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What steps must employers take to hire a foreign worker?

Kathleen Leighton

Employers often wonder what steps they need to take to hire international talent, including what support they must provide to enable a foreign worker to obtain proper work authorization in Canada. This is an important question for employers, as it is an offence to employ a foreign national in a capacity in which they are not authorized to be employed. The required steps will depend on whether the foreign worker has or needs a work permit and, if so, the type of permit required.

Hiring international students

In some cases, employers may be able to employ post-secondary international students who do not have a work permit. Assuming the employer is not located on the student’s school campus, they may be able to employ international students enrolled full-time in a post-secondary academic, vocational, or professional training program if that program is at least six months long and leads to a diploma, degree, or certificate. The student will still require a Social Insurance Number and employers must verify they hold a valid study permit that indicates an ability to work off campus.

However, employment of international students in such situations does have limits. Eligible international students are only able to work up to 20 hours a week during regular academic sessions, but they can work full-time during any scheduled academic breaks, like winter and summer holidays.

Some international students enrolled in a co-op school program with mandatory work terms may hold a co-op work permit. They will be limited to working in furtherance of their academic program requirements.

In these cases, there are no steps for the employer to take to enable the student to obtain proper work authorization, although the employer should of course verify the student’s authorization to work and adhere to any limits on the student’s work.

Hiring work permit exempt individuals

In some cases, the individual an employer wishes to hire may be work permit exempt. A common example is the case of business visitors, including foreign nationals coming to Canada to provide after-sales services. This can include individuals seeking entry to carry out certain work on specialized commercial/industrial equipment that was purchased or leased outside Canada if the service to be performed is part of the original contract or extended sales agreement, lease or rental agreement, warranty, or service contract.

In this case, the Canadian company is not required to take any steps to help the foreign national obtain a work permit, but they will likely need to provide a letter of invitation, copies of relevant warranties, service agreements, or contracts, and contact information in order for the foreign national to request entry to Canada as a business visitor.

Hiring foreign nationals who require a work permit

Individuals who hold (or can obtain) an open work permit

Certain foreign nationals may already hold, or be eligible to obtain, an open work permit. An “open” work permit allows the permit holder to work for nearly any employer in nearly any role. Some examples of open work permits include, but are not limited to the following:

  1. Spousal open work permit – marital spouses or common-law partners of some foreign workers and students may be able to obtain a companion spousal open work permit.
  2. Post-graduate open work permit – international students who graduate from an eligible Canadian designated learning institution may be able to obtain a post-graduate open work permit.
  3. Bridging open work permit – in some case, foreign nationals who have applied for permanent residency in Canada, but who are waiting on that application to be processed, may be eligible to obtain a bridging open work permit.
  4. Working holiday open permit – individuals from a country or territory that has an agreement with Canada allowing them to apply under the working holiday category of International Experience Canada may be eligible to obtain an open work permit.

If an employer wishes to hire an individual who holds, or can obtain, an open work permit, the employer should not have to take additional steps to help the individual obtain proper work authorization. However, the employer must again verify the individual does in fact have a valid work permit and should confirm any limits on the individual’s status to work. While an open work permit will not specify an employer or occupation, it can have limits on the location of work and type of work that can be done, as further detailed in one of our previous articles.

Individuals who require an employer-specific work permit

Employer-specific work permits limit the permit holder to working for a particular employer and occupation as listed on the work permit. If an employer wishes to hire a foreign national who does not fit into any of the above categories, it is likely the individual will require an employer-specific work permit before they begin work.

The steps the employer must take to enable the individual to obtain the necessary work permit will depend on whether the individual requires a Labour Market Impact Assessment (“LMIA”) through the Temporary Foreign Worker Program, or whether they are LMIA-exempt and can obtain a work permit through the International Mobility Program. We discussed the differences between these programs in this prior article regarding employer immigration compliance obligations.

Temporary Foreign Worker Program (“TFWP”)

Under the TFWP, employers must first apply to Employment and Social Development Canada / Service Canada for an LMIA. If a positive LMIA is issued, the foreign national the employer wishes to hire can use the LMIA to apply for a work permit.

In situations where there is a foreign employer sending a worker to a Canadian business for particular work, it will generally be the foreign employer that must complete the LMIA process. In this case, the Canadian entity may simply need to provide some information and a letter of support to help facilitate the process.

However, if there is no foreign entity involved, the Canadian employer will be required to complete the LMIA process, which may include undergoing an advertising period and vetting potential candidates to demonstrate a labour gap and applying to Service Canada for the LMIA.

International Mobility Program (“IMP”)

The IMP allows employers to hire foreign nationals without an LMIA, as some workers are considered exempt from the LMIA process. There are various categories of LMIA-exempt work permits under the IMP, including for intra-company transferees, emergency repair workers, workers falling under the mobility provisions of a trade agreement like the Canada-United States-Mexico agreement, entrepreneurs/self-employed individuals looking to operate a business in Canada that would generate significant economic, social or cultural benefits to Canada, and others.

To obtain a LMIA-exempt employer-specific work permit under one of these categories, the employer must first submit an Online Offer of Employment or Employer Compliance Submission through the Government of Canada’s Employer Portal. This submission will generate a confirmation number that the individual will have to include in their work permit application.

Unlike with the TFWP, the Canadian entity will almost always need to make the Employer Compliance submission, even where the Canadian entity has contracted the services of a foreign company that will pay the foreign worker’s salary.

Conclusion

The above does not cover all the employer’s obligations when hiring and employing a foreign worker, but merely discusses steps that may need to be taken to support a work permit application.

The steps a particular employer will need to take to assist a prospective international hire in obtaining necessary work authorization will ultimately depend on the scenario. For individuals who already hold (or who can obtain) open permits or who are work permit exempt, employers still must verify ability to work and limits on this work authorization, but may not need to provide much or any additional support. However, for individuals who require an employer-specific work permit to begin the job, the Canadian entity will likely have to take steps to assist the individual to obtain the necessary work permit, though exact requirements will depend on the type of work permit required and the involvement of foreign employers.

Our immigration group would be pleased to advise on whether a foreign worker requires a work permit before they are hired, what type of permit they may be eligible for, and what steps the prospective employer will need to take to support this process, among other immigration issues.

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