Workplace Challenges
Take heed of workplace immigration lawsEvery year, despite 'anti-immigration' talk, and predictions of doom and gloom, close to 200,000 people come to Canada on temporary work permits (besides another 200,000 or so that come as permanent residents). BENJAMIN A. KRANC |
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 [ 2002-03-06 ] |
These foreign workers come in various shapes and sizes -- from high-powered corporate executives to high-tech masters, and from seasonal agricultural workers to multi-year intra-company transferees. In many cases, our economy relies heavily on the ability to attract foreign expertise where it is lacking in Canada.
The immigration maze can be difficult to navigate for both employers and employees, and when a foreign worker has been hired or is to be hired by a Canadian employer, all parties should be aware of the many issues they may face.
For an employer, the starting point in an attempt to hire a foreign worker is referred to as 'validation', which is the certification by Human Resources Development Canada (HRDC) that the hiring of the worker will not negatively impact on the Canadian labour market. There are changing attitudes about the issues involved in securing validation, but employers must justify their decision to hire from outside Canada.
There are, however, numerous exceptions to the need to seek validation, and where possible, they should be employed. As just one of many examples, an American executive may be allowed to work at a Canadian affiliate office under the provisions of NAFTA. Whether validation is needed or not, a work permit must still be obtained, which is done, depending on the facts, at a Canadian embassy or consulate, or at a port of entry.
In limited cases, there are allowances for people to work in Canada without a work permit -- for example, foreign buyers and sellers, and certain athletes and performing artists. Note that hiring a foreign worker without proper authorization may have significant negative legal consequences for an employer, and all proper precautions should therefore be taken.
For a foreign employee, the starting point is really with the employer. The employer must indicate a need to have that worker, as discussed above. Once the employer has taken steps to indicate his need to have the foreign employee, whether through validation, or by one of the 'exception' mechanisms, then the employee can make his application to the appropriate embassy or port of entry.
With very limited exceptions, 'open' work permits, i.e. permits not connected to a particular employer, are not granted. A prospective employee will need to satisfy an immigration officer of his or her credentials to carry out the job in question. Temporary work permits are, by definition, for a limited period of time. Extensions must be obtained through the inland processing centre in Vegreville, Alta.,prior to the expiration of the current work permit (and in some cases, there are maximum extension allowances). Note that an employee in Canada on an existing work permit cannot change employers without an application to amend the permit, which may require passing the same hurdles (e.g. validation) as the initial permit.
Employers seeking to hire foreign employees, and those foreign employees, must be aware of the immigration issues (as well as employment or other legal issues which may be affected by the relationship) in order to avoid complications down the road.
Benjamin A. Kranc is senior principal of Kranc & Associates, a leading Toronto immigration law firm, and Certified as a Specialist in Immigration Law by the Law Society of Upper Canada. Visit www.migratecanada.com.
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