Getting a Work Permit with HRSDC Confirmation

Working in Canada:
How, When and Why to get your Permit with HRSDC Labour Market Opinions


Introduction

The challenge of a work permit application is often determining where to start. A significant and embarrassing practice error can occur when an immediate application is made to HRSDC without first asking a few basic questions.

Is it “work”?

The first task is to determine if it the activity of the client is work. “Work” is defined in the Immigration and Refugee Protection Act, Regulations in s. 2:

“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”

The Foreign Worker Manual found at http://www.cic.gc.ca/manuals-guides/english/fw/fwe.pdf sets out a detailed discussion of work and provides examples of activities considered not to be work by CIC. If your client’s activities fall within the definition of work, the next step to follow is to determine what kind of work permit is required, if any.

Is the client work permit exempt?

Section 30(1) of The Immigration and Refugee Protection Act (“IRPA”) requires that “ a foreign national may not work or study in Canada unless authorized to do so under this Act”. The Act contemplates a number of categories in Regulation s.186 where work is permitted on a “without permit basis”. Work in Canada is permitted for business visitors per R186(a), and defined in R187), foreign representatives per R186(b), on campus employment per R186(f), and religious work per 186(l), to name a few. A careful examination of each provision is necessary to ensure compliance with these categories. All practitioners must be fully familiar with these work permit exempt categories before making HRSDC applications.

Does the Work permit require an HRSDC labour market opinion (LMO)?

R200 sets out the process for the issuance of work permits. A work permit shall be issued by an officer if it is established:

…
(1)(c)(iii) the foreign national has been offered employment and the officer has determined under s. 203 that the offer is genuine and that the employment is likely to result in a neutral or positive effect on he labour market in Canada
…

R203 requires the officer make a decision in part based on the opinion received from HRSDC as to genuineness and effect on the Canadian labour market.

R203(2) states that the opinion shall be provided at the request of an officer or of an employer or group of employers and may be made in respect of one employee or a group of employees.

However, not each work permit application requires HRSDC confirmation. Exemptions also exist from the requirement to obtain an HRSDC LMO. The first exemptions can be found in R200(1)(c) and summarized as follows:

R204 – Employment that is subject to an international agreement. This would include, for example, NAFTA and GATS. This exemption is the subject of a separate paper. Also included are agreements between provinces and countries.

R205 – Employment that advances Canadian interests, including:

R205(a) – work that creates or maintains social cultural or economic benefits or opportunities to Canadians or permanent residents;

R205(a) – Employment that creates reciprocal employment for Canadians or permanent residents (SWAP, for example);

R205(b) – Employment that is designated by the Minister as being work that can be performed by a foreign national and is related to a research, education or training program; or where limited access to the labour market is necessary for reasons of public policy relating the competitiveness of Canada’s academic institutions or economy (205(c)); or

R205(d) – is of a religious or charitable nature.

R206 – Persons who have made claims for protection and are without means of support, or under an unenforceable removal order;

R207 – Applicants in Canada, such as members of the live-in-caregivers class and spouses and common law partners in Canada class, s. 25 H&C exempted persons prior to landing.

R208 – Students who require a work permit for humanitarian reasons and who are destitute and persons on a temporary resident permit for more than 6 months.

If your client’s circumstances do not fit one of the exemptions, a LMO will be required to satisfy an officer under R200.

Labour Market Opinions

Requests for labour market opinions are regulated by IRPA regulation 203. The test to be met is in R203(1), which provides that the job offer must be genuine and the employment of the foreign national must likely have a neutral or positive effect on the labour market in Canada. R203(3) provides the standards for assessment of the R203(1) test, as follows:

(3) An opinion provided by the Department of Human Resources Development shall be based on the following factors:
(a) whether the employment of the foreign national is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
(b) 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;
(c) whether the employment of the foreign national is likely to fill a labour shortage;
(d) 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;
(e) whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and
(f) 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.

In assessing an LMO under R203, HRSDC primarily considers the following factors:

whether the job offer is genuine;
The occupation that the foreign worker will be employed in;
the wages and working conditions offered;
the employer’s advertisement and recruitment efforts;
the labour market benefits related to the entry of the foreign worker, including:
whether the employment of the foreign worker will directly create new job opportunities or help retain jobs for Canadians; and
whether the foreign worker will transfer new skills and knowledge to Canadians
consultations, if any, with the appropriate union; and
whether the entry of the foreign worker is likely to affect the settlement of a labour dispute.

A side by side comparison of R203 and HRSDC’s considerations demonstrates that the assessment criteria and law and in application lack parity, but that is a subject of a separate paper.

To satisfy HRSDC and more importantly, to keep your clients happy, be sure to address each and every one of HRSDC’s considerations and the considerations at law. For the purposes of this paper, we will address what are the most challenging tasks in satisfying these considerations and will not be addressing union issues.


Labour Market Information

Before doing anything, assess the labour market.

A thorough LMO application is not complete without including current labour market information. Labour market information is so important that it should be the first place you look in determining whether the application is worth pursuing. Credible labour market information suggesting that hiring a foreign worker will have a negative impact on the Canadian labour market will sink your application as fast as you can fax it in.

British Columbia labour market information is readily available from a variety of online sources, including:

http://www.achievebc.ca/
http://www.workinfonet.bc.ca/
http://www.workfutures.bc.ca/
http://lmi-imt.hrdc-drhc.gc.ca/
http://www.hrsdc.gc.ca/en/bc-yk/59/jwtc/lmi/menu.shtml
http://www.bcstats.gov.bc.ca/data/lss/labour.htm
http://www.statscan.ca/

Submit information highlighting labour market conditions and address those points in your submissions. HRSDC recognizes that the labour market is constantly changing and has a team of economists whose full time jobs is to assess labour market information.

Advertising
HRSDC suggests advertising in local and national newspapers, recognized internet job banks, job-specific and professional publications. Keep receipts to show how long the advertisements were published. The advertisements must clearly show the job duties, position requirements, wages and working conditions. In some situations, evidence of recruitment of Canadians through other means such as job fairs, co-operative education programs, and apprenticeships may be acceptable.
In Vancouver, employers should be advised to advertise in the Vancouver Sun/Province for at least one weekend (if possible two), on a website (The Sun/Province usually offers free posting on careerclick.ca, the HRSDC jobbank also offers free internet listings), and in any industry related publications if possible. The threshold for advertising is subjective and at the discretion of the officer assessing the application. Advertising must be for the placed for the duration and in the location that would regularly be used to fill the position. Effective advertising is not cheap and can be a barrier to a successful LMO application, notwithstanding, employers should be advised to advertise as much as possible.

Keep a record of all applicants stemming from recruitment efforts, whether they apply by phone, in person or by submitting a resume to the employer. In making submissions to HRSDC in support of a LMO request, give clear reasons why each of those applicants were not offered the position being assessed.

Wages and Working Conditions

Under the old regulations, the standard for assessment of the R203(1) test was different; 203(3)(d) provided that the wages and working conditions offered had to be sufficient to attract Canadian citizens or permanent residents and to retain them in that work. This shift in regulation has added the ambiguous standard of meeting a “prevailing wage rate” test. Wages offered now not only need to be high enough to attract Canadians or permanent residents, but must also be the “prevailing wage”.

In researching this paper, we were hard-pressed to find a reliable definition of “prevailing wage”. In McGugan v. Davidson [1984] N.B.J. No. 317, the New Brunswick Court of Queen’s Bench, trial division, in a defamation case, noted that a prevailing wage is one “which employers are offering to persons seeking employment through Canada Employment and would be essentially non-union employment”.

In Kinetic Construction Ltd. v. Canada (Attorney General) [2000] F.C.J. No. 1181, Justice McKewon, in considering the federal Fair Wages and Hours Regulations, C.R.C. 1978, c-1015, and section 6 of the Fair Wages and Hours of Labour Act, R.S.C. 1985, c. L-3, found that fair wages are wages that a) are generally accepted as current for competent workmen; b) in the district in which work is being performed; and c) for the character or class of work in which workmen are respectively engaged.

Fair wage definition was found to mean the “prevailing or typical wage being paid to competent workers. In particular, the phrase ‘generally accepted as current’ is clearly a reference to the current wage paid to workers by contractors or under individual contracts or employment or, where applicable, collective agreements…. for the purpose of determining prevailing wages, a district must be a region in which the prevailing wages are fairly consistent or relatively uniform, and must be wages for competent workmen in such area.”

Practically speaking, HRSDC relies on the following resources to assess the prevailing wage of an occupation:

2001 Census
2003 Labour Force Survey, available from Statistics Canada
phone calls to unions and associations with regulated wage ranges
calls to major employers in the private sector
phone calls to schools, usually BCIT, regarding employment rates and wages for recent graduates
online information

HRSDC is committed to not putting downward pressure on wage rates. As such, both union and non-union wage rates are considered in determining a prevailing wage. A prevailing wage will typically fall between the non-union wage and the union wage for every positions assessed, whether or not the position is a union or non-union position.

There are about half a dozen credible websites dedicated to labour market information in BC, many of them offer salary information. An effective, results motivated way to determine the "prevailing wage" is to do the labour market research online and from the same sources used by HRSDC before setting the wage and to then submit the LMO request, bolstered by highlighted irrefutable information from the credible sources. Your application is less likely to be refused when you put this kind of information before HRSDC because it makes their job easy and it demonstrates that the employer has done some homework.

3. Work Permit Application Process

With the long sought after and expensive LMO in hand, the thing a practitioner fears most is problems in the permit applications process. Caution is to exercised. Problems can still occur.

Where and When to Apply

Often the foreign national will be present in Canada at the time the LMO has been issued. The next decision is the location of the permit application. Division 2, Part 11 of the IRPA Regs sets out the application process for a work permit and when to apply for a work permit. The rules vary depending on the status of the foreign national in Canada; their nationality and what exemptions they might fall under, if any.

A foreign national may only apply for a work permit at a port of entry if they are exempt from the requirement to obtain a temporary resident visa (Division 5, Part 9 of IRPARegs) .

There are significant exceptions to this permissive rule. The following classes cannot apply on entry to Canada:

198(2)(a) – A LMO is required, unless the applicant has the LMO in hand (excluding seasonal agricultural employment and live-in caregivers), or the applicant is not a citizen or permanent resident of St. Pierre and Miquelon, USA or Greenland;
198(2)(b) – Applicants who require a medical certificate;
198(2)(c) – Participants in a international youth exchange program unless they are nationals or permanent residents of the United States or the work permit is approved before entry to Canada.

After entry into Canada foreign nationals are able to apply for a work permit directly to Vegreville by way of a change of status application (Form 1249), so long as the applicant falls within one of the exceptions set out in R199:

· R199(a) – applicants who currently hold a work permit (extension applicants);
· R199(b) – applicants who are in Canada under R186, but not business visitors under R187;
· R199(c) – holders of study permits;
· R199(d) – holders of temporary resident permits valid for at least 6 months;
· R199(e) – family member of anyone described above in (a) to (d);
· R199(f) – described in R206 (referred to the Refugee Protection Division or under and unenforceable removal order) or R207 (applicants in Canada, spouses, live-in-caregivers);
· R199(g) – applicants who applied outside of Canada and the application was approved in writing but a work permit was not issued;
· R199(h) – NAFTA citizens
· R199(i) – holders of a written statement from Foreign Affairs stating no objection to the foreign national working at a foreign mission in Canada.

Applications that can be made at port of entry will usually be processed that same day, while the applicant waits. If an application is sent in by mail to Vegreville or an overseas post, you are at the mercy of that post’s processing schedule.

R200 Requirements

The issuance of a LMO under R203 does not a guarantee the issuance of a work permit. The applicant must satisfy all requirement of R200. The exceptions in R200(3) sets out all exceptions where work permits should not be issued:

· R200(3)(a) – The officer believes that the applicant cannot perform the work;
· R200(3)(b) – The law of Quebec requires a certificat d’accceptation du Quebec and the applicant does not have one;
· R200(3)(c) – The work of the applicant will effect a labour dispute;
· R200(3)(d) – The applicant is a live-in-caregiver who does not meet the requirements of R112;
· R200(3)(e) – The applicant has engaged in unauthorized study or work in Canada or failed to comply with previous conditions and a period of 6 months has not elapsed. See the complete section for exceptions to this exception (i.e., failure to comply with changes other than length of stay, indigent students and workers subsequently issued TRP’s)

It should be noted that the provision of R200(3)(e) is mandatory and has a punitive effect on those who have previously engaged in unauthorized work or study. This provision has been slightly ameliorated by the introduction with the recent amendment allowing for the issuance of a permit (200(3)(e)(iv) to overcome the effect of this provision.

Employers who have an LMO must ensure that an applicant that is selected and forwarded to an immigration officer to apply for a work permit meets the employment requirements set out in the LMO. The LMO will set out an NOC code for the employment position and the applicant must be able to satisfy the officer that it can perform the job duties under the NOC code to meet the requirements of R200(3)(a).

c. Supporting documentation for work permit application

To facilitate the work permit application the applicants are required to satisfy the officer that they meet the requirements of R200. The most important requirement in the case of an application supported by an a LMO is evidence supporting the applicants ability to fall within the job description and the NOC description.

The applicant should provide:

detailed resume with job description;
past employers reference letters;
employment appraisals or assessments;
awards and certifications;
educational and training documentation;
professional licenses, apprenticeship documents;
offer of employment or contract of employment from Canadian employer letter with terms of employment (must be consistent with LMO);
proof of funds;
passport copy for applicant and any dependants;
Labour Market Opinion or system file number from HRSDC;
fee of $175 payable to Receiver General for Canada or HPM receipt if paid within Canada;
form 1295, Application for a work permit form, duly completed and signed by the applicant;
form 5476, Use of Representative Form, if applicable;
two passport photos for each applicant with name and date of birth on back of each;
depending on the country of origin there may be police clearance requirements;
depending on the nature of the position, there may be medical requirements; and
any other documentation required by the processing post.

Where the applicant is making application under an LMO exempt category, sufficient documentation should be submitted to satisfy the officer that the applicant is eligible to apply under the exemption. The exemption should be clearly noted in the application and the exemption code should also be provided to the officer. All exemption codes can be found in the Foreign Worker Manual FW 1 at Para. 5.26.

In-Canada applicants for work permits will require much of the same documentation modified to fit their particular circumstances. The most important consideration is that they satisfy the in-Canada officer of their entitlement to their apply in-Canada for the work permit.

In-Canada applicants for work permits will not normally be required to meet medical or security requirements if they have been in Canada for periods in excess of 6 months. For example, where there is a work permit application under R206 for persons who have made claims for protection and are without means of support then it would be prudent to file documentation to show that the claim has been filed and that the persons has no means of support (i.e., on income assistance).


Arranged Employment and Temporary Status
Changes made to Regulation 82(2)(a)(iii) have had a significant effect on persons with temporary resident status in Canada who have filed applications for permanent residence. Regulation 82, the arranged employment regulation, awards 10 points to person with jobs waiting for them upon the grant of permanent resident status.
Under the old version of 82(2)(a)(iii), an applicant would be awarded 10 points for holding a work permit in Canada and if they were likely to accept and carry out that employment subsequent to landing, so long as a number of requirements were met, including that the work permit under which the applicant had temporary resident status in Canada was valid for at least 12 months after the date of the application for a permanent resident visa.
The new version of 82(2)(a)(iii) provides that:
82(2) Ten points shall be awarded to a skilled worker for arranged employment in Canada in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix if they are able to perform and are likely to accept and carry out the employment and
(a)

the skilled worker is in Canada and holds a work permit and

(iii)

the work permit is valid at the time an application is made by the skilled worker for a permanent resident visa as well as at the time the permanent resident visa, if any, is issued to the skilled worker,
…


The effect of this shift in policy is that persons awaiting landing in Canada are at risk of losing 10 points from their application if they are not landed within the term of their work permit.

If a skilled worker applicant applies through Buffalo, processing times can take up to around 30 months. As such, if that applicant is relying on the 10 points for arranged employment under 82(2)(a)(iii), the applicant must continuously extend that status for over three years.

The burden of having to obtain work permit extensions with HRSDC validations deters from waiting for landing from within Canada. In the alternative, an applicant can have an arranged employment application vetted to HRSDC under reg 82(2)(c), and then leave Canada to wait for processing.

Effectively, this change in policy has created a redundancy in work for HRSDC. Workers currently in Canada on HRSDC work permits who apply for permanent resident visas and need 10 arranged employment points have the options of:

renewing their HRSDC work permits as needed in waiting for landing;
leaving Canada and applying for HRSDC validation under 82(2)(c) of the same job that they already have a valid LMO in place for; or
renewing their HRSDC work permits and applying for arranged employment points under 82(2)(c).

In any event, HRSDC is being asked to repeatedly validate employment that could otherwise be validated under 82(2)(c) and temporary residents holding HRSDC work permits are forced into redundancy.

The question remains: why bother using 82(2)(a)(iii) to earn points when arranged employment points can be accumulated under 82(2)(c)? A safer strategy, when appropriate, might be to score the points on day one under 82(2)(c). That option grants the applicant the flexibility of choosing whether or not to remain in Canada while the applicant’s application for permanent residence is being processed, without having concerns about losing the points if the applicant’s work permit is not valid at the time of landing.