Work Permits and NAFTA
Work permits are generally required by foreign workers who wish to enter Canada to work on a temporary basis. Foreign workers admitted to Canada not only help filling labor market shortages and provide other economic opportunities for Canadians, but also help in job creation and the transfer of new skills and knowledge. In order to work in Canada on a temporary basis, foreign skilled workers must have a temporary offer of employment from a Canadian employer with few exceptions. Canadian immigration authorities work with the Department of Employment and Social Development Canada (ESDC) to ensure that the entry of foreign workers will not adversely affect employment opportunities for Canadian citizens or permanent residents and ensures that Canadians have the first opportunity at available jobs. Therefore, most foreign workers needs LMIA and work permit to work in Canada. However,some foreign national may work in Canada without a work permit.
Jobs that DO NOT Require a Work Permit in Canada
All military personnel who have been given orders to come to Canada do not need a work permit as long as they are serving a country that is designated under the Visiting Forces Act. For a list of these countries.
Athletes and Team Members:
Foreign-born professional or amateur athletes may participate individually or as a team in Canadian sporting events without having to get a work permit. Coaches, trainers and other important team members are also exempt from the work permit requirement.
Spouses of professional athletes working in Canada must have a work permit but are exempt from the LMIA requirement.
This category includes: guest speakers for specific events, commercial speakers and seminar leaders. The speaking engagements for all of the above must not last for more than 5 days. The following public speakers, however, must get a work permit and LMIA before entering Canada:
- Commercial speakers who are hired by a Canadian business to provide training services.
- Guest athletics instructors coming to teach weekend seminars.
Individuals, committees and support staff who are organizing a convention or conference do not need a work permit to work in Canada. Events covered by this exemption include:
- Association meetings
- Corporate meetings
- Trade shows or exhibitions
- Consumer shows or exhibitions
Note: This exemption does not apply to “hands-on” workers such as those who provide audio-visual services, installation and dismantling services, show decorating services, or exhibit building services.
Further, a convention organizer will have to obtain a work permit if he/she is organizing an event for an organization that:
- Is actively doing business in Canada
- Is centered in Canada
- Has a subsidiary branch in Canada.
A person will be exempt from the work permit requirement if his/her work consists mainly of: preaching doctrine, presiding at religious events or providing spiritual guidance.
Peoples who do not perform the work above but are engaged in religiously based community service activities must have a work permit but do not need to get a LMIA.
Persons seeking entry to Canada under this category must be able to provide evidence concerning:
- The genuineness of their offer of religious employment
- The genuineness of the religious group that is offering the job
- The ability of the clergyman to perform clerical duties for a congregation of the relevant religious group
Note: In some cases, visa officers may require further evidence in order to assess the genuineness of the religious job being offered.
Judges, Referees and Similar Officials
Judges, referees and similar officials may work in Canada without a work permit if they are involved in:
- An international amateur sports contest
- The contest should be organized by an international amateur sporting association and hosted by a Canadian organization.
- An international cultural or artistic event or contest
- An animal or agricultural contest
Note: Referees for professional sporting leagues are normally required to obtain a work permit and a LMIA. However, referees in certain professional sports leagues such as the NHL, MLB and NBA are exempt from this requirement due to specific reciprocal agreements between Canada and the USA.
Examiners and Evaluators
Under this category, successful academic professionals who guide students and review their work will be allowed to enter Canada without a work permit in order to review their student’s theses and papers. This group also includes professors and researchers who are entering Canada in order to evaluate academic university programs or research proposals.
Expert Witnesses or Investigators
A worker does not need to obtain a work permit to enter Canada if he/she:
- Is entering Canada to conduct surveys or analyses that will be used as evidence before a regulatory body, tribunal or court of law
- Is entering Canada to serve as an expert witness before a regulatory body, tribunal or court of law
Civil Aviation Inspectors
Flight operations inspectors and cabin safety inspectors who enter Canada temporarily while inspecting the safety procedures on commercial international flights are exempt from the work permit requirement. Workers under this group must be employed by a recognized aeronautics safety authority and must have valid documentation establishing that they are aviation inspectors.
Aviation Accident or Incident Inspectors
Accredited representatives or advisers that aid in the investigation of aviation accidents or incidents under the authority of the Canadian Transportation Accident Investigation and Safety Board Act are exempt from the work permit requirement.
Emergency Service Providers
Persons who come to Canada for the purpose of rendering services in times of emergency are exempt from the work permit requirement. These persons may be:
- Medical teams
- Provincially licensed insurance adjusters
The emergencies may be medical, industrial, environmental or the result of a natural disaster.Foreign insurance adjusters must be able to prove that they meet all relevant provincial regulatory requirements in order to be admitted to Canada without a work permit.
Workers may continue working in Canada under the conditions of an expired work permit as long as they have applied for a new permit before the initial work permit expired and still live in Canada. If the new application for a work permit is rejected, the worker will have to leave Canada.
A person may work on a farm without a work permit as long as:
- The farm work is on a volunteer basis
- The person’s primary reason for coming to Canada was something other than the farm work (such as tourism or visiting family/friends)
- The farm is non-commercial. Non-commercial farms are generally defined as: farms where the owner provides much of the capital and labor for the farm and where the farm produce is used to provide for the basic needs of the owner’s family, with little extra to sell for profit.
Work Permit Required but Exempt from LMIA (LABOR MARKET IMPACT ASSESSMENT)
In general terms, any foreign worker who is not covered by an exemption from a Work Permit is required to obtain a Labor Market Impact Assessment from ESDC prior to qualifying for a Work Permit. However, some foreign workers are exempt from this requirement, and can apply for their Work Permits directly at a visa post or Canadian Port of Entry. The adjudication of these applications can be instant, as applicants are able to present their documents directly at a Port of Entry or visa post and receive approvals on an immediate basis. Work Permits granted under an exemption from Labor Market Impact Assessment include:
Workers covered by international agreements: Under the NAFTA treaty, citizens of Canada, United States and Mexico may work, conduct business or engage in investment activities in any of the 3 countries. Business people covered under NAFTA do not need a LMIA, however, are still required to comply with the general provisions of temporary entry to Canada.
- Exchange programs:
These programs can include youth exchange programs, teacher exchange programs and other joint programs.
- Spouses or common-law partners:
- spouses and common-law partners of certain foreign students who are enrolled in full time studies in Canada.
- Spouses and common-law partners of certain skilled foreign workers.
- Entrepreneurs and workers transferred within a company
This includes workers who will greatly benefit Canadians or permanent residents by working in Canada.
This includes researchers, guest lecturers, visiting professors and others.
- Co-op students
These are international students studying in Canada and doing co-op work placements or internships as part of their study program.
- Person having Refugee Claim in process in Canada
Person waiting on a refugee claim.
Work Permits Needs A LMIA
If the foreign worker doesn’t qualify for an exemption from obtaining a Work Permit or Work Permit exempt from Labor Market Impact Assessment,then employers will have to obtain LMIA and can present his application at a visa post abroad or Port of Entry. Labor Market Impact Assessment applications can be a time consuming exercise. Employers may be required to advertise the position, interview potential candidates, keep detailed records and only then be able to present an application for recruiting a foreign worker. ESDC provides a Labor Market Impact Assessment at the request of the employer. The issuance of a positive opinion is based on the “Canadians first policy” which entails an analysis by ESDC of whether local workers are available to fill a specific job vacancy. The employer requesting the Labor Market Impact Assessment must demonstrate the need for the foreign worker and that it has made reasonable efforts to hire local candidates, including appropriate advertisement and other hiring efforts. Applications for Labor Market Impact Assessment require knowledge and expertise. Employers should be careful not to misrepresent any information in the applications. ESDC may refuse the application if it finds that the wages or working conditions are lower than those in the market place for similar positions, or if it is determined that Canadian residents can fill the vacancy, or if the employer has not conducted a search for qualified individuals in Canada, or if the employment of the foreign national is likely to adversely affect a settlement of a labor dispute, or for any other valid reason.
an application from the employer requires the following:
- job title
- a description of job responsibilities
- a description of the job requirements including education, experience or other specific skills
- salary, benefits, hours of work, vacation (which must be sufficient to attract local workers and does not undercut the local job market)
- details concerning the employer’s workplace, such as number of employees and number of other foreign workers employed by the employer
- efforts of the employer to locate Canadian citizens or permanent residents who could have filled the position (including evidence of such efforts such as posting in newspapers or electronic job boards)
- efforts by the employer to train Canadian citizens or permanent residents to fill the position (if training cannot be accomplished under 6 months or so, then HRSDC will likely give a favorable opinion on this factor)
- Depending on the circumstances, a Canadian employer should also include the following information:
- how a foreign worker will transfer skills and knowledge to Canadians
- how a foreign worker will create job opportunities for Canadians
- if a foreign worker is to join a union, whether or not the union has been consulted and the results of those consultations
- if there is a labor dispute, whether or not hiring a foreign worker will affect that labor dispute (HRSDC will not confirm a position if it will affect a labor dispute)
Applying work permit
After receiving the LMIA, Person can apply for the work permit. The requirements for the various application locations are summarized below.
Applying at a visa office outside of Canada
The following individuals must apply for a work permit from a visa office outside of Canada:
- Person who require a temporary resident visa (TRV) in order to enter Canada.
- Person who require a medical exam in order to enter Canada.
- International youth exchange program participants. This requirement does not apply to citizens or permanent residents of the USA.
- Seasonal agricultural workers.
- Live-in caregivers.
Applying at a Canadian port of entry
An applicant can apply at a Canadian port of entry if they meet all of the following requirements:
- All national or permanent resident of the U.S., Greenland or Saint-Pierre and Miquelon regardless of whether their job falls with the Temporary Foreign Worker Program or the International Mobility Program.
- Person who do not required LMIA and exempt from the requirement for a temporary resident Visa.
Applying from within Canada
The following individuals may apply for a temporary work permit from within Canada.
- Individuals living in Canada and holding a valid study or work permit.
- Individuals whose spouse or parents have a valid Canadian study or work permit.
- Individuals who have graduated from a program at: designated learning institution in Canada.
- Individuals that are in Canada because they have already applied for permanent residence from within Canada.
- Refugee claimants and individuals subject to an unenforceable removal order.
- Permanent residence applicants living in Canada who are members of the following classes:
- Live-in Caregiver.
- Spouses or Common-Law Partner.
- Protected Persons.
- Persons filing an application on compassionate and humanitarian grounds.
- Individuals holding work permits that were: authorized at a Canadian mission abroad and NOT issued at a Canadian port of entry.
- Mexican citizens admitted to Canada as temporary residents who are applying to work under NAFTA.
- USA citizens admitted to Canada as temporary residents who are applying to work under a NAFTA professional or intra-company transferee program.
- Foreign workers who have written permission from the Canadian government to work at a foreign embassy, consulate or high commission in Canada.
For further information About Applying for LMIA or work permit contact us.