Part One—Do I Need a Work Permit?
One of the most common issues I deal with in my immigration practice is helping employers bring skilled workers to Canada. I am often approached once an employer has recruited for a position and found the perfect fit in someone who is a citizen of another country. “What now?” they ask.
First, asking that question is important anytime an employer intends to hire someone who is not Canadian or a Canadian permanent resident. The consequences for employing a person illegally in Canada are severe.
If an employer does not exercise due diligence to determine an employee is authorized to work in Canada, and it is found that they employee has been employed illegally, the employer could be fined up to $100,000 and sentenced to up to five years in prison.
Therefore, it is very important that employers hoping to hire foreign workers take necessary steps to ensure their employees are authorized to work in Canada. I recommend talking to an immigration lawyer to as soon as possible to ensure you are meeting your obligations.
When an employer comes to me in these situations, I go through the following steps:
STEP 1:
Determine whether the foreign worker requires a work permit;
STEP 2:
If a work permit is required, does the employer require a Labour Market Impact Assessment (LMIA)? If the answer is yes, go to step 3. If the answer is no, go directly to step 4;
STEP 3:
Determine how to obtain an LMIA; and
STEP 4:
Determine how best to obtain a work permit.
For this blog post, I will focus on Step 1. Does the foreign worker require a work permit?
A Work Permit is Required for Work in Canada
Generally speaking, any person who is neither a Canadian permanent resident nor a Canadian citizen is required to obtain a work permit in order to perform any “work” in Canada.
The word “work” is defined very broadly in the Immigration and Refugee Protection Regulations and encompasses “any activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market”. This can include unpaid internships and volunteer work.
Therefore, unless a foreign worker falls into one of the narrow exceptions set out below, they require a work permit to work legally in Canada.
Foreign Workers already Working in Canada
Sometimes, an employer may wish to hire a foreign worker who is already working in Canada on a valid work permit. In these circumstances, is the worker simply able to switch employers or locations?
The answer is maybe. Work permits often include restrictions. They will state the dates on which they are valid, and they may state where the worker is authorized to work (location, employer), whether they are authorized to work in health care or with children, whether they are authorized to study, etc. The worker must adhere to those restrictions.
If, for example, the work permit states that the worker is authorized to work for Company A in Halifax, Nova Scotia, that employee cannot simply move to Company A in Kingston, Ontario. Nor can they move to Company B. In these circumstances, the foreign worker must obtain a new work permit to work for the new employer or at the new location. Such an application can be made while the worker is in Canada.
Some work permits are “open” and do not state any restrictions as to location or place of work. In the case of these work permits, the foreign employee may be able to work anywhere and for any company in Canada as long as the work permit is valid.
In order to determine whether the foreign worker must obtain a new work permit, one must examine the current work permit and determine the possible restrictions if any. Before making any determinations, I strongly recommend contacting an immigration lawyer in your area to obtain a legal opinion on the necessity of a new work permit.
When a Work Permit is Not Required
There are some circumstances in which a foreign person working in Canada does not require a work permit. The exceptions are set out in section 186 of the Immigration and Refugee Protection Act. Exceptions include diplomats and their family members, visiting members of the armed forces, performing artists, guest speakers, athletes, clergy and other specific professions set out in the Act.
One exception I am often asked about is off-campus work for foreign students. Foreign students enrolled in full-time studies in Canada at designated post-secondary institutions (with a valid study permit) are allowed to work off-campus without a work permit no more than 20 hours per week during academic sessions and full-time during scheduled school breaks. These students are allowed to continue to work after their academic program ends as long as they apply for a post-graduate work permit before their study permit expires.
Another exception I am often asked about is the exception for “business visitors”. Pursuant to IRPA, “business visitors” are people visiting Canada for the sole purpose of meeting with people or companies doing business with their country or foreign business, to observe site visits, to train a Canadian company in product use, sales or other business transaction functions. Analysis of this exception requires a detailed look at all of the circumstances. I recommend seeing an immigration lawyer to determine if the foreign worker in question falls into any of these exceptions.
Entering Canada when a Work Permit is not Required
If it is determined that the worker falls into one of the exceptions set out in the Act and does not require a work permit, they still must legally enter Canada. This means that they may require a visitor visa or electronic travel authorization (ETA), and they must not be inadmissible to enter Canada.
Someone may be found inadmissible to enter Canada if they have been convicted of a crime(s) in Canada or outside Canada, or if they have health concerns that would out an unreasonable burden on the Canadian health care system. In such cases, the person may be turned away at the border.
To determine if a person requires a visitor visa or ETA, they can complete this evaluation on the IRCC website: http://www.cic.gc.ca/english/visit/visas.asp.
Once the worker has obtained the visa or ETA, if necessary, and it is determined that there will be no concerns regarding inadmissibility, the worker will still have to prove to border officers that they do not require a work permit. To do so, they must show proof that they meet one of the exceptions set out in the Act. An immigration lawyer can help you to prepare a package of information to present at the border.
What to do if a Work Permit is Required
If the worker does require a work permit, the next step is to determine whether a Labour Market Impact Assessment (LMIA) is required. This will be the subject of my next blog post, Work Permits, LMIAs and ETAs, Oh My! Part 2: LMIAs.
Disclaimer: This blog post is intended to provide general information only. The law is constantly changing and requires nuanced analysis. Therefore, nothing in this blog post should be considered legal advice or opinion. In order to obtain a legal opinion or advice on a business matter, make an appointment to speak with a business lawyer in your area.