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Employer immigration compliance obligations

Kathleen Leighton

Employers in Canada are obligated to only employ individuals who are legally able to work for them. Individuals who are neither citizens nor permanent residents of Canada, but who wish to work in Canada (“foreign workers”), generally must obtain a work permit.

While some work permits are “open”, meaning they will allow the permit holder to work for nearly any employer and in nearly any role, other work permits are more restrictive. Namely, “employer-specific” work permits limit the permit holder to working for the employer named on the permit, as well as in the position and location specified on the permit. These permits are therefore also less flexible in terms of the permit holder’s ability to move roles or employers.

In order for a foreign national to obtain an employer-specific work permit, it is necessary for employers to take certain active steps to assist, as discussed below.

Relevant programs

There are two main programs through which an individual can obtain an employer-specific work permit:

  1. The Temporary Foreign Worker Program (“TFWP”): The TFWP enables employers to hire foreign nationals to address labour and skill shortages in their business if they are unable to locate suitably skilled and available Canadian citizens or permanent residents.The employer must apply to Employment and Social Development Canada (“ESDC”) / Service Canada for a Labour Market Impact Assessment (“LMIA”). If a positive LMIA is granted to the employer, the foreign national that the employer wishes to hire can use the LMIA to apply for a work permit.

 

  1. The International Mobility Program (“IMP”): The IMP provides opportunities for employers to hire foreign nationals without an LMIA, as certain workers are considered exempt from the LMIA process. There are a number of categories of LMIA-exempt work permits under the IMP, and the majority of them lead to an employer-specific work permit.While an LMIA is not required, the employer must instead prepare and submit an Online Offer of Employment (aka an Employer Compliance Submission) through the Government of Canada’s Employer Portal, and must pay a $230 Compliance Fee, in order to support the foreign national’s application for the employer-specific work permit.

Creation of obligations

By using the TFWP and IMP, employers are agreeing to various conditions, including to remain actively engaged in the business in respect of which the offer of employment was made, make reasonable efforts to provide a work place free of abuse, and comply with relevant employment and recruitment laws, among others.

Additionally, when preparing an LMIA under the TFWP or Employer Compliance Submission under the IMP, the employer is required to outline various conditions of the foreign national’s employment, including details like the individual’s job title, job duties, hours of work, salary or hourly wage, benefits entitlement, location of work, and similar. In providing these details to facilitate a foreign national’s work permit application, the employer is creating obligations to ESDC or Immigration, Refugees and Citizenship Canada (“IRCC”) respectively to honour those conditions.

Employer compliance

Both ESDC and IRCC have the authority to review the activities of any employer using their programs, including by conducting audits or inspections, in order to ensure the employer is complying with their obligations.

For example, these entities may wish to confirm if an employer is in fact providing the foreign national with the salary indicated in an LMIA or providing the type of work outlined in an Online Offer of Employment. Findings of non-compliance with the conditions of work as provided can lead to various consequences, including warnings, monetary penalties, a ban from using the TFWP or IMP, and more.

Our Immigration Team is able to advise employers of foreign workers regarding their obligations and provide best practices to avoid non-compliance and the consequences that may follow.


This update is intended for general information only. If you have questions about the above, please contact a member of our Immigration group.

 

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