Applying for a Work Permit
Written by Henry J. Chang
Updated October 25, 2010
When to Apply
Before Entering Canada
According to IRPR 197 of the Immigration and Refugee Protection Regulations ("IRPR"), SOR/2002-227, a foreign national may apply for a work permit at any time before entering Canada (i.e. at a Canadian Consulate abroad).
When Entering Canada
According to IRPR 198 a foreign national may also apply for a work permit when entering Canada if the foreign national is exempt from the requirement to obtain a temporary resident visa. However, this is not permitted if:
After Entering Canada
According to IRPR 199, a foreign national may apply for a work permit after entering Canada if they
- The foreign national requires a determination from Human Resources Skills Development Canada ("HRSDC") under IRPR 203, unless:
- HRSDC has provided an opinion in respect of an offer of employment (other than seasonal agricultural employment or employment as a live-in caregiver to the foreign national, or
- The foreign national is a national or permanent resident of the United States or is a resident of Greenland or St. Pierre and Miquelon;
- The foreign national does not hold a medical certificate that they are required to hold under subsection 30(4); or
- The foreign national is a participant in an international youth exchange program, unless they are a national or permanent resident of the United States or their application for a work permit was approved before their entry into Canada.
Where to Apply
If you are required to apply for a work permit before entering Canada, you will need to apply at a Canadian consulate having jurisdiction over your place of residence. However, if you are temporarily in a third country in lawful status, you may also be able to apply at the Canadian consulate having jurisdiction over that area.
Where HRSDC Confirmation Required
The general procedure for seeking a work permit is to: (a) obtain a job offer in Canada, (b) obtain a job offer confirmation (also known as a Labour Market Opinion ("LMO")) from HRSDC (which assesses the effect of the foreign worker on the labour market), and (c) upon obtaining a confirmation from HRSDC, apply to Citizenship and Immigration Canada ("CIC") for a work permit. In practice, this is the least desirable method for obtaining a work permit. Wherever possible, foreign workers should try to fall within one of the available exemptions from HRSDC confirmation. However, assuming that this is not possible, the following procedures should be followed.
Where no exemption applies, the immigration officer must determine (on the basis of an opinion provided by HRSDC) if the job offer is genuine and if the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada. According to IRPR 203(3), the opinion provided by HRSDC must be based on the following factors:
- Hold a work permit;
- Are working in Canada under the authority of IRPR 186 and are not a business visitor within the meaning of IRPR 187;
- Hold a study permit;
- Hold a temporary resident permit that is valid for at least six months;
- Are a family member of a person described in any of paragraphs (a) to (d);
- Are in a situation described in IRPR 206 [a foreign national who cannot support himself/herself without working and: (i) has made a claim for refugee protection that has been referred to the Refugee Protection Division but has not been determined, or (ii) is subject to an unenforceable removal order] or IRPR 207 [a foreign national who: (a) is a member of the live-in caregiver class, (b) is a member of the spouse or common-law partner in Canada class, (c) is a protected person within the meaning of subsection 95(2) of the Immigration and Refugee Protection Act ("IRPA"), (d) has applied to become a permanent resident and the Minister has granted them an exemption under section 25 of the IRPA (humanitarian and compassionate considerations), or (iv) is a family member of a person described in any of paragraphs (a) to (d)];
- Applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;
- Are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship -- being a country party to that Agreement -- grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or
- Hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.
According to IRPR 203(4), where the foreign national intends to work in the Province of Quebec, the opinion provided by HRSDC must be made in concert with the equivalent labour authority of that Province.
Exemptions from HRSDC Confirmation
Authorization for this exemption appears at IRPR 204(a) [agreements between Canada and a foreign country] and IRPR 204(b) [agreements between one of more provinces and a foreign country], the most important being:
- Whether the employment of the foreign national is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;
- 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;
- Whether the employment of the foreign national is likely to fill a labour shortage;
- 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;
- Whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and
- 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.
According to IRPR 204(c), where a province has entered into a provincial nominee agreement, a person who has been nominated by the province for permanent residence and has a job offer from an employer based in that province, may be issued a work permit without a job confirmation from HRSDC. The work permit application must be accompanied by a letter from the provincial government confirming that the person has been nominated and that the nominated individual is urgently required by the provincial-based employer who has made the job offer.
According to IRPR 205(a), an exemption from HRSDC confirmation exists for a foreign national who intends to perform work that:
- Professionals, traders, investors, and intracompany transferees under the North American Free Trade Agreement ("NAFTA");
- Professionals under the General Agreement on Trade in Services ("GATS") [intracompany transferees under GATS are admitted under IRPR 205, which is discussed below];
- Airline personnel entering pursuant to bilateral air transport agreements;
- Foreign workers entering under the Canada-Chile Free Trade Agreement; and
- Temporary workers entering Canada to work pursuant to a film co-production agreement.
General Significant Benefit
According to the Immigration Manual, generally speaking officers should be reluctant to issue a work permit without an HRSDC confirmation that the foreign worker's impact on the Canadian labour market will be either neutral or positive. However, there are instances where a confirmation is not available, a specific exemption is not applicable, but the balance of practical considerations argues for the issuance of a work permit in a time frame shorter than would be necessary to obtain an HRSDC opinion. This exemption is intended to give the immigration officer flexibility to respond in these situations.
Officers will look at the social/cultural benefit of admitting persons of international renown, examining whether a person's presence in Canada is crucial to a high-profile event, and whether circumstances have created urgency to the person's entry. Where entry into the labour market is contemplated, all practical efforts to obtain an HRSDC confirmation should be made before issuing a work permit until this general exemption. Clearly, this general exemption for significant benefit will not be available in most cases.
Entrepreneurs and Self-Employed Candidates Seeking to Operate a Business
If a permanent resident applicant has met the definition of entrepreneur or self-employed and has already been approved under one of these permanent residence categories, he or she may be issued a work permit if there are compelling and urgent reasons to admit the person before permanent resident processing is completed. They must demonstrate that their admission to begin establishing or operating their business would generate significant economic, social, or cultural benefits or opportunities for Canadian citizens or permanent residents.
Where a person has applied for a work permit to operate a business or be self-employed simultaneously with an application for permanent residence, they must meet the significant benefit requirements described in IRPR 205(a) . According to the Immigration Manual, it is expected that it would be a rare applicant who could satisfy an officer that his or her entry would provide a significant benefit before his or her eligibility for permanent residence has been assessed. Similarly, where the applicant does not intend to reside permanently in Canada, it may be difficult to show significant benefit to Canada if profits and economic spin-offs generated by the enterprise do not remain in Canada.
However, special considerations apply when the applicant is being considered by a provincial government for nomination as a permanent resident. Many provinces have indicated a growing interest in having potential provincial nominees be issued work permits to undertake entrepreneurial activities prior to their actual nomination. A letter from the provincial government confirming that there would be a benefit to the province (and therefore Canada) by permitting the foreign national to carry out business activity is sufficient to establish significant benefit. Such a work permit would be issued for two years and would not be renewable. It is presumed that within that period the provincial government will decide whether to nominate the individual and the foreign national's subsequent renewal application could be supported by the fact of the nomination.
An exemption for intracompany transferees appears in IRPR 205(a) . This exemption provides for the transfer of an employee from the foreign to the Canadian office of an international company. It closely tracks the L-1 classification in the United States. It is also virtually identical to the intracompany transferee provisions that appear in the NAFTA and in the Canada-Chile Free Trade Agreement, which are covered by IRPR 204.
Although this exemption was previously only available to executives and managers, it has since been modified to include specialized knowledge workers. Previously, only NAFTA and the Canada-Chile Free Trade Agreement permitted specialized knowledge workers to enter as intracompany transferees. In order to qualify, the foreign national must:
- Would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents;
- Would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries;
- Is designated by the Minister as being work that can be performed by a foreign national on the basis of the following criteria, namely,
- The work is related to a research, educational or training program, or
- Limited access to the Canadian labour market is necessary for reasons of public policy relating to the competitiveness of Canada's academic institutions or economy; or
- Is of a religious or charitable nature.
The term "doing business" means regularly, systematically, and continuously providing goods and services and/or services by a parent, branch, subsidiary, or affiliate in Canada and the foreign country. It does not include the mere presence of an agent or office in Canada; a company with no employees, which exists in name only, and is established for the express purpose of facilitating the entry of intracompany transferees would not qualify. Also, associations between companies based on ownership of a small amount of stock in another company, an exchange of products and services, licensing and franchise agreements, membership on boards of directors, or the formation of consortiums or cartels do not create an affiliate relationship.
All persons included in the Senior Executive and Manager category should be in National Occupational Classification ("NOC") Group 0 applying to management occupations. Only those persons whose positions are defined as Senior Managers who plan, organize, direct and control a business should be included. This exemption is not available to persons whose positions are more accurately defined as middle managers. As a result:
- Be coming to Canada to work for a parent/subsidiary/affiliate/branch of an international company (i.e. the organization either is or will be doing business in Canada and the foreign country);
- Have been continuously employed by the international company outside of Canada for at least one year within the last three years;
- Have been employed abroad during the above period in an executive, managerial, or specialized knowledge capacity; and
- Be seeking admission to Canada to work for a parent/subsidiary/affiliate/branch of the same international company in a similar position as the position abroad.
Typically, Senior Managers:
- NOC Groups 0013 to 0016 should be included;
- NOC Groups 01 to 09 may be included depending upon the responsibility of the position and the impact on employment opportunities for Canadians.
Excluded are persons who spend the majority of their time in the production of a product or the delivery of a service even though they may have some managerial responsibilities. The foreign national's responsibilities should be primarily managerial.
Specialized knowledge workers must demonstrate "specialized knowledge". This is special knowledge an individual has of a company's product or service and its application in international markets or an advanced level of knowledge or expertise in the organization's processes and procedures (product, processes, and procedures can include research, equipment, techniques, management, or other interests). This is not the same thing as a test of the labour market; it is possible to establish specialized knowledge even where there are similarly situated Canadian workers available. However, it must not be general knowledge held commonly throughout the industry. Specialized knowledge need not be proprietary or unique, but it should be uncommon.
Start-up companies (carrying on business in Canada for less than one year) are subject to the following additional requirements:
- Supervise and control the work of:
- Other managers and supervisors;
- Professional employees, or
- Manage an essential function within the organization;
- Have the authority to hire and fire, or recommend these or other personnel actions.
In the case of Executives and Managers, the company must demonstrate that it will be large enough to support executive or management function. In the case of specialized knowledge workers, the company must demonstrate that it is expected to be doing business and the work must be guided and directed by management at the Canadian operation.
Initial work permits for start-up intracompany transferees are limited to one year. For renewals, evidence of the following should be provided:
- Generally, the company must secure physical premises to house the Canadian operation, particularly in the case of Specialized knowledge. However, at times, in cases of a Senior Manager or Executive, it would be acceptable that the address of the new start-up has not been secured yet – for example, when it is counsel’s address until a time that the executive can purchase or lease a premise.
- The company must furnish realistic plans to staff the new operation.
- The company must have the financial ability to commence business in Canada and compensate employees.
Emergency Repair Personnel
Emergency repair personnel are persons whose admission is required in Canada to carry out emergency repairs to industrial equipment in order to prevent disruption of employment. They should be in possession of a letter, telex, or fax indicating that the nature of their work is an emergency.
Section 205(b) allows foreign workers to take up employment when reciprocal opportunities are provided for Canadian citizens to take up temporary employment abroad. Entry under reciprocal programs should result in a neutral labour market impact.
- The Canadian and foreign companies still have a qualifying relationship;
- The new office has engaged in the continuous provision of goods or services for the past year; and
- The new office has been staffed.
Charitable or Religious Work
According to IRPR 205(d), persons undertaking charitable or religious work do not need a confirmation from HRSDC. This exemption applies to charitable or religious workers who are carrying out duties for a Canadian religious or charitable organization. It does not apply to religious workers who are entering to preach doctrine or minister to a congregation, as these people may be admitted without work permits pursuant to IRPR 186(l)
A non-profit organization is not necessarily a charitable one for the purpose of this exemption. A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions. The following conditions must be met:
- General Provisions - Although there are formally recognized reciprocal programs such as the DFAIT-administered International Youth Exchange Programs (described below), the general provision permits the admission of foreign workers in other cases where reciprocity can be demonstrated by the Canadian employer (or specific program administrator). Academic institutions may initiate exchanges as long as they are reciprocal, and licensing and medical requirements (if applicable) are met. The onus is on the institutions and/or individuals to demonstrate that reciprocity exists.
- The International Experience Canada ("IEC") Program - Previously known as the International Youth Programs and the International Exchange Programs, the IEC program allows students and young workers to work temporarily in another country where they acquire new skills, gain exposure to the values of the host country, and develop a better understanding of other cultures. The programs are managed by ACEE/DFAIT, who negotiate the terms of individual agreements and determine the annual numerical limits for the admission of individuals. All foreign nationals participating in these programs, except citizens of the United States, should apply outside Canada for their work permits. Applicants must be citizens of countries with which Canada holds these reciprocal agreements and must apply at the consulate responsible for their country (i.e. Australians must apply in Sydney, Australia). Citizens of the United States may apply for their work permits at any consulate or port of entry. Inland offices may not issue an initial work permit but may extend a valid work permit provided the applicant is still within the allowable duration period.
- Academic Exchanges - CIC recognizes that opportunities exist for Canadians to take similar positions in foreign educational institutions and therefore allows work permits in the situations described below:
- Guest Lecturers;
- Elementary and Secondary School Teachers; and
- Visiting Professors.
- Canadian World Youth Program - This is an international exchange involving young people from a number of foreign countries whose brief living and working experience in Canada provides them and their Canadian hosts with a better appreciation of different cultures. Participants normally spend between 89 and 110 days in Canada and "work" full-time for the entire period at a variety of jobs, including farm work and social/community services (i.e. institutions for the aged or handicapped). The "work" performed is strictly voluntary. Participants receive unrestricted work permits and therefore require a medical examination.
- Cultural Agreements - Persons entering Canada to take employment under the terms of cultural agreements between Canada and the following countries: Belgium, Brazil, Germany, Italy, Japan, Mexico, France, and China.
Work Related to Research, Educational, or Training Programs
The following academic or training programs and research activities are designated as work that can be performed by a foreign national based on the criteria listed in IRPR 205(c)(i):
- The individual will not receive remuneration, other than a small stipend for living expenses;
- The organization or institution that is sponsoring the foreign worker will not, itself, receive direct remuneration from any source on behalf of, or for, the services rendered by the foreign worker; and
- The worker goes above and beyond normal work in the labour market, whether remunerated in some manner or not, for example:
- Organizations that gather volunteer workers to paint or repair houses of the poor may qualify, provided that the work would not otherwise be done (i.e. if the recipients of this work are not able to hire a professional or do the work themselves).
- L'Arche, which relies on people to live full-time in a group home with people who have developmental disabilities (workers in these homes are remunerated but they are committed to taking care of the disabled people almost on a 24-hour basis).
- Persons who are giving their time to the community or religious organizations in a position that would not represent a real employment opportunity for Canadians or permanent residents (such work would entail a requirement to be part of, or share the beliefs of, a particular religious community in which they are working.)
In cases such as these, the letter provided by the educational institution should establish clearly that the work is a normal component of the academic program which all participants are expected to complete in order to receive their degree, diploma or certificate. The most commonplace example would be undergraduate co-op programs at universities and colleges. An open work permit should be issued with the academic institution listed as the employer. In cases where several work periods are necessary throughout the academic course (e.g., five work terms and eight study terms for a degree), the work permit should be valid for the same period as the study permit.
This provision applies to both publicly- and privately-funded institutions. However, it is limited to persons who hold study permits, except for the case of minors in high school who do not require study permits but who require work experience in order to graduate. The provision only applies for course requirements of Canadian institutions. A foreign student who comes to Canada for a year or a term may qualify under this exemption if the employment forms an essential and integral part of their course of study in Canada. If the employment is only a requirement of the foreign institution, this provision does not apply.
Students (who hold study permits) attending career colleges or language schools (e.g. ESL/FSL) may also be eligible under this exemption, if there is a work practicum component to their study program. Some of the common elements to look for when these students apply under this exemption include the following:
- Foreign students, excluding medical interns and externs and resident physicians (but not those in the field of veterinary medicine), whose intended employment forms an essential and integral part of a course of study in Canada and this employment has been certified as such by a responsible academic official of the training institution and where the employment practicum does not form more than 50% of the total program of study;
- Special program students under the sponsorship of the Canadian International Development Agency ("CIDA") when the intended employment is part of the student's program arranged by CIDA;
- Persons coming to Canada to work temporarily for the International Development Research Centre of Canada;
- Persons sponsored by Atomic Energy of Canada Ltd, as distinguished scientists or post-doctoral fellows;
- Persons sponsored by the National Research Council of Canada ("NRC") and the Natural Sciences and Engineering Research Council of Canada ("NSERC") as distinguished scientists or scholars coming to participate in research for the NRC and the NSERC;
- Persons coming from Commonwealth Caribbean Countries for training under the terms of the Official Development Assistance Program administered by the Canadian International Development Agency; and
- Holders of research chair positions at a Canadian university, nominated for their research excellence, and partially or wholly funded by federal or provinicial governments. This includes holders of Canada Research Chair ("CRC") positions AND Canada Excellence Research Chair ("CERC") positions.
Public Policy, Competitiveness, and Economy
Authorization for this exemption appears at IRPR 205(c). The following situations fall under this exemption:
- Written evidence from the school that a work component is required for successful completion of the course of study (such evidence may be in the form of a letter from the school, or a copy of the school’s curriculum);
- Details of the work to be performed. Normally, the work will be supervised, and involve a specific number of hours per term or semester. The work may be unpaid at times. The school should be in a position to name the businesses or types of businesses involved in this kind of study/work program; and
- The work practicum cannot comprise more than 50% of the total program of study.
- Spouses or Common-Law Partners of Skilled Workers
Spouses or common law partners of skilled workers coming to Canada as temporary foreign workers may be granted unrestricted work permits without first having a confirmed job offer. In order to qualify, the following requirements apply:
Spouses or common-law partners who have been nominated for permanent residence by a province will be entitled to unrestricted work permits for the duration of the provincial nominee principal applicant, irrespective of the skill level of the principal applicant's occupation.
The spouse's or common-law partner's work permit may be issued for a period that ends no later than the work permit of the principal foreign worker, or for the duration of employment of the principal worker. The spouse or common-law partner may be issued an "open" permit (i.e. not job-specific).
- The principal foreign worker must be doing work that is at a level that falls within NOC Groups 0, A, or B (these skill levels include management and professional occupations and technical or skilled tradespersons); and
- The principal foreign worker must either hold a work permit that is valid for a period of at least six month's duration or, if working under the authority of IRPR 186 without a work permit, must present evidence that they will be working for at least six months.
- Spouses or Common Law Partners of Foreign Students
Spouses or common-law partners of certain foreign students are allowed to accept employment in the general labour market without the need for HRSDC confirmation. This exemption is intended for spouses who are not themselves full-time students. These provisions apply only to students engaged in full-time studies at a university, community college, CEGEP, publicly-funded trade/technical school, or at a private institution authorized by provincial statute to confer degrees. Applicants must provide evidence that they are:
Spouses or common-law partners are eligible for open or open/restricted work permits, depending upon whether they have passed a medical examination. There is no need for an offer of employment. Work permits may be issued for the validity date to coincide with the spouse's study permit, or the period of time the spouse is entitled to work after graduation.
- The spouse or common-law partner of a holder of a study permit who is attending (on a full-time basis) a post-secondary institution, which is also a publicly-funded degree or diploma granting institution; or
- The spouse or common-law partner of a person who has a valid work permit to work at a job related to their course of study, after graduation.
- Post-Graduate Employment
The Post-Graduation Work Permit Program ("PGWPP") allows students who have graduated from a participating Canadian post-secondary institution to gain valuable Canadian work experience. Students may accept employment related to their education for a maximum of three years, with no geographical restrictions, following successful completion of their studies, without the need for an LMO.
If the program of study is two years or more, the student would be eligible for a three year work permit. However, if the program of study is less than two years but at least eight months, the student would be eligible for a work permit lasting for a period equal to the duration of their studies. The validity period of the work permit must not be longer than this period.
Students graduating from distance learning programs are not eligible. Also, if the degree was granted by a non-Canadian institution, students are not eligible regardless of the length of their stay in Canada.
The general requirements of the PGWPP are as follows:
If the program of study is two years or more, the student would be eligible for a three-year work permit. If the program of study is less than two years but at least eight months, the student would be eligible for a work permit lasting for a period equal to the duration of their studies. The validity period of the work permit must not be longer than this period. For example, if the student graduated from an eight-month certificate program, they are only eligible for a work permit of eight months' duration. However, students holding a one-year graduate degree from a provincially accredited post-secondary educational institution in Canada (pursued full-time) after having obtained, within the prior two years, a degree or diploma from an accredited post-secondary educational/training institution will qualify for a three year work permit. This exception also applies to students who have left Canada temporarily between the graduations.
- The student must have studied full-time at a Canadian university, community college, CEGEP (a post-secondary institution in the Province of Quebec), publicly-funded trade/technical school, or at a private institution authorized by provincial/territorial statute to confer degrees (but only if the applicant received the credential in a program of study leading to a degree as authorized by the province and not in all programs of study offered by the private institution).
- Studies must have taken place at a Canadian institution in Canada. Distance learning from outside or inside Canada does not qualify a student for this program.
- The student must have completed and passed a full-time course of study or program lasting at least eight months. Whether they received a "degree," "diploma" or "certificate" is not an issue.
- The work permit application should include evidence that the student has completed the program or course of study. This may include a final transcript, letter from the institution or the formal notification of graduation.
- The application must be submitted within 90 days of formal written notification by the institution that they have met the requirements of the course of study or program. Students who have evidence of program completion may apply for the work permit before the formal notification. Calculation of the 90 days begins the day when the student's final marks are issued or when formal written notification of program completion is received, whichever comes first.
- The student must still be in possession of a valid study permit at the time of application.
- Foreign Medical Residents and Medical Research Fellows Completing their Training or Research in Canada
As of September 1, 2010, foreign national medical residents and fellows seeking to complete their training or research in Canada do not require an LMO. The following definitions apply:
Foreign medical residents and fellows must present the following documentation at either a Canadian mission abroad or at the port of entry when they apply for their work permits:
- Foreign medical residents are holders of a medical degree equivalent to that of a Canadian Medical Doctorate (MD) who are coming to Canada to complete a residency at a Canadian hospital or in a clinical setting as part of their medical training. These positions have a duration of approximately 2–7 years or more depending on the area of medical specialization. Positions occupied by these foreign nationals are non-ministry (not publicly) funded places that have been created by Canadian medical faculties with financial support from the country sponsoring the training of the foreign resident.
- Foreign medical fellows are holders of a medical degree equivalent to that of a Canadian Medical Doctorate (MD), and recognized medical specialists who have completed residency training and accept to continue specializing in some highly specific field of study to advance clinical or medical research. Foreign medical fellows doing clinical work/research are typically performing very specific clinical/research work for a one or two year period, in a hospital, clinical or research setting.
In some provinces fellows, particularly research fellows, have no patient contact. Regardless of whether contact with patients occurs, fellows, like all residents, are required to pass an immigration medical exam according to IRPR 30.
- An official letter of employment from the university written on university letterhead and signed by a senior administrator (e.g. the Program Manager) from the Postgraduate Medical Office, detailing:
- The position being offered including the area of specialty, if applicable;
- The length of the residency training/fellowship period (number of months) including the beginning and end dates of the residency or fellowship period;
- The work location(s) for the duration of residency/fellowship;
- The annual income offered to the foreign national with an attestation that the wage is commensurate with that of a Canadian performing the same duties in the same location of work;
- Whether the position is covered by a collective agreement; and
- Whether the physician must be licensed by the provincial College of Physicians and Surgeons in order to undergo their residency or fellowship in that province.
- When applicable (see above), a copy of a letter from the relevant provincial College of Physicians and Surgeons, which confirms in preliminary terms the eligibility of the foreign national for licensure.
- Post-Doctoral Fellows and Award Recipients
Post-doctoral fellows hold a Doctorate degree (Ph.D.) or its equivalent. They would be appointed for a time-limited position granting a stipend or a salary to compensate for periods of teaching, advanced study and/or research. It is work designed to obtain the highest expertise possible in a particular discipline and candidates are chosen on the basis of academic excellence.
The foreign national must have completed his or her Doctorate and be working in a related field to that in which they earned their Ph.D. to be exempt from HRSDC confirmation. The foreign national must have graduated but there is no restriction regarding the date of graduation.
Physicians conducting post-graduate research, and who have no patient contact, may be included in this exemption.
Also eligible are holders of academic research awards involving work and remuneration by Canadian institutions where the award is granted strictly on the basis of academic excellence. The candidate must be the direct recipient of the award (i.e. the candidate must have a significant role to play or value to add) and not just be a member of a research team (doing data collection or principally involved in the more mundane aspects of the research being conducted).
Holders of academic research awards of a foreign country and invited by Canadian institutions to conduct their activities in Canada, but who are supported by their own country, are also eligible. Note: Persons who are doing self-funded research may meet the definition of business visitor and thus be eligible to perform such activities without a work permit. There should be no displacement of Canadian or permanent resident workers, nor should there be any employer-employee relationship. In addition, the individual or Canadian institution must not receive remuneration for the research.
- Off-Campus Employment
In order to enhance Canada's competitiveness in attracting foreign students, the Off-Campus Work Permit Program ("OCWPP") was established. The OCWPP allows foreign students to apply for a work permit to work off-campus without an LMO. This program is available in provinces that have signed a Memorandum of Understanding with CIC. The program allows foreign students to work part-time during their regular academic sessions and full-time during scheduled breaks (e.g., summer holidays). To qualify, students must be enrolled full-time at a participating publicly funded post-secondary educational institution; or, in a degree program from a Canadian private post-secondary institution authorized by provincial or territorial statute to confer degrees, but only if the program of study leads to a degree as authorized by the province and not in all programs of study offered by the private institution. Students need not have an offer of employment at the time of the application, nor does the work performed need to be related to the field of study.
Students are eligible under the OCWPP if they:
Students are ineligible if they:
- Have been a full-time student for at least one year (i.e. two consecutive terms) at a participating post-secondary institution and are currently enrolled in full-time studies at this institution (ESL/FSL studies are not eligible);
- Possess a valid study permit;
- Receive a verification form from a participating public post-secondary institution;
- Maintain acceptable academic standing and continue to make satisfactory progress in their specific program of study;
- Continue to fulfil the terms and conditions of their study permit and their work permit throughout the course of their studies in Canada; and
- Sign a consent form authorizing the exchange of personal information between the institution where they are registered full-time, the participating province, and CIC.
Enrolment and participation in ESL/FSL programs is not included in the calculation of the six-month period of full-time studies. If the institution considers a student to have "full-time" status during the "work experience" portion of the program and the student continues to comply with the institution's co-op rules, the student will be eligible for the OCWPP and the work experience portion of the program can be included in the calculation of the six-month period of full-time studies.
Off-campus work permits should be valid for the same period as the study permit. A study permit is usually issued for the duration of study, plus 90 days. Therefore, the work permit will also valid for duration of study, plus 90 days.
Students who have completed their academic program requirements and who are within the 90-day transition period will still be considered eligible to work off-campus, provided that they hold a valid study permit and a valid off-campus work permit. These students can work full-time. Some students have short-term study permits that are required to be renewed each year (e.g., students from a VIT country, outlined in IC 2). In order to participate in the Program, these students would need to apply for a renewal of the work permit each time.
Participating students can work up to 20 hours per week during their regular academic sessions, while they are registered as full-time students. They may work full-time during scheduled breaks (e.g., winter/summer holidays, reading week) and during the transition period to a postgraduation work permit. Students who are registered as full-time students during the summer period (May to August) may only work up to 20 hours per week during that period.
Some intensive programs may not have scheduled breaks. Students participating in such programs would therefore be limited to working for a maximum of 20 hours per week during the entire program of study.
IRPR 206 allows persons who are in Canada in order to seek status as a refugee or protected person to seek work permits. They must demonstrate that they cannot otherwise support themselves, but are otherwise eligible for open work permits. This section does not include family members and, as such, family members of refugee claimants or of a person subject to an unenforceable removal order are not entitled to an open work permit; however, they can apply for a regular work permit (with an LMO) from within Canada in accordance with IRPR 199.
A work permit may be issued to a foreign national in Canada who cannot support themselves without working, if the foreign national:
- Have previously held an off-campus work permit, failed to maintain their eligibility for the Program (they may reapply at a later date), and failed to comply with the terms and conditions of their work or study permit (they may not reapply);
- Have a partial or full scholarship/award from the Canadian Commonwealth Scholarship Program, the Government of Canada Awards Program funded by Foreign Affairs Canada, or the Canadian International Development Agency;
- Are visiting or exchange students; or
- Are registered in general interest courses or programs that consist primarily in English or French as a second language (ESL/FSL) instruction.
They must demonstrate that they cannot otherwise support themselves, but are otherwise eligible for work permits. The onus is on the foreign national to prove that he or she is unable to subsist without public assistance. Officers may consider this particular criterion to have been met if there is any likelihood that the claimant might require public assistance.
The phrase "unenforceable removal order" includes the following:
- Has made a claim for refugee protection that has been referred to the Refugee Protection Division but has not been determined; or
- Is subject to an unenforceable removal order
With the exception of persons who are not entitled to apply for protection from removal [described in IRPR 112(a)], this includes persons who have demonstrated full and timely cooperation, but the department has been unable to enforce their removal for reasons beyond the control of the Applicant (i.e. difficulty in obtaining a passport from the government of the foreign national).
Refugee claimants are given medical instructions upon making their claim. A work permit may not be issued until the officer has received the results of the medical exam of the claimant. Open work permits may be issued for a period of 18 months from the date of the applicant's claim was forwarded to the Immigration Review Board ("IRB"). Subsequent renewals may be for periods of 12 months or less, depending upon the circumstances of the applicant.
Applicants in Canada
According to IRPR 207, a work permit may be issued to a foreign national in Canada who:
- Persons who have been issued a removal order that is not in force or that has been stayed; and
- Persons whose removal orders cannot be enforced as soon as reasonably practicable because they are persons to whom notification to apply for Pre-Removal Risk Assessment ("PRRA") under IRPR 160 (application for protection from removal).
According to IRPR 208, a work permit may be issued to a foreign national in Canada who cannot support himself or herself without working, if the foreign national:
- Is a member of the live-in caregiver class who have met the requirements for permanent residence outlined in IRPR 113 ;
- Is a member of the spouse or common-law partner in Canada class, who have satisfied the officer that they meet the requirements of IRPR 124 ;
- Is a protected person within the meaning of subsection 95(2) of the IRPA [a person granted refugee protection - convention refugees, PRRA applicants, etc.];
- Has applied to become a permanent resident and the Minister has granted them an exemption under section 25 [persons for whom eligibility or admissibility requirements have been waived on humanitarian and compassionate grounds]; or
- Is a family member of a person described in any of paragraphs (a) to (d).
Each case submitted by destitute students should be considered on its own merit. Some cases will be self-evident such as cases of war, upheaval in the home country, collapse of the banking system, etc. while others will require further explanation by the applicant, usually at an interview by an immigration officer. An open permit may be issued to coincide with the duration of the current term of study, not for the duration of the entire program nor for the duration of the study permit.
With regard to temporary resident permit holders, if the temporary resident permit holder will be in Canada for six months or longer, and has no other means of support (meaning no family support or other means of meeting his or her needs), they may be issued a work permit. In the case of temporary resident permit holders who were refused AFL, and who are waiting to become eligible for permanent residence, officers need not be too rigorous in determining whether applicants need to work because they have no other means of support. The integration of future permanent residents will be assisted by allowing them to work. An open work permit may be issued that coincides with the validity period of the temporary resident permit.
Recent Amendments to the Temporary Foreign Worker Program
On August 4, 2010, the Governor General in Council published amendments (the "Amendments") to the IRPR, which will adversely affect many temporary foreign workers ("TFWs"). Although the Amendments do not come into force until April 1, 2011, the changes are significant. An overview of these amendments is provided below:
Assessment of Employment Offered [R200(5)]
The Amendments establish specific factors to assess the genuineness of the employer's offer of employment to a TFW, both in Labour Market Opinion ("LMO") cases and in LMO-exempt cases. These factors include:
- Holds a study permit and has become temporarily destitute through circumstances beyond his or her control and beyond the control of any person on whom that person is dependent for the financial support to complete their term of study; or
- Holds a temporary resident permit that is valid for at least six months.
Additional Employer-Related Requirements for Live-In Caregivers [R203(1)(d)]
In the case of a live-in caregiver, an immigration officer must determine, on the basis of an LMO provided by Human Resources and Skills Development Canada ("HRSDC"), if:
- Whether the offer is made by an employer that is actively engaged in the business in respect to which the offer is made (except in the case of live-in caregivers, who are typically employed by households instead of businesses);
- Whether the offer is consistent with reasonable employment needs of the employer;
- Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
- The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.
Ban on Employers Who Failed to Substantially Comply with the Terms of a Previous LMO [R200(1)(c)(ii.1)(B) and R203(1)(e)]
The Amendments make an employer ineligible to seek a work permit on behalf of a TFW unless, during the period beginning two years before the initial request for an LMO is made to HRSDC or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada ("CIC") or the Canadian Border Services Agency ("CBSA"):
- The foreign national will reside in a private household in Canada and provide child care, senior home support care, or care of a disabled person in a household without supervision;
- The employer will provide adequate furnished and private accommodations in the household; and
- The employer has sufficient financial resources to pay the foreign national the wages that are offered to the foreign national.
The permitted justifications described in R203(1.1) include:
- The employer provided each of its foreign workers with wages, working conditions, and employment in an occupation that were substantially the same as the wages, working conditions, and occupation set out in the employer's offer of employment; or
- The failure to do so was justified in accordance with R203(1.1).
The assessment is undertaken at the time that a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA.
Published List of Banned Employers [R203(6)]
The Amendments provide that CIC must maintain a list of banned employers on its website, stating the names and addresses of each employer and the date that the determination was made. HRSDC will not issue an LMO and CIC/CBSA will not issue a work permit for any banned employer.
Temporary Foreign Workers Limited to Four Years [R200(3)(g)]
The Amendments provide for a cumulative four-year cap on TFWs until a period of 48 months (4 years) has elapsed. However, exemptions from the four-year cap exist in the following situations:
- A change in federal or provincial law;
- A change to the provisions of a collective agreement;
- The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
- An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
- An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
- Circumstances similar to those set out above.
Fortunately, a TFW who has reached the four-year cap is not required to leave Canada; they just may not obtain a work permit during the subsequent 48-month period. In other words, the foreign national could obtain a study permit, attend school for 48 months, and then once again become eligible for a work permit.
LMOs to Indicate Period of Validity [R203(3.1)]
The Amendments provide that LMOs shall indicate the period during which the opinion is in effect. If the TFW does not obtain a work permit within the time period, the employer must request a new LMO from HRSDC.
HRSDC's current policy is that all LMOs expire six months after issuance. It is unknown whether this validity period will continue once the Amendments come into force.
Clearly, the Amendments will have a dramatic and undesirable effect on most TFWs. The only positive news is that status quo will be maintained at least until April 1, 2011.
- The foreign national intends to perform work that would create or maintain significant social, cultural, or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions such as significant benefit to Canada (C10) and intracompany transferee (C12), among others, will be exempt from the four-year cap.
- The foreign national intends to perform work pursuant to an international agreement between Canada and one or more countries, including an agreement concerning seasonal agricultural workers. Therefore, work permits issued in accordance with international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, and the Canada-Chile Free Trade Agreement, among others, will be exempt from the four-year cap.