depending on the situation, a medical examination may be required.

For permanent residence, medical examination requirements are mandatory for all foreign nationals and their family members, whether accompanying the principal applicant to Canada or not.

Vaccination

At the time of writing, travel restrictions remain in force across all Canadian border crossings. Generally, non-discretionary travel to Canada is not permitted. For those permitted to enter Canada because of the application of a travel restriction exemption, there is no requirement to furnish proof of COVID-19 vaccinations as a pre-condition to be legally admitted.

On August 9, 2021, the “fully vaccinated traveller exemption” was introduced, permitting fully vaccinated US citizens and US permanent residents to apply for entry to Canada for discretionary reasons. The program is tentatively planned to expand to include all other foreign nationals on or after September 7, 2021. Under this program, a foreign national may qualify for the exemption if they have received the full series of an accepted COVID-19 vaccine and have received the last dose at least 14 days preceding the date of application to enter Canada. Under this exemption, foreign nationals benefit from the exemption to quarantine and from the Day-8 testing requirement.

Accepted COVID-19 vaccines in Canada include:

• Pfizer-BioNTech (Comirnaty, tozinameran, BNT162b2)
• Moderna (mRNA-1273)
• AstraZeneca/COVISHIELD (ChAdOx1-S, Vaxzevria, AZD1222)
• Janssen/Johnson & Johnson (Ad26.COV2.S)

Vaccines not currently accepted for fully vaccinated status in Canada:

• Bharat Biotech (Covaxin, BBV152 A, B, C)
• Cansino (Convidecia, Ad5-nCoV)
• Gamalaya (Sputnik V, Gam-Covid-Vac)
• Sinopharm (BBIBP-CorV, Sinopharm-Wuhan)
• Sinovac (CoronaVac, PiCoVacc)
• Vector Institute (EpiVacCorona)
• Other

The list of accepted vaccines may expand in the future. All proof of vaccinations must be digitally uploaded to Canada’s ArriveCAN app prior to travel and must be translated into English or French by a certified translator.

⁸https://www.canada.ca/en/immigration-refugees-citizenship/services/application/medical-police/medical-exams/requirements-temporary-residents/country-requirements.html

A genuine offer of employment for work to be performed in Canada is generally required to support all work permit applications.

Prior to arriving in Canada, an employment contract should be prepared and signed by the employer and the foreign worker to ensure that all parties are aware of rights and obligations.

It is important to note that proposed amendments to the Immigration and Refugee Protection Regulations require employers to provide workers with a signed copy of the employment contract.

Temporary work permits are typically issued for an initial one to three-year period, with renewals in one to three-year increments, depending on the work permit category.

There are very few limitations or time caps on the length of time a skilled temporary foreign worker can remain working in Canada. There is generally no limit on the number of extensions, if the foreign worker continues to comply with the legal requirements and satisfy immigration authorities that they will leave Canada at the end of the period authorized for their stay.

For intra-company transferees, however, the total period of stay may not exceed five years for specialized knowledge workers and seven years for executives and senior managers. In these cases, a minimum period of one year must pass following the time cap before the foreign national is eligible to apply for a new work permit under these categories.

Canada’s openness to immigration is one of our nation’s greatest competitive advantages and envy of the world. In Budget 2021, the Government of Canada set an ambitious target to admit 1.2 million new residents between 2021 and 2023, which is roughly equivalent to 3% of the population. The Government of Canada has further committed to strengthening the immigration system and has pledged to create “an immigration system that is easier to navigate and more efficient in welcoming the dynamic new Canadians who add to Canada’s strengths. ”

By recently opening the door to permanent residence for up to 90,000 international graduates and temporary workers with a one-time program, together with the largest draws in history under Express Entry for Provincial Nominees and Canadian Experience Class candidates. As a result of the Government of Canada’s Budget 2021, investments, we have the greatest opportunity to attract and retain global talent and meet all our humanitarian objectives.

⁵Freeland, Chrystia (April 2021). “Budget 2021 Address.” Accessed August 15, 2021 from https://www.canada.ca/en/department-finance/news/2021/04/budget-2021-address-by-the-deputy-prime-minister-and-minister-of-finance.html