Shortages in the Canadian labour market have reached a critical peak, and Canada projects being short of workers in many sectors for the foreseeable future. Now more than ever, employers are looking for talent overseas to stabilize their workforce. In most cases it’s possible to hire foreign workers, but employers will usually need help to determine the best process to follow.
There are two main ways that Canadian employers can hire a temporary foreign worker – some will already have an open work permit, and others will need the Canadian company to obtain permission to hire them.
Open work permit
When a worker has an open work permit, a Canadian company can hire that worker in the same way they would hire a Canadian worker, without needing to go through any process to obtain permission to hire a foreign worker. As a Canadian employer, you will want to review the open work permit to ensure that it is indeed open, meaning there is no employer name, location or occupation specifically mentioned on the permit, and that there are no conditions listed that would prohibit the worker from working in your intended occupation. The most common prohibitions are restrictions against working in healthcare, childcare and the sex trade. It’s possible for the worker to take a medical exam and then ask to have the restrictions for healthcare and childcare removed. It’s not possible for a Canadian employer to hire a foreign worker to work in the sex trade.
There are several different reasons that a worker might have an open work permit, including being a family member of a foreign worker or student, someone with an application for Permanent Residence in process, a graduate of a Canadian post-secondary program, a young person participating under the IEC program, a refugee claimant, or someone who holds a work permit issued under a specific policy such as the current 3-year open work permits for Ukrainian citizens.
The open work permit really is the best scenario for both the worker and the company, but there are a very limited ways to obtain an open work permit and most foreign workers do not qualify for this option.
Employer specific work permit
If the worker does not already hold an open work permit, or if they have a work permit with a different employer’s name listed on it, then the Canadian employer wishing to hire the worker will need to apply to the Canadian government for permission to hire a temporary foreign worker. The end result, if successful, will be a work permit that allows the worker to work only for that specific employer, location, and occupation.
There are a few different options to obtain an employer specific work permit, depending on things like the size of the company, location of the work, the occupation and nationality of the worker.
The process of hiring a worker through an Employer specific work permit is a two stage process – first the Canadian company requests permission to hire the foreign worker; second, the worker makes an application for a work permit. Usually the work permit needs to be in place before the worker can start employment. This process may take several months, depending on where the worker is located, so it’s imperative that you plan ahead when planning to hire foreign workers.
The benefit of hiring workers on employer specific work permits is that when approved, that worker will be tied to your company for 2-3 years, because they won’t be authorized to work for anyone else in Canada. This can be a big benefit to stabilizing your work force in remote locations or in occupations with high turnover.
The International Mobility Program
The International mobility program is typically the easiest, fastest and least expensive way for a Canadian employer to obtain an employer specific work permit, but there are strict limitations to the nationality of the worker and the type of occupation that qualifies.
There are a number of work permit options that fall under the label of International Mobility and most of them depend on the nationality of the worker involved. Any time there is a trade agreement announced between Canada and another nation, there are immigration provisions in that trade agreement that allow for the movement of certain types of workers between both countries. The most well-known and heavily used trade agreement in Canadian immigration is the former NAFTA agreement (now known as CUSMA or USMCA) whereby Canadian, American or Mexican citizens can obtain work permits relatively easily between the three nations, for specific categories of occupations only. Another common pathway in the International Mobility Program is for native French speaking workers who will be employed outside of Quebec (even if they will work in English once in Canada).
There are also certain pathways for international companies to transfer their existing workers between various international locations to carry out company operations on a global scale. International companies with a Canadian operation can often obtain work permits to transfer workers to Canada from their overseas offices.
To hire a worker who is eligible under the International Mobility Program, a Canadian employer will need to register for the IRCC employer portal and submit an e-job offer. Once the e-job offer has been submitted, a number is assigned to the job offer and the worker uses that number to apply for their work permit.
It’s important to know the specific section of the Immigration rules that enable the worker to apply under the International Mobility Program. The job offer you make in the employer portal must align with both the NOC code for the position and the qualifications of the worker. The worker must provide evidence that they meet any requirements listed in the job offer – like education, language, professional license, work experience – or their work permit will be refused. It’s important to consider all of these factors from the start to ensure that you actually end up with a worker once you have completed this process.
All provinces and territories in Canada, except Nunavut, have a provincial nomination process that exists to help attract and retain qualified foreign workers. Some provinces allow a company operating in their province to hire a foreign worker with a work permit as part of the nomination process for permanent residence. The benefit to this approach is that the employer doesn’t usually need to advertise the position before hiring the foreign worker, and it will generally be less expensive for the employer to go this route compared to an LMIA application. The disadvantage of this approach is that it is not available in all Provinces and it typically takes longer for the worker to arrive than if the LMIA approach is used.
Labour Market Impact Assessment (LMIA)
The LMIA is usually the option of last resort for a Canadian company to fill vacant positions. For most occupations, this process requires the Canadian company to first advertise the vacant position for at least 1 month to show that no Canadian workers are willing or qualified for the job. The government sets the minimum acceptable wage rate for each occupation and location.
Once it’s confirmed no Canadians are available to fill the position, an application package is submitted to Service Canada providing evidence that the Canadian business is legitimate, has advertised and found no Canadian workers, has made an offer of employment to the foreign worker and can afford to hire them. When reviewing the application, a Service Canada officer will usually call the Canadian employer to confirm the details before issuing an approval letter, called an LMIA. The Canadian employer then gives the positive LMIA to the foreign worker, who can now apply for their work permit.
International students who are studying in an approved program in Canada are usually authorized to work on the basis of their study permits. They are restricted to working off campus a maximum of 20 hours per week during the semester, but may work full-time during breaks. As a temporary measure to address current labour shortages, Canada Immigration has allowed international students to work more than 20 hours per week between November 15, 2022 and December 31, 2023 as long as the student meets certain conditions. A Canadian employer should review the study permit to see the notation “Off campus work authorized” before hiring the foreign student.
While Immigration legislation is a federal matter in Canada, employment legislation is a provincial matter. A number of Canadian provinces have their own regulations in place for employers hiring foreign workers to work in the province.
Before your company takes any steps to hire foreign workers, it’s important to look into the provincial regulations for where your business is located, but also the regulations of any province where the workers will perform their duties. If the position requires travel to different provinces, then the rules for each province will apply when that worker is present within the provincial boundary. In most cases, the employer will have to be registered with the province before you start recruitment efforts that target foreign workers – and there are penalties if you move forward without provincial authorization.
Other key considerations when hiring foreign workers
Once any necessary permissions are in place (federal and provincial) and the worker has obtained a work permit, employing a foreign worker is much the same as employing the rest of your work force. There are a few additional items to keep in mind:
Changing occupations, working conditions or locations
When hiring a foreign worker with an employer specific work permit, there are usually conditions attached to the work permit – meaning that the worker can only work in a certain location, in a specific occupation and at a certain wage rate. Canadian employers need to be careful about making any changes to the working conditions of their foreign workers without first seeking permission to make the intended change. Having a foreign worker on staff is not as flexible as having a Canadian worker who you can ask to handle whatever duties are necessary in the course of a day’s business.
Expiry of work permit
A foreign worker will always have an expiration date attached to their work permit. Before that date, the worker either needs to apply for an extension or stop working and leave Canada. Canadian employers need to ensure that they keep track of the expiration date of their foreign workers in order to avoid accidentally employing someone who no longer has authorization to work in Canada.
Implied or maintained status
If the foreign worker has applied for an extension to their work permit before their current work permit is set to expire, then they can continue to work legally until IRCC makes a decision on their new application. During this time, the worker will not hold a valid work permit, but proof of their “maintained status” will consist of the old work permit plus a letter from IRCC stating that their extension application was received before old work permit expired.
Canadian companies should retain a copy of this letter in the worker’s HR file as proof that the worker had legal status despite the fact that their work permit has expired. The worker’s SIN number will also expire during this period, but they are fine to continue working using the existing SIN because the worker can simply have it re-activated once the new work permit has been issued.
Penalties for hiring a foreign worker without the proper authorization
Our office often gets enquires from Canadian companies who have identified a foreign worker who is already in Canada and has a work permit for a different employer or no work permit at all. Both the Canadian employer and the potential worker are eager to start working together as soon as possible, usually this means yesterday.
Our advice to both parties is to always follow the rules, even though it will take some time to get the proper authorizations in place.
The penalties under the Immigration and Refugee Protection Act in Canada for a company employing a foreign worker without authorization can be as high as a $50,000 fine per occurrence. Employers who knowingly violate the Act can also end up with criminal convictions, which is a pretty serious personal matter.
The federal government and certain provinces also have the ability to ban certain companies from hiring foreign workers for a specified time. This will impact the ability of your business to keep the foreign workers you already have and prevent you from hiring new ones.
In all cases, it’s better to be patient and follow the rules – even though you need that worker badly.
The Way Immigration has successfully helped hundreds of Canadian companies and thousands of foreign workers since 2008. We can assist your Canadian business to understand the most efficient pathway to hire temporary workers. We provide a high-level approach to solving your staffing needs so that the entire process, from start to finish, goes as smoothly and quickly as possible. Contact our office today to better understand your options to stabilize your work force with the addition of temporary foreign workers.