How do Canadians feel about foreign workers?
Overview: General information on immigration law in Canada
by lawyer Sven Walker, [email protected],
Tel. +1 416 369-7848
Canadian immigration law
For companies doing business in Canada, it is often of interest to post their own employees to Canada for a certain period of time or to hire employees from abroad in Canada. What at first glance appears to be a good option, however, also harbors risks. The posting or hiring of a foreign worker in Canada must be carried out in accordance with the immigration regulations of the country, otherwise the worker will either be delayed or, in the worst case, not be able to start his work in Canada. Therefore, the employer should familiarize himself with the immigration regulations regarding hiring workers in Canada.
Foreign workers can be divided into 2 categories: (1) those who need a labor market report; and (2) those who do not need it.
Canadian immigration law provides the following options for posting and recruiting foreign workers:
The Labor Market Report (LMIA)
In most cases, foreign workers must have a valid work permit to work in Canada. Without such a work permit, only Canadian citizens and foreigners who have permanent residence permits are allowed to work in Canada.
In order to apply for a work permit, a job offer from a Canadian employer is usually required first. In some cases this vacancy has to be approved by the Canadian Employment and Skills Development Canada (ESDC). ESDC then issues a labor market report, which confirms that the foreign employee is allowed to fill the position.
In order to receive such a job market assessment, the employer must show that he has unsuccessfully tried to find a Canadian employee in the local job market who has the necessary qualifications to fill the position. In addition, the Canadian employer must ensure that the salary and working conditions of the foreign employee will meet Canadian standards.
Several labor market reports for several foreign workers
Companies whose projects require the hiring of several foreign employees have the option of having several labor market reports approved. This bundle of labor market reports represents a general permit to fill a large number of specific positions with foreign employees. After receiving these labor market reports, the employer may carry out the application process and hire the approved number of employees. The issuing of a positive labor market report for each and every one of these employees is then only a formality.
Only after receiving a positive labor market report is the employee entitled to apply for a work permit at the Canadian Immigration Service (Citizenship and Immigration Canada - CIC). Employees who do not need a visitor visa (such as German, Austrian or Swiss citizens) can apply for a work permit when they enter Canada (e.g. at Pearson International Airport in Toronto). Workers who require a visitor visa must apply for work permits at the Canadian embassy or consulate in their home state or in the state where they live. The work permit is issued for 1 to 3 years and can be extended under certain circumstances.
Foreign employees who do not need a labor market report:
In-company transfer of employees (ICT - Intra-Company Transfer)
In-house employee transfers is an immigration category for employees who are temporarily posted to Canada by the overseas parent company, subsidiary, branch, or company affiliated with a Canadian employer.
In order to receive a work permit as part of the internal transfer of employees, the following requirements must be met:
The employee must have been employed by the parent company, subsidiary, branch or affiliated company of a Canadian employer for at least one uninterrupted year in the three years prior to the application and must continue to be employed by the foreign company during the transfer;
The respective employee must have been employed as a senior manager, board member or as a skilled worker during this time. The term skilled worker means that the person has specialist knowledge of the products, services or organization of the company which are necessary for the intended activity in Canada; and
Each employee's job at the Canadian subsidiary must be comparable to that at the company outside Canada.
Workers who do not require a visitor visa to enter Canada can apply for a work permit upon entering Canada. Workers who require a visitor visa must first apply for a work permit at the Canadian embassy or consulate in their home state or in the state where they live. The work permit is issued for 1 to 3 years and can possibly be extended to a maximum of 7 years for senior executives or board members, and 5 years for skilled workers.
The spouse's work permit
The spouse (or life partner of a civil partnership) of an employee who has received a work permit through an internal transfer is also entitled to apply for a work permit without first having to obtain a labor market report. For this, however, the work permit of the employee who is transferred within the company must be valid for at least 6 months and his position must correspond to "high-skilled" employment according to Canada's National Occupational Classification. If the above requirements are met, the spouse or partner can apply for an open work permit, which (if the required medical opinion is positive) entitles them to work with any Canadian employer. The period of validity of the work permit of the spouse or partner ends as soon as the work permit of the employee of the person who is to be transferred expires.
This immigration category allows foreign business people to enter Canada for up to 6 months and do business there without the need for a labor market assessment and without applying for a work permit as a business visitor.
To qualify for this immigration category, the incoming business visitor must not intend to enter the Canadian labor market. Furthermore, he must continue to receive his income outside Canada, the headquarters of his company must be outside of Canada and the income from profits must be predominantly outside Canada.
Business visitors may perform the following functions or activities, among others:
Attending a business meeting - attending business partner meetings or business meetings (including attending a board meeting);
Supervising - Supervising an installation of specialized machinery acquired or leased outside of Canada;
In-house training - Attending or conducting training courses at the Canadian subsidiary of the overseas company where the business visitor is employed, provided that the production of goods or the provision of services in connection with such training is of minor importance;
Customer care after a sale - The customer care area includes people who deal with the repair and maintenance, construction and inspection of commercial and industrial equipment (including computer software) or who are entrusted with the supervision of the installers after a sale has taken place. This also includes people who travel to Canada to repair or maintain specialized equipment and machines that were acquired or leased outside of Canada, if this is in fulfillment of a purchase, leasing, guarantee or maintenance contract he follows. However, it does not include people who operate the equipment and computer software or who carry out construction work.
The maintenance contract must either be part of the original purchase or lease contract or an addendum to the above contracts. The maintenance contracts with third parties that were concluded after the original contract was concluded do not fall under the immigration category described here. Something else applies, however, if the original purchase or leasing contract contains a provision that refers to the third party as a party to the maintenance contract.
All business visitors entering Canada for more than two days are registered with immigration authorities. Business visitors must be able to provide a copy of the purchase or lease agreement between the business hiring company and the Canadian company or the parent company of the Canadian subsidiary to the Canadian Immigration Service upon entry into Canada. If the contract is not in English or French, a certified translation of the contract must be available to the Canadian Immigration Officer. It is very important that the goods or services that are the subject of the purchase or lease agreement, the name and address of the Canadian recipient of the service and the type of maintenance and repair work are explicitly and clearly specified in the contract.
When entering Canada, the business visitor should provide a Canadian immigration officer with a cover letter from the Canadian subsidiary and the foreign parent company describing the relationship between the foreign and Canadian company and evidencing it, for example, through a company profile. This letter should also contain information on the expected length of stay and the duties of the business visitor during the stay in Canada.
Processing status: April 2015
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