Canadian Immigration:
Confirmed Work Visas (Confirmed Work Permits)
BACKGROUND
Under Canadian immigration law, a foreign national who requires
a Work Visa (or Work Permit) to work in Canada but who does not
qualify for a Confirmation Exempt Work Permit must obtain a Confirmed
Work Permit.
A Confirmed Work Permit is issued by the Department of Citizenship
and Immigration (CIC) but must first be confirmed by the issuance
of a positive or neutral Labour Market Opinion from the Department
of Human Resources and Skills Development Canada (HRSDC). This two-step
process means that the processing of a Confirmed Work Permit will
invariably take longer to obtain than a Confirmation
Exempt Work Permit.
Confirmed Work Permits are analogous to U.S. H1-B visas, however,
the criteria used by HRSDC in deciding whether to issue a positive
Labour Market Opinion are quite different to those used by the U.S.
Department of Labor in issuing an H1-B Labor Condition Approval.
LABOUR MARKET OPINION
The first step in obtaining a Confirmed Work Permit is for the
Canadian employer to make an application to HRSDC for the issuance
of a Labour Market Opinion with respect to the offer of employment
made by the employer to the foreign national.
In order to render a Labour Market Opinion which is favourable
to the employer, HRSDC must find that (a) the job offer is genuine,
and (b) the employment of the foreign national is likely to result
in a neutral or positive effect on the labour market in Canada.
In determining the second requirement, HRSDC is required to base
its decision on an analysis of the following six (6) factors:
- Whether the employment of the foreign national is likely to
result in direct job creation or job retention for Canadian citizens
or permanent residents.
- Whether the employment of the foreign national is likely to
result in the creation or transfer of skills and knowledge for
the benefit of Canadian citizens or permanent residents.
- Whether the employment of the foreign national is likely to
fill a labour shortage.
- 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.
- Whether the employer has made, or has agreed to make, reasonable
efforts to hire or train Canadian citizens or permanent residents.
- 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.
HRSDC will normally consider the following factors in reaching
its determination:
- Genuine Job Offer. HRSDC will assess whether
the job offer is genuine or not. The concern here is that the
employer may be misrepresenting the job for any one of a number
of reasons. For example, the employer may be attempting to disguise
the fact that the foreign worker will be used in a different position,
or will be paid at a wage rate which is significantly less than
the prevailing wage rate paid to Canadians. Generally, speaking,
the more well-known and well-established an employer is in the
community, the easier it will be to meet this concern.
- Occupation. The foreign worker’s intended
occupation in Canada will assessed based on the Canadian National
Occupational Classification (NOC). The NOC is a comprehensive
system used for classifying occupations in Canada. The NOC lists
over 500 occupational groups and more than 30,000 job titles.
It is analogous to the American Dictionary of Occupational Titles
(DOT) or Standard Occupational Classification (SOC). By using
the NOC, it is possible to derive information on prevailing wages,
working conditions and labour market demand in Canada for the
foreign worker’s intended occupation.
- Wages and Working Conditions. HRSDC will review
the wages which are being offered to the foreign worker to determine
whether they are comparable to those which are being offered to
Canadians in the same occupation. The working conditions which
are being offered will also be compared against those which are
required by applicable federal and/or provincial workplace standards
legislation. If the wages rates are below those being paid to
Canadians, or if the workplace standards fall below those required
by federal and/or provincial laws, the job offer will not be confirmed.
- Advertising and Recruitment. Depending on
the position which is being offered, HRSDC may require the employer
to provide evidence that prior to offering the job position to
the foreign worker, it attempted to recruit qualified Canadians
for the position, or that it publicly advertised the position.
- Labour Market Benefits to Canadians. HRSDC
will also consider whether the hiring of the foreign worker is
likely to result in direct labour market benefits to Canadians.
This will normally require the employer to demonstrate how the
hiring of the foreign worker will transfer skills and knowledge
to Canadians, fill a labour shortage, or directly create or retain
job opportunities for other Canadians.
- Union Consultation. If the position is a unionized
position, HRSDC will consult with the union to determine whether
there are unemployed Canadians who are capable of filing the position.
HRSDC will also verify that the conditions of the union’s
collective agreement with the employer will apply to the foreign
worker.
- Labour Disputes. HRSDC will not issue a confirmation
if it determines that the foreign worker’s hiring is related
to or is likely to affect the outcome of a labour dispute in the
employer’s workplace (e.g., the foreign worker is being
brought in as a strikebreaker).
WORK PERMIT APPLICATION
Where the Canadian employer is successful in obtaining a favourable
Labour Market Opinion from HRSDC, the foreign national will then
have to apply to CIC to have the Confirmed Work Permit issued. In
practice, once a favourable Labour Market Opinion is secured, obtaining
the Confirmed Work Permit is relatively straightforward.
In the case of US citizens or permanent residents and Visa
Exempt Foreign Nationals, the Work Permit application may be
made at the Canadian visa office outside of Canada which serves
the foreign worker's country of residence or citizenship, or at
the port of entry where it will normally be issued “over the
counter” by the visa officer.
If the foreign worker requires a Temporary Resident Visa to enter
Canada, the application must be made the Canadian visa office outside
of Canada which serves the foreign worker's country of residence
or citizenship. No port of entry processing is possible in these
cases.
Where a Work Permit application is made outside of Canada and the
application is approved, the foreign national or his representative
will receive a confirming letter from the visa office responsible
for processing the application. The foreign national will be required
to present this confirming letter to the visa officer at the port
of entry at which time the actual Work Permit will be issued to
the foreign national, normally, by way of a counterfoil inserted
directly into the foreign national’s passport.
TEMPORARY RESIDENT REQUIREMENTS
A foreign national who is applies for a Work Permit will be required
to meet the visa, general admissibility, and medical examination
requirements which apply to Temporary
Residents.
DURATION
A Confirmed Work Permit will normally be valid from the date it
is issued until the end of the confirmation period specified in
the Labour Market Opinion. Normally, this will be anywhere from
one to three years, although confirmation periods may run for more
or less time than this.
RENEWAL
A Foreign Worker who holds a valid Confirmed Work Permit may apply
from within Canada for renewal of his/her Work Permit.
The renewal process is similar to the process required to obtain
the initial Work Permit. The Canadian employer must make an fresh
application to HRSDC for renewal or extension of the original Labour
Market Opinion and HRSDC will, once again, review the application
and apply the “genuine job offer” and “labour
market effect” tests as required under Canadian immigration
law. If approved by HRSDC, a new Labour Market Opinion is issued
in respect of the Canadian employer’s job offer. The foreign
worker may then apply to CIC from within Canada for renewal of his
Work Permit.
STRATEGIC CONSIDERATIONS FOR EMPLOYERS
The process of obtaining a Confirmed Work Permit can be quite
lengthy due to the need to obtain a positive Labour Market Opinion
from HRSDC. The Canadian employer's representative will normally
be required to provide detailed supporting information and documentation
to HRSDC to establish that the job offer is genuine and that the
hiring of the foreign national meets the test of neutral or positive
effect on the Canadian labour market.
If a Confirmed Work Permit is required, the Canadian employer should
take into account the fact that processing times may be lengthy
and should take steps to initiate the application well in advance
of the foreign worker’s intended start date in Canada. Similar
considerations with respect to early initiation of the application
process likewise apply in the case of renewals of Confirmed Work
Permits.
Disclaimer: The information contained on this
site is intended to educate members of the public generally and is not intended
to provide legal or professional advice or solutions to individual problems.
If you require legal advice or assistance, you should consult a
Gaertner Tobin LLP lawyer at info@GTLLP.com.
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