Area of Law: Immigration Law
Answer Number: 659
Who can work temporarily in Canada? eTA, NAFTA, Temporary Foreign Worker ProgramRegion: Ontario Answer Number: 659
If you are not a Canadian citizen or a permanent resident, then you are not automatically entitled to work in Canada. To work in Canada, foreign workers must be covered under the North American Free Trade Agreement (NAFTA), or they must obtain a work permit from Immigration, Refugees and Citizenship Canada (IRCC). It is illegal for someone who is not a Canadian citizen or a permanent resident to work in Canada without a work permit or without special permission under NAFTA. It is also illegal for an employer to hire someone who is not legally entitled to work in Canada.
Electronic Travel Authorization (eTA)
Beginning March 15, 2016 Foreign nationals from visa-exempt countries entering Canada by air, including those transiting through Canada, will require an Electronic Travel Authorization (eTA). Exceptions include U.S. citizens and travellers with a valid visa. Entry requirements for those coming to Canada by land and sea have not changed.
An eTA is electronically linked to the traveller’s passport and is valid for five years or until the passport expires, whichever comes first. Applications for eTA’s are done online on the IRCC website, and in most cases the authorization will be issued immediately after submitting the online form.
If you need an eTA, it is recommended that you apply for it when you plan your trip, as opposed to waiting until you are ready to travel. As well, you must travel to Canada with the passport you used to get your eTA. If you require an eTA, you can only apply for one person at a time. For example, for a family of three, you must complete and submit the form three times.
Applicants who receive their study or work permit on or after August 1, 2015 will automatically be issued an eTA along with their permit, while those who received their permit before that date will have to apply for an eTA.
Special rules apply to business workers under NAFTA. Business people who are citizens of the United States or Mexico can enter Canada on a temporary basis to trade goods, provide services, or participate in investment activities. Business people will be asked to show proof of their citizenship, and they must qualify in one of the following four categories:
- business visitors,
- intra-company transferees, or
- traders and investors.
Similar rules apply to business people who are Chilean citizens under the Canada-Chile Free Trade Agreement (CCFT). Other free trade agreements that make it easier for business people to enter another country for a short time include: Canada-Peru FTA, Canada-Columbia FTA, Canada-Korea FTA and the General Agreement on Trade Services. For more information on these programs, visit Global Affairs Canada. For more information about NAFTA, refer to other sections of Legal Line.
Work Permit under the Temporary Foreign Worker Program
A work permit gives workers permission to work at a specific job, for a certain time-period, and for a specific employer. Foreign workers who are not covered under NAFTA must apply for a work permit under the Temporary Foreign Worker Program (TFWP) to legally work in Canada. The TFWP distinguishes between two groups of workers:
1. Workers hired through Temporary Foreign Worker Program (TFWP)
- Based on employer demand to fill specific job
- Labour Market Impact Assessment (LMIA) required
- Employer- specific work permits
- Majority of workers are low-skilled
- Hired because no Canadians are available
- Employers pay a $1,000 LMIA processing fee for each position requested
2. Workers hired through the International Mobility Program (IMP)
- Not based on employer demand
- No LMIA required
- Usually open permits
- Majority are high skill / high wage
- Hired because deemed to add value to Canada’s economy and culture
- Come from highly developed countries
Regardless of which category the worker is applying under, work permit applicants must meet certain basic criteria, as well as additional criteria that may be required depending on where the application is made.
The basic eligibility requirements that all work permit applicants must meet are:
- satisfy an Officer that they will leave Canada at the end of their employment;
- show that they have enough money during their stay in Canada to take care of themselves and their family members and to return home;
- be law-abiding and have no record of criminal activity (they may be asked to provide a Police Clearance Certificate);
- not be a danger to the security of Canada;
- be in good health and complete a medical examination, if required;
- not intend to engage in employment with an employer on the list of ineligible employers;
- not have worked in Canada for one or more periods totalling four years after April 1, 2011, and
- provide any additional documents requested by the Officer to establish admissibility.
Foreign workers who apply while they are outside Canada will submit the application to a visa office outside Canada, and there are no further eligibility requirements.
Foreign workers who submit their applications from inside Canada, will only be eligible to do so if:
- you, your spouse or parents have a valid study or work permit;
- you are a postgraduate of a Canadian university, community college, trade/technical school (or other eligible school or institution);
- you have a temporary resident permit that is valid for six months or more; and
- you are in Canada because you have already applied for permanent residence from inside Canada.
Foreign workers who submit their applications while entering Canada, will only be eligible to do so if:
- you are temporary resident visa exempt;
- you already hold a valid medical certificate, if it is required for your job;
- your job does not need a Labour Market Impact Assessment (LMIA) from Employment and Social Development Canada (ESDC); or you hold an LMIA from ESDC.
Once a person has met the eligibility requirements, to apply for a work permit, they must then complete the application and submit the appropriate documents depending on where they are applying from.
New Global Skills Strategy
Immigration, Refugees and Citizenship Canada (IRCC) recently introduced the Global Skills Strategy for employers hiring temporary foreign workers.
The Global Skills Strategy is an initiative to make is easier for Canadian businesses to grow by attracting foreign talent. As part of the Temporary Foreign Worker Program (TFWP), it establishes a new Global Talent Stream which offers a faster way to receive a work permit for certain types of foreign workers.
The Strategy includes two main components:
- the Global Talent Stream program for fast-tracking applications, and
- new work permit exemptions for specific workers
Eligibility for the Global Talent Stream
Employers may be eligible under the Global Talent Stream program, if the employer is:
- Category A – Referred to the Global Talent Stream by a designated Employment and Social Development Canada (ESDC) partner, and are hiring someone with unique and specialized talent. Unique and specialized talent means someone with:
- Advanced knowledge of the industry;
- An advanced degree in an area of specialization of interest to the employer; or
- A minimum of five years of experience in the field of specialized experience; and
- A highly paid position.
- Category B – Hiring a worker in a position on the Global Talent occupations list.
Work Permit exemptions
Under the Global Talent Stream program, two new categories of workers are now exempt from the requirement to obtain a work permit:
- Workers that are within the National Occupational Classification (NOC) category 0 (executive or managerial) or NOC A (professional) and are coming to Canada to work for 15 days, once every six months, or for 30 days, once every 12 months.
- Researchers working on research projects at a publicly-funded degree-granting institution or affiliated research institution coming to Canada for 120 days, every 12 months.
Employees who are eligible
Employers can hire workers under the new Global Talent Stream program in one of two categories.
- Workers must be Labour Market Impact Assessment (LMIA) exempt and:
- are applying from outside Canada;
- the job is employer-specific and either skill type 0 (managerial) or skill level A (professional) of the National Occupation Classification; and
- the employer has submitted an offer of employment using the Employer Portal and paid the employer compliance fee,
- Employers have a positive LMIA for an employer-specific job, which has indicated eligibility though the Global Talent Stream of the Temporary Foreign Worker Program.
The two-week processing standard also applies to spouses or common-law partners and dependents who accompany the workers to Canada. They must apply at the same time as the worker.
Labour Market Benefits Plan
Employers hiring skilled workers through the Global Talent Stream must work with ESDC to develop a Labour Market Benefits Plan. This plan must outline:
- the positive benefits that foreign talent will bring to the Canadian labour market, and
- the activities that the employer will undertake to encourage job creation, skills and training investments.
How to apply
To apply under the Global Skills Strategy and receive the expedited two-week application processing time, once the employer has submitted an offer of employment, the worker must:
- submit a complete application online, from outside of Canada
- identify which category they are applying under
- submit a medical exam and biometric fee (where required)
More information about the Global Skills Strategy and how to apply is available from IRCC.
Work Permit – LMIA required
If you are required to get a Labour Market Impact Assessment (LMIA), formerly known as a Labour Market Opinion (LMO), and sometimes called a “Confirmation”, your employer must apply for it from ESDC. An LMIA is submitted with the work permit application to Immigration and it enables the Immigration Officer to determine whether the employment of the foreign worker is likely to have a positive or negative impact on the labour market in Canada. A positive LMIA confirms that there is no Canadian or permanent resident available, and allows the employer to hire the foreign worker.
If you do need to obtain an ESDC Confirmation, your employer must contact ESDC and provide details about the job by completing a job offer form. Also, the government requires employers to fulfill minimum advertising requirements before it accepts an application for a Labour Market Impact Assessment.
ESDC will then consider several factors before giving advice to the Immigration Officer, such as whether the employer made a reasonable effort to hire or train a Canadian but a qualified worker was not available or could not be trained in time, whether the conditions of the position are attractive to Canadian workers, and whether allowing a foreign worker to take the job will benefit Canada or the company.
Work Permit – LMIA NOT required
There are certain types of workers who are exempt from obtaining an ESDC Confirmation, although they do still require a work permit. These include: entrepreneurs who will provide significant benefit to Canadians; participants in exchange programs; co-op students; religious or charitable workers; and people who need to support themselves while in Canada for special reasons such as the refugee determination process.
If an LMIA from ESDC is not required, in its place you will need:
- proof of identity in the form of a valid passport or travel document that guarantees that you will be able to return to the country where it was issued; and
- if you are not a citizen of the country in which you are applying, proof of your present immigration status in that country.
Your employer will need to submit information about the business or organization, and pay a fee. If you are unsure if an ESDC Confirmation is needed in your specific circumstances, you should consult an immigration lawyer.
Once a work permit application has been submitted, the next step in the process is for the Immigration office to approve the employee. Employees will be contacted by a Canadian visa office. The employee may be asked to attend an interview or to send information by mail. The employee may also be asked to have a medical exam by a designated physician, which the employee will have to pay for. If the employee qualifies and has all the necessary documents, then the application is approved and the work permit will be issued.
The processing fee for a work permit is $155 per person, and is non-refundable. Visitors are generally not allowed to work while they are in Canada. If a visitor finds a job, they will have to apply for a work permit while they are in Canada.
Religious Workers are the only group of persons who may work in Canada on visitor records, provided that in the remarks section of their visitor record it states that they have been granted an allowance to perform religious duties.
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For legal advice and assistance in applying to work in Canada, contact our preferred Immigration lawyers to see who’s right for you:Green and Spiegel
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