Workplace Challenges

Changes to immigration law creates opportunities

New legislation, entitled the Immigration and Refugee Protection Act (IRPA), went into effect in Canada on June 28.

BENJAMIN KRANC

[ 2002-08-21 ]

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Benjamin Kranc

This new law has important implications for virtually all aspects of Canada's immigration system, and for issues relating to the hiring and re-hiring of foreign workers.

Basic Procedure

When an employer seeks to hire (or renew the employment of) a foreign worker, the basic starting point is the employer must first seek a 'labour market opinion' from HRDC -- also referred to as a 'confirmation'.

The process is similar to that of 'validation' under the previous law, however, the substantive considerations have changed. The issues now to be considered by an HRDC Officer, as encoded in the IRPA Regulations, are as follows:

(a) whether the work is likely to result in direct job creation or job retention for Canadians ('Canadians' in this article refers to permanent residents or Canadian citizens);

(b) whether the work is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadians;

(d) whether the wages and working conditions offered are sufficient to attract and retain Canadians;

(e) whether the employer has made or has agreed to make reasonable efforts to hire or train Canadians, and

(f) whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute.

It's too early to tell how the relative importance of these factors will be considered, however, it would seem that issues (d) and (e) may allow an HRDC officer to retrench to similar, if not identical, considerations as were used under previous law.

The new law, it is said, is to apply a 'net benefit to Canada's model (looking at the neutral or positive effect the foreign employee will have on the labour market) as opposed to the previous 'Canadians first' model (where the consideration was the displacement of a Canadian by a foreign worker).

When a Labour Market Opinion can be Bypassed

The foregoing represents the basic procedure in hiring/rehiring a foreign worker, but there are also numerous circumstances where neither a confirmation, nor a work permit may be required. No labour market opinion is necessary in certain cases, and where such circumstances exist (as will be discussed below), they should be put to use to save time and money. Having a confirmation in hand provides extra security, in that it leaves less discretion to the immigration officer.

Some of the more common confirmation exemptions include the following. Firstly, there is the ' intra-company transferee'. The essential concept is, someone from a foreign affiliate of a Canadian corporation, who has either executive or managerial capacity, or who has specialized knowledge, may be entitled to work in Canada for the Canadian branch for a temporary period.

The applicant will have had to have worked at the foreign affiliate for at least one year, and appropriate documentation about the relationship of the corporations, as well as the credentials of the applicant are required.

There is also the concept of 'significant benefit' which allows an officer to issue a work permit without a labour market opinion where there is evidence of the importance of having the person in Canada. It is an area where creativity can be used to bypass more cumbersome and lengthy procedures described above.

When the Need for a Work Permit Can Be Completely Bypassed

The above are a few examples of possible labour market opinion exemptions under the new legislation. The law provides for some instances where no work permit is required at all. Perhaps most importantly, a new concept has been introduced -- that of 'business visitor'.

This category allows for foreigner nationals to engage in international business activities without directly entering the Canadian labour market, in cases where the primary source of remuneration remains outside Canada and the principal place of business and actual place of accrual of profits remains predominately outside Canada.

This is a significant change, and certainly provides new opportunities; for instance, whereas foreign nationals coming to Canada for the purpose of after-sales service previously required a validation exempt work permit, this provision would allow their entry as simple visitors.

It's hoped the new philosophy espoused in the law translates into an improved ability to bring needed foreign workers into Canada.

(Benjamin A. Kranc, of Kranc and Associates, is certified by the Law Society of Upper Canada as a specialist in immigration law)