BDIA

BDIA

Work Permits

Many circumstances may entitle an immigrant to a temporary work permit in Canada, but many of those apply to immigrants that are already in Canada, usually people that are destitute and cannot be sent back to their country. It would be the case for people that cannot be deported yet, that ask for political asylum, or ask to stay in the country based on humanitarian grounds, or people that get special permits to remain in Canada.

Three, indeed two types of permits will be of interest for most people abroad. The third kind is more exceptional. It applies to people from the US or from countries that Canada has a special agreement with in terms of labour mobility.

Permits that require a validated job offer (a LMIA) from a Canadian employer (“203” Permits)

An application for the first kind of work permit – the most frequent –  is essentially a 2 part process. It requires that (1) the immigrant finds a Canadian employer willing to give him a job that the Canadian government – and Quebec government if the job is in this province-  has agreed no Canadian can do, and (2) the immigrants convinces the immigration officer at the embassy that he can do the job and will not overstay in Canada. The essential aspects of this obligation are at Regulation 203 (1) (b) and (3)

Assessment of employment offered

  • 203(1)On application (…) for a work permit made by a foreign national (…) an officer must determine, on the basis of an assessment provided by the Department of Employment and Social Development, of any information provided on the officer’s request by the employer making the offer and of any other relevant information, if
  • (…)
    • (b) the employment of the foreign national is likely to have a neutral or positive effect on the labor market in Canada;

Factors — effect on labor market

(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:

  • (a)whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
  • (b)whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
  • (c)whether the employment of the foreign national is likely to fill a labor shortage;
  • (d)whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;
  • (e)whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reasonable efforts to do so;
  • (f)whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute; and
  • (g)whether the employer has fulfilled or has made reasonable efforts to fulfill any commitments made, in the context of any assessment that was previously provided under subsection (2), with respect to the matters referred to in paragraphs (a), (b) and (e).

To satisfy the Canadian government that he cannot find someone to do this kind of work in Canada, the Canadian employer must put up a job offer in the media for at least 4 weeks and collect the C.V.s from the people that have applied. He must then explain  why they are not suitable and why the immigrant is. He must then send all of that, with all application forms, and, for now, a fee of $ 1,000, to the government for an approval.

Law firms like ours fill out those forms and collect all that is needed. But everybody can do that, so we obviously do more. We do our best not only to do what needs to be done right, but more so to maximize the chances that what is asked for is obtained. To do this, we usually submit to the government much more information and evidence than what is asked for. This additional information and evidence is filed to hopefully explain better the actual need of the employer for the foreign worker, and alert the government officer to what the law actually is. Sometimes, Administrations like governments “depart” somewhat from the actual law in order to go faster or save money. So, law firms sometimes have to remind deciders of what the law is, including how the courts have interpreted issues that apply.

If the officer is satisfied, he sends what is called an LMIA for Letter of Market Impact Assessment; (an EIMT in French for Étude d’ Impact sur le Marché du Travail) to the Canadian employer.

Next is part 2, the part that applies to the immigrant.

The Canadian employer will send the LMIA to the immigrant abroad. The immigrant will then make an application for a work permit with the Canadian Embassy for his country. We do all of that paperwork for him but also have the same agenda as for the LMIA for his employer. We do our best to cover for the week links, and maximize chances to satisfy the officer.

Two issues need particular care

First, the immigrant’s must satisfy the immigration officer at the embassy that he has the training, whether education or experience, to do the job that is offered to him by the Canadian employer.

Then, if the immigrant comes from a country whose nationals Canada is afraid will stay after their permit, he will have to satisfy the immigration officer that he will not do that. This requirement is at Regulation 179 (b):

Delivery

179 An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national

  • (a)has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
  • (b)will leave Canada by the end of the period authorized for their stay under Division 2;

This is a major problem for immigrants from most countries. It has been the basis of refusals in numerous cases and is therefore an area where we have had important experience in courts. This has allowed us to develop strategies to increase the client’s chances to satisfy the immigration officer of his honesty when he states, at his application form, the dates he wants in and out of Canada

A case we pleaded in Federal Court where one of our strategies is referred to is the Cao decision of 2010 .

Should the application be refused, we can fight the refusal in the Federal Court. Obviously, things are much easier when we go to court with a strong case; one that was built properly.

Permits for work that carries “significant benefits” for Canada (“205” Permits)

The second type of work permits of interest to most folks outside of Canada are those that carry significant benefits for Canada. Those benefits can be economic, social or cultural. We sometimes call them “205 permits” because they go under section 205 of the Regulations:

Canadian interests

205 A work permit may be issued under section 200 to a foreign national who intends to perform work that

(a) would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents;

(b) would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries;

(c) is designated by the Minister as being work that can be performed by a foreign national on the basis of the following criteria, namely,

(i) the work is related to a research program,

(…)

 (d) is of a religious or charitable nature.

The beauty of this kind of permit is that they do not require that the immigrant finds a Canadian employer who is willing to offer him a job, pay the fee, and go through the LMIA process. It does not require either that the authorities from the Province of Quebec give their authorization in the form of a CAQ (Certificat d’Acceptation du Québec) if the immigrant wishes to come work in that province.

What those permits require is that the immigrant himself satisfy the Canadian government that his project for Canada is good enough for the country, culturally, socially or, most likely, economically, to justify that he be issued a work permit to be allowed to come to carry it out.

An example of this is someone who has a great idea and wants to put it to the market in Canada. Another example would be someone who purchases, now, a business in Canada, and demonstrates to the Canadian government that he needs to come to the country now in order to manage this new business. The government will be satisfied if, for example, the immigrant’s project means that a business in danger of closing will survive if it is purchased by the immigrant. This carries important economic benefits because it means that the employees of the business will not lose their job, and the business will hopefully continues to be profitable and pay taxes.

There are many small businesses in Canada that are profitable, but that are operated by businessmen who want to retire and whose children have become doctors, lawyers, or other kinds of professionals and are not interested to carry on the business. Those businessmen often try to sell their business. What our firm can do is get from the immigrant a picture of his financial capacity and his domain of experience, and look for a business in Canada that would be suitable for him to invest in and operate. The immigrant may also buy a franchise, or only wish to invest in – and not necessarily buy- a Canadian business and be here to help with its management.

Unfortunately, even if the immigrant has an interesting business project, he will still face the problems of satisfying the immigration officer at the embassy that he will return to his country when his authorized period of stay in Canada expires. So, our expertise on this can help.

If the immigrant’s project is in the province of Quebec, this kind of “205” temporary permit can make him eligible to apply for a permanent immigrant visa in the Entrepreneur category. Having already purchased a business, or being involved in one makes it easier to be accepted in this category than if his application is based on a future project, provided, of course, that he beats the quotas. His business project will already exist in Quebec. Like they say in parts of Honduras, it is much easier to prove what exists than what does not.