Temporary Foreign Worker Program: LMIA-based work permits
An LMIA is a labour market verification test whereby Employment and Social Development Canada (ESDC) will analyse an offer of employment made to a foreign national to ensure that the employment of the foreign worker will not negatively impact the Canadian labour market. Unless they qualify for variations to minimum advertising, Canadian employers are required to ‘test’ the labour market by undergoing or conducting minimum advertising and recruitment efforts before making the LMIA application.
In assessing an LMIA application, ESDC will review the following:
- does the salary offered meet the local prevailing wage for the position?;
- are the working conditions consistent with Canadian labour and employment laws and relevant collective bargaining agreements?;
- is there a labour shortage for that occupation in the local area?;
- are there labour disputes in the particular company and industry?;
- has the employer sufficiently recruited but been unable to find a Canadian to fill the position?;
- will the foreign worker transfer unique skills or expertise to Canadian citizens or permanent residents?; and
- will the hiring of a temporary foreign worker displace or negatively affect the employment of Canadian citizens or permanent residents?
If granted, a temporary LMIA is used by the employer to hire a foreign worker for a finite period. Upon approval of an LMIA, the foreign worker must submit a work permit application to obtain a work permit.
International Mobility Program: LMIA-exempt work permits
There are some work permit categories that do not require a company to go through the LMIA process. These exceptions fall under Canada’s International Mobility Program and can result in both open and employer-specific work permits. Below are the most commonly used exceptions for business immigration.
Intra-company transfer (C12, T24)
The criteria below must be met to apply under the intra-company transfer category either as a specialised knowledge worker or as an executive, senior manager or functional manager:
- there must be a qualifying relationship between the foreign national’s home employer (outside Canada) and the prospective Canadian employer (ie, affiliate, parent, subsidiary or branch in Canada), both of which must maintain continuous and active operations;
- the employee must be currently employed by the home employer in a specialised knowledge, senior managerial or executive capacity and have worked in that capacity full-time for at least one continuous year during the three years immediately preceding the date of the work permit application;
- the foreign worker must be entering Canada for a temporary period to occupy a similar position with the Canadian entity; and
- the Canadian entity must control the foreign worker’s day-to-day activities while in Canada.
The above criteria applies to all intra-company transferees applying under the general provisions of the IRPR. Certain criteria may be relaxed or different if applying under the intra-company provisions of an international agreement to which Canada is party.
Specialised knowledge workers
Immigration officers apply a rigorous test in determining whether a foreign national’s knowledge is in fact specialised such that he or she may qualify as an intra-company transferee. The test focuses on the applicant’s degree of proprietary knowledge and his or her advanced expertise within the company and industry. Specialised knowledge workers generally possess:
- abilities that are unusual compared to those generally found in the industry, and that cannot be easily transferred;
- knowledge or expertise that is highly unusual both within the industry and host firm;
- proprietary knowledge that is critical to the Canadian company, without which there would be a significant disruption to the company’s operations or business;
- a clear employment relationship, with intra-company transferees under the direct and continuous supervision of the host company; and
- experience and knowledge that does not require training at the host company related to the area of expertise.
Specialised knowledge is unique and uncommon, held by only a small number or small percentage of employees within a company. The onus is on the participating entities and the foreign national to demonstrate that they are key personnel, not simply highly skilled. The salary of the specialised knowledge worker must be commensurate with the prevailing wage set by Employment, Workforce Development and Labour for the intended specialist position in the intended work location in Canada.
A mandatory wage floor has also been implemented for most specialised knowledge workers, which is expanded upon in question 20.
Executives, senior managers and functional managers
The foreign worker must manage the company or a major component of a department of the company, manage other staff or manage an essential function of the company. The foreign worker may also be a senior executive or manager who manages both the Canadian and home country departments and may need to implement managerial decisions in Canada, despite not residing or working regularly in Canada.
Reciprocal employment: general guidelines (C20)
Foreign workers may take up employment in Canada where Canadians have similar reciprocal opportunities abroad. The underlying policy objective is to permit Canadian employees to gain international experience and to allow for cultural exchanges.
The onus is on the companies and foreign national to demonstrate that reciprocity exists between the Canadian company and the home employer, generally through a written formal policy. Entry under these reciprocal provisions should result in a general neutral labour market impact.
There is no maximum duration associated with this type of work permit; however, reciprocity must be met for each work permit renewal.
Reciprocal employment: International Experience Canada (C21)
International Experience Canada (IEC) manages work permits based on bilateral agreements between Canada and certain countries. The IEC programme may facilitate the entry and work of international youths through a working holiday programme or other streams as per the respective country agreement (such as young professionals, interns or summer students). This programme is generally available to young people aged 18 to 35 (age criteria is dependent on the foreign national’s country of citizenship) who are citizens of one of the countries with a bilateral reciprocal youth mobility agreement with Canada. IEC is designed to allow young people of participating countries to gain international work experience to bring back to their country. Depending on the participating country and applicable IEC category, the eligible applicant may participate in IEC only once or twice.
The IEC work permit application is a two-stage process whereby the foreign national must first create an online profile expressing interest in applying for a work permit under the IEC programme. Based on the candidate’s eligibility, along with the number of applications received (and the quota for work permits issued under the IEC for that country), candidates are selected and issued an invitation to apply (ITA). With an ITA, applicants may then apply for their work permit at a visa post abroad.
Student work permit: co-op or internship programme (C30)
Foreign nationals studying in Canada are authorised to work part-time on the basis of their study permit. However, those seeking to work full-time as part of a co-op or internship programme may apply for a work permit provided the work forms an essential part of an academic, vocational or professional training programme offered by a designated learning institution. To qualify, the student must hold a current valid study permit and the co-op or internship must not form more than 50 per cent of the total programme of study.
Students studying English or French as a second language, or participating in general interest or preparatory courses, will not qualify for this type of work permit.
Student work permit: off-campus work permit (C25)
Full-time students pursuing an academic, professional or vocational training programme of at least six months’ duration at a designated learning institution are eligible to work off-campus without a work permit for up to 20 hours per week during regular academic sessions, and full-time during scheduled breaks.
Student work permit: post-graduation work permit (C43)
This programme allows international students who have graduated from a participating Canadian post-secondary institution to gain Canadian work experience, which may later help them qualify for Canadian PR, through the Canadian Experience Class.
A post-graduation work permit (PGWP) may be issued for the length of the study programme, up to a maximum of three years. Educational programmes must be a minimum of eight months in length to be eligible for this programme.
To be eligible, the student must apply within 180 days of receiving written confirmation from the educational institution of eligibility to graduate and must hold or have held a valid study permit within 180 days of the date of applying for the PGWP.
Significant benefit to Canada: general guidelines (C10)
The foreign national’s contribution and proposed benefit to Canada should be significant and of social, cultural or economic importance. The immigration officer will analyse the proposed benefits, whether the person’s presence in Canada is crucial to a high-profile event, and whether circumstances have created urgency surrounding the person’s entry. Applicants seeking this type of work permit generally require extensive experience in their field.
Work permit issuance under this category is highly discretionary and will only be granted where benefits to Canada are clear and compelling. Extensions under this category are rarely granted.
International treaty: professional work permits (T23)
The foreign national must be a citizen of a country that is a signatory to the international treaty agreement forming the basis for applying under this category. The foreign national must work as a professional and must satisfy several prescribed eligibility criteria associated with the specific profession (ie, possess requisite minimum educational credentials associated with the intended profession), in accordance with the respective treaty or free trade agreement. In some cases, it may be possible to substitute extensive work experience in lieu of formal educational credentials.
Mobilité Francophone (C16)
The intent of the Mobilité Francophone work permit category is to allow Canada to attract skilled francophone workers to provinces other than Quebec. Under this stream, employers seeking to employ French-speaking foreign nationals in managerial, professional and technical or skilled trade occupations under the NOC skill levels A, B or 0, are not required to seek an LMIA. Recruitment of the foreign national through a francophone immigration promotional event coordinated between the federal government and francophone-minority communities is encouraged, but not mandatory. The officer must further be satisfied that the applicant’s habitual language of daily use is French. Where the officer is not satisfied that this is the case, either an interview or language test results demonstrating an advanced intermediate level or above in French (eg, Canadian Language Benchmark (CLB) of level 7 or higher in the Test d’évaluation de français) may be required.
All work permit applications under this category may be processed by a Canadian visa post outside Canada. Once IRCC approves the work permit application, the applicant will receive a port of entry letter of introduction that may be presented at the border for the issuance of a work permit document.
Dependent work permit: spouse or common-law partner or child
These types of work permits are discussed in question 33.
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