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Immigration 101
IMMIGRATION 101
Evelyn L. Ackah
Business Immigration Lawyer
June 15, 2012
Immigration 101
• Canadian economy requires more skilled and semi-skilled
workers
• Need to assess how to navigate through Canada’s
temporary foreign worker program
• HR the first to know about potential immigration needs
• How to work successfully/efficiently with external
immigration advisors

3
Part I
TEMPORARY WORK PERMITS

4
Canadian Work Permits
• The temporary foreign worker program - governed by web
of statutes, regulations, policies and programs
• Significant discretion of immigration /border officers leads
to inconsistencies

• With security and economic concerns, entry to Canada has
also been more difficult
• The new normal is “constant change”
• Employers must be proactive – not reactive
5
Canadian Work Permits
• Assessment of Type of Work Permit:
a) Is a work permit required? (The answer is almost always
"yes" if the person is being recruited to work in Canada)
b) If yes, is there an applicable LMO exempt work permit
category under the IRPA, a treaty (e.g. NAFTA, GATS), or a
special program?
c) If not, a LMO (Labour Market Opinion) must first be
obtained from HRSDC (Service Canada)

6
Immigration and Refugee Protection Act (IRPA)
• Work defined as: “an activity for which
wages are paid or commission is earned, or
that is in direct competition with the activities
of Canadian citizens or permanent residents
in the Canadian labour market”
• Under Canadian immigration law, foreign
nationals are prohibited from engaging in
work or assuming employment without first
obtaining a work permit (there are limited
exceptions to this rule)
7
Using NAFTA – LMO Exemption
• The preferred tool to facilitate cross-border
movement between Canada and the U.S.
• Used for temporary entry - not permanent
• Must be a U.S. or Mexican citizen
• Three main categories:
1) business visitors
2) professionals
3) intra-company transferees

8
NAFTA: Business Visitors
• Intended for short-term entry – meetings,
training, sales activity
• Should ensure foreign nationals always have
business visitor letter when crossing border
• Remuneration must be paid from outside
Canada
• Cannot be engaged in “work” activity
• Must ensure foreign national is prepared before
attending at port of entry

9
NAFTA: Professionals
• Renewable indefinitely (can apply for permits up to 3 years
at a time)

• Must meet educational or experience criteria
• Must be exercising the skills of the profession
• Must have an offer or contract
• NAFTA lists 66+ professions including Engineers,
Geophysicists, Computer Systems Analyst, Scientific
Technician - “Manager” or “Director” are not eligible
positions

10
NAFTA Intra-Company Transferees
• For employees at “executive” or “managerial” level, or
those who have “specialized knowledge”

• Must have worked 12 continuous months in preceding 3
years for the foreign related entity
• Must prove proper corporate affiliation of entities

• Time caps: Up to 5 years for specialized knowledge
workers and 7 years for managers
• Non-NAFTA Intra-Company Transfer category for those
who are not American or Mexican

11
Part II
Labour Market Opinions

12
The New TFW Regulations
• “New” Immigration regulations became effective
as of April 1, 2011
• Changes focus on “compliance” –
strengthening protection for FWs and limiting
the duration of temporary employment in
Canada
• Minimize the potential for FW exploitation and
implementing stricter employer monitoring
mechanisms

13
Labour Market Opinion Based Work
Permits
• To increase employer monitoring,
HRSDC/CBSA/CIC have increased data
collection and access, closer monitoring of FW
conditions, capped work terms
• Priorities:
–
–
–
–

Accurate Employer Information
Genuineness
Compliance
Cumulative Duration

14
LMO Based Work Permits
Employer Information
• Database for history of each employer
• Signed statement that employer will abide by
Program requirements and have abided by
requirements
• Copy of business license/permit; proof of
legitimate existence as an active business

15
LMO Based Work Permits
•
•
•
•
•

Genuineness
Increased documentary requirements in
determining employer genuineness
Actively engaged in business
Offer must be within reasonable business
needs of the employer
Employer must be able to fulfill terms of offer
Employer must show past compliance

16
LMO Based Work Permits
Compliance
• Increased enforcement of regulations through
Employer Compliance Reviews (ECR)
• Employers must demonstrate past compliance
by proving they met substantially the same
terms and conditions of employment as set out
in previous LMO

17
LMO Based Work Permits
Compliance
• Employers must meet the substantially the
same test (STS):
• Complied with the wages, working conditions,
and occupation set out in the original offer of
employment for each foreign worker employed
by the employer
• This is retroactive going back 2 years!

18
LMO Based Work Permits
What Records Should be Kept to show
Compliance?
• Wage and benefit information
• Each FW’s name, address, telephone number, job
title, detailed job description and location of work
• Expenses incurred (directly or indirectly) during a
recruiting process (including proof of who was paid)
• Copy of LMO and WP
• All contracts/agreements entered into with foreign
workers and external recruiters
• Record keeping is a must to be able to successfully
pass an ECR
19
LMO Based Work Permits
Compliance
• With every new LMO application, HRSDC has
authority to review past compliance for every
foreign worker employed in the past 2 years
• If found not to have met compliance
requirements, must provide “reasonable
justifications”
• If found not to be compliant, can be listed on
public website as “non-compliant employer” and
banned from using TFW program for 2 years
20
LMO Based Work Permits
Compliance – “Bad Employer” List
• Public non-compliance list maintained by CIC:
– To be posted on CIC website
– Includes names/addresses of employers found
non-compliant by either CIC or Service Canada
– Employer will be notified of non-compliance first

21
LMO Based Work Permits
Cumulative Duration – “Cap”
• foreign worker is permitted to work in Canada
for an accumulated total of 4 years:
– Can apply again once 48 months has elapsed since
the date that the FW accumulated 4 years of work
– Several exceptions apply to the 4 year cap

22
LMO Based Work Permits
Cap Exceptions
• FWs in Managerial (NOC 0) and professional
(NOC A) occupations
• FWs who have applied for permanent
residence and received a positive assessment
• FWs who are employed under an LMO exempt
category - such as NAFTA based work permit
or other international agreements

23
LMO Based Work Permits
ALMOs – Trusted Employers
• Starting April 25, 2012, “trusted employers” are eligible to
apply for “accelerated” LMOs reducing processing times of
LMOs to about 10 working days
• Attestation based LMO – must consent to undergo ECR –up
to 20% of employers using this program will undergo ECR
• To qualify for A-LMO employers must:
– Have applied for and received approval for LMO within the past 2
years
– Must be able to pass the Substantially the Same (STS) test and
have a clean record of compliance with the program for 2 years
– Must comply with all workplace laws (provincial and federal)
– Request is for a NOC O, A or B level position
24
LMO Based Work Permits
Changes in Evaluating Wages
• Employers continue to be required to pay foreign
workers the same wages they pay Canadian
workers performing the same job in the same
location
• The wages paid to foreign workers can now be up
15% less than the “average wage” for skilled
positions and up to 5% less than the “average
wage” for low-skilled positions if this amount is
equal to the wage being paid to Canadians

25
Part III
TIPS TO ENSURE SUCCESS

26
Practical Pointers
Before Submitting Immigration Application:
1. Be proactive and consider immigration issues early
2. Properly assess foreign national and purpose of
entry and then develop appropriate immigration
strategy and supporting documents (legal counsel
can assist)
3. Consider whether mail-in application more prudent
versus port of entry application
4. Choose best port-of-entry
27
Practical Pointers
5. Watch out for:
– Inadmissibility due to criminal convictions or prior
refusals
– Entry visa requirements – visa offices can vary
significantly
– Immigration medical requirements
– Accompanying dependents
– Changes in laws, policies or procedures

28
Practical Pointers
At the Port of Entry:
1. Educate the person crossing the border
2. Know the purpose of entry and your itinerary
3. Always be courteous with immigration / border
officers – they have a lot of power and
discretion
4. Always be honest. This avoids potential
misrepresentations
29
Practical Pointers
5. Always travel with proper supporting
documentation and package (this includes
Business Visitors)
6. Travel during regular business hours. Then help
can be contacted if there are problems
7. Never insist on entry if problems occur. May be
allowed to withdraw the application. This may be
better than a refusal

30
Why is immigration planning/compliance
important?
• Denial of LMO or work permits
• Could result in removal of foreign workers if
working without valid work permit
• Costly to employer reputation (“non-compliant
employer” list)
• Heavy fines for employers if engaging
unauthorized foreign workers
• With passing of Bill C-35 earlier this year,
employers must be careful to ensure HR
specialists are NOT working in capacity of
“immigration representatives”
31
Focus on Compliance - Summary
• Employers must establish a culture of
immigration compliance
• Obtain extensions for work permits well in
advance
• Keep up to date and accurate records
• Be aware of how provincial legislation may
relate to FWs (i.e. OH&S, Employment
Standards, etc.)
• Plan ahead – immigration applications take
time
32
THANK YOU!

33
QUESTIONS?
Ackah Business Immigration Law

Suite 1105
550- 11 Avenue SW
Calgary, AB T2R 1M7
(403) 452-9515
evelyn@ackahlaw.com
Immigration 101

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Immigration 101

  • 2. IMMIGRATION 101 Evelyn L. Ackah Business Immigration Lawyer June 15, 2012
  • 3. Immigration 101 • Canadian economy requires more skilled and semi-skilled workers • Need to assess how to navigate through Canada’s temporary foreign worker program • HR the first to know about potential immigration needs • How to work successfully/efficiently with external immigration advisors 3
  • 5. Canadian Work Permits • The temporary foreign worker program - governed by web of statutes, regulations, policies and programs • Significant discretion of immigration /border officers leads to inconsistencies • With security and economic concerns, entry to Canada has also been more difficult • The new normal is “constant change” • Employers must be proactive – not reactive 5
  • 6. Canadian Work Permits • Assessment of Type of Work Permit: a) Is a work permit required? (The answer is almost always "yes" if the person is being recruited to work in Canada) b) If yes, is there an applicable LMO exempt work permit category under the IRPA, a treaty (e.g. NAFTA, GATS), or a special program? c) If not, a LMO (Labour Market Opinion) must first be obtained from HRSDC (Service Canada) 6
  • 7. Immigration and Refugee Protection Act (IRPA) • Work defined as: “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market” • Under Canadian immigration law, foreign nationals are prohibited from engaging in work or assuming employment without first obtaining a work permit (there are limited exceptions to this rule) 7
  • 8. Using NAFTA – LMO Exemption • The preferred tool to facilitate cross-border movement between Canada and the U.S. • Used for temporary entry - not permanent • Must be a U.S. or Mexican citizen • Three main categories: 1) business visitors 2) professionals 3) intra-company transferees 8
  • 9. NAFTA: Business Visitors • Intended for short-term entry – meetings, training, sales activity • Should ensure foreign nationals always have business visitor letter when crossing border • Remuneration must be paid from outside Canada • Cannot be engaged in “work” activity • Must ensure foreign national is prepared before attending at port of entry 9
  • 10. NAFTA: Professionals • Renewable indefinitely (can apply for permits up to 3 years at a time) • Must meet educational or experience criteria • Must be exercising the skills of the profession • Must have an offer or contract • NAFTA lists 66+ professions including Engineers, Geophysicists, Computer Systems Analyst, Scientific Technician - “Manager” or “Director” are not eligible positions 10
  • 11. NAFTA Intra-Company Transferees • For employees at “executive” or “managerial” level, or those who have “specialized knowledge” • Must have worked 12 continuous months in preceding 3 years for the foreign related entity • Must prove proper corporate affiliation of entities • Time caps: Up to 5 years for specialized knowledge workers and 7 years for managers • Non-NAFTA Intra-Company Transfer category for those who are not American or Mexican 11
  • 12. Part II Labour Market Opinions 12
  • 13. The New TFW Regulations • “New” Immigration regulations became effective as of April 1, 2011 • Changes focus on “compliance” – strengthening protection for FWs and limiting the duration of temporary employment in Canada • Minimize the potential for FW exploitation and implementing stricter employer monitoring mechanisms 13
  • 14. Labour Market Opinion Based Work Permits • To increase employer monitoring, HRSDC/CBSA/CIC have increased data collection and access, closer monitoring of FW conditions, capped work terms • Priorities: – – – – Accurate Employer Information Genuineness Compliance Cumulative Duration 14
  • 15. LMO Based Work Permits Employer Information • Database for history of each employer • Signed statement that employer will abide by Program requirements and have abided by requirements • Copy of business license/permit; proof of legitimate existence as an active business 15
  • 16. LMO Based Work Permits • • • • • Genuineness Increased documentary requirements in determining employer genuineness Actively engaged in business Offer must be within reasonable business needs of the employer Employer must be able to fulfill terms of offer Employer must show past compliance 16
  • 17. LMO Based Work Permits Compliance • Increased enforcement of regulations through Employer Compliance Reviews (ECR) • Employers must demonstrate past compliance by proving they met substantially the same terms and conditions of employment as set out in previous LMO 17
  • 18. LMO Based Work Permits Compliance • Employers must meet the substantially the same test (STS): • Complied with the wages, working conditions, and occupation set out in the original offer of employment for each foreign worker employed by the employer • This is retroactive going back 2 years! 18
  • 19. LMO Based Work Permits What Records Should be Kept to show Compliance? • Wage and benefit information • Each FW’s name, address, telephone number, job title, detailed job description and location of work • Expenses incurred (directly or indirectly) during a recruiting process (including proof of who was paid) • Copy of LMO and WP • All contracts/agreements entered into with foreign workers and external recruiters • Record keeping is a must to be able to successfully pass an ECR 19
  • 20. LMO Based Work Permits Compliance • With every new LMO application, HRSDC has authority to review past compliance for every foreign worker employed in the past 2 years • If found not to have met compliance requirements, must provide “reasonable justifications” • If found not to be compliant, can be listed on public website as “non-compliant employer” and banned from using TFW program for 2 years 20
  • 21. LMO Based Work Permits Compliance – “Bad Employer” List • Public non-compliance list maintained by CIC: – To be posted on CIC website – Includes names/addresses of employers found non-compliant by either CIC or Service Canada – Employer will be notified of non-compliance first 21
  • 22. LMO Based Work Permits Cumulative Duration – “Cap” • foreign worker is permitted to work in Canada for an accumulated total of 4 years: – Can apply again once 48 months has elapsed since the date that the FW accumulated 4 years of work – Several exceptions apply to the 4 year cap 22
  • 23. LMO Based Work Permits Cap Exceptions • FWs in Managerial (NOC 0) and professional (NOC A) occupations • FWs who have applied for permanent residence and received a positive assessment • FWs who are employed under an LMO exempt category - such as NAFTA based work permit or other international agreements 23
  • 24. LMO Based Work Permits ALMOs – Trusted Employers • Starting April 25, 2012, “trusted employers” are eligible to apply for “accelerated” LMOs reducing processing times of LMOs to about 10 working days • Attestation based LMO – must consent to undergo ECR –up to 20% of employers using this program will undergo ECR • To qualify for A-LMO employers must: – Have applied for and received approval for LMO within the past 2 years – Must be able to pass the Substantially the Same (STS) test and have a clean record of compliance with the program for 2 years – Must comply with all workplace laws (provincial and federal) – Request is for a NOC O, A or B level position 24
  • 25. LMO Based Work Permits Changes in Evaluating Wages • Employers continue to be required to pay foreign workers the same wages they pay Canadian workers performing the same job in the same location • The wages paid to foreign workers can now be up 15% less than the “average wage” for skilled positions and up to 5% less than the “average wage” for low-skilled positions if this amount is equal to the wage being paid to Canadians 25
  • 26. Part III TIPS TO ENSURE SUCCESS 26
  • 27. Practical Pointers Before Submitting Immigration Application: 1. Be proactive and consider immigration issues early 2. Properly assess foreign national and purpose of entry and then develop appropriate immigration strategy and supporting documents (legal counsel can assist) 3. Consider whether mail-in application more prudent versus port of entry application 4. Choose best port-of-entry 27
  • 28. Practical Pointers 5. Watch out for: – Inadmissibility due to criminal convictions or prior refusals – Entry visa requirements – visa offices can vary significantly – Immigration medical requirements – Accompanying dependents – Changes in laws, policies or procedures 28
  • 29. Practical Pointers At the Port of Entry: 1. Educate the person crossing the border 2. Know the purpose of entry and your itinerary 3. Always be courteous with immigration / border officers – they have a lot of power and discretion 4. Always be honest. This avoids potential misrepresentations 29
  • 30. Practical Pointers 5. Always travel with proper supporting documentation and package (this includes Business Visitors) 6. Travel during regular business hours. Then help can be contacted if there are problems 7. Never insist on entry if problems occur. May be allowed to withdraw the application. This may be better than a refusal 30
  • 31. Why is immigration planning/compliance important? • Denial of LMO or work permits • Could result in removal of foreign workers if working without valid work permit • Costly to employer reputation (“non-compliant employer” list) • Heavy fines for employers if engaging unauthorized foreign workers • With passing of Bill C-35 earlier this year, employers must be careful to ensure HR specialists are NOT working in capacity of “immigration representatives” 31
  • 32. Focus on Compliance - Summary • Employers must establish a culture of immigration compliance • Obtain extensions for work permits well in advance • Keep up to date and accurate records • Be aware of how provincial legislation may relate to FWs (i.e. OH&S, Employment Standards, etc.) • Plan ahead – immigration applications take time 32
  • 34. QUESTIONS? Ackah Business Immigration Law Suite 1105 550- 11 Avenue SW Calgary, AB T2R 1M7 (403) 452-9515 evelyn@ackahlaw.com

Notes de l'éditeur

  1. - Every LMO must now have a validity period (currently set at a maximum of 6 months but may be shorter in some circumstances)
  2. This means that a foreign national may not be geographically relocated, and the wages and working conditions must remain substantially the same. The employee cannot be demoted but also cannot be promoted without going back to Service Canada for a new LMO.Query whether this means that an audit will be undertaken for each and every LMO.
  3. Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers
  4. Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers
  5. Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers
  6. Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers