Work Permit

If an individual does not fall within any of the exemptions described above, he or she must obtain a work permit before working in Canada.

Employment and Social Development Canada (ESDC) Confirmation Letter Work Permit

This is the most common type of work permit.

This work permit is issued only on the basis of an ESDC labor market impact assessment (LMIA) granted to the Canadian employer that confirms there is no Canadian available to do the job.

ESDC will look at the employer’s advertising efforts and the labor market for that job.

As well, ESDC will ensure that the wages and working conditions being offered to a foreign national are equivalent to what a Canadian would be paid for the same work.

In addition, ESDC will consider how the employer will transition to a Canadian workforce. Whether skills and knowledge transfer would result from confirming the foreign worker and whether the work is likely to create other jobs for the benefit of Canadians or permanent residents.

Remember, the employer (not the worker) applies for ESDC confirmation.  The employer must advertise the position in the Canada Job Bank and typically in one trade magazine for a certain period of time depending on the job.

A good strategy when applying for an ESDC confirmation is to show that the position was properly advertised (keep evidence of the ad and the time period it was posted), to explain why no Canadians is available for the position, and explain how the skills of the foreign worker will be used to train Canadians or create other jobs through the enhancement of the business in Canada.

Once an employer receives a positive LMIA (confirmation letter) from ESDC, the worker can use this letter to apply for a work permit.

Open Work Permit

An open work permit allows an individual to work at any employer he or she chooses (although such a permit is often restricted to certain industries). An open work permit does not require an ESDC LMIA (discussed above).

An open work permit may be issued to the spouse or common-law partner who accompanies a foreign student or worker to Canada (who are themselves admitted under a study or work permit) for a time period equal to that study or work permit.

As such, spouses or common-law partners accompanying a foreign student or worker should apply for an open work permit at the same time the foreign student or worker is applying for a permit, and prior to arrival in Canada.

NAFTA Intra-Company Transferees

The North American Free Trade Agreement allows certain U.S. or Mexico intra-company employees to work in Canada without the requirement for an HRSDC confirmation. There are several requirements for this category of work permit, including:

• the person must have been employed abroad continuously for 1 year prior to the time of application at the managerial level
• the person must be seeking entry into Canada to continue employment with the same employer, subsidiary or parent company at the management level
• “managerial” means that a person must be responsible for directing the organization or a unit of the organization, and must have the power to hire and fire, or at least recommend such actions

NAFTA Traders

The North American Free Trade Agreement allows certain U.S. or Mexico traders to work in Canada without the requirement for an HRSDC confirmation. This category applies to senior managers of U.S. or Mexico companies who intend to carry on substantial trade with Canada.

There are a number of specific requirements, including percent ownership and volume of trade minimums.

NAFTA Investors

The North American Free Trade Agreement allows certain U.S. or Mexico investors to work in Canada without the requirement for an HRSDC confirmation.

This category applies to individuals who are investing in a company in Canada which is a U.S. or Mexican company operating in Canada. There are a number of specific requirements, including percent control and the nature of the investment.

Obtaining a Work Permit Requiring ESDC Confirmation

This section will describe the process of obtaining a work permit that requires ESDC confirmation.

An ESDC confirmation is an opinion from Employment and Social Development Canada that there is no Canadian available to do the job for which a work permit is applied for.

If Canadians are readily available to do the job, ESDC approval will not be given.

ESDC also considers whether there will be skills and knowledge transfer to Canadians, or if the position in Canada will create opportunities for other Canadians.

An employer should absolutely include a plan to transition to Canadian workforce –  a skills transfer to Canadians aspect, or an improvement in your business so you’ll be able to hire more Canadians as part of the LMIA application.

Step 1: Employer Must Obtain ESDC Confirmation

The first step in obtaining a work permit is for the Canadian employer to obtain HRSDC confirmation for the particular job that he or she wishes to fill with a foreign national.

Click here for a detailed list of steps in order to obtain an HRSDC confirmation.

Application to ESDC

A Canadian employer must first apply for an ESDC confirmation letter at the local ESDC office responsible for the location where the job will be situated.

It is often possible to discuss the situation and ask for advice from an ESDC officer during the process, which is usually completed very quickly.

Click here for a list of local HRSDC offices.

Typically, 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 the number of employees and a 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)

Factors the ESDC officer must consider

It is always important to keep in mind the factors that an ESDC officer must consider in reviewing an application for confirmation by a Canadian employer. Such factors include:

• 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 labor 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
• whether the employment of the foreign national is likely to adversely affect the settlement of any labor dispute in progress or the employment of any person involved in the dispute

ESDC decision-making process

The ESDC decision-making process depends on the circumstances.

For instance, in times of low unemployment and labor shortages, the extent to which an employer must advertise a position will be lower than for areas with high unemployment and labor surpluses.

In addition, depending on the position, the ESDC may insist on national advertising to attract Canadian candidates for senior-level positions.

Moreover, the ESDC will also review the salary and working conditions to determine that they are consistent with the current labor market in the area.

The ESDC will also consider whether hiring a foreign worker will result in a skills transfer to Canadians, whether a union is present at the workplace (if the worker will join the union) and whether hiring a foreign worker will affect a labor dispute at a workplace.

If the ESDC officer concludes that no Canadian is available for the advertised by the Canadian employer, the job offer will be validated by a confirmation letter.

The confirmation is then signed by the employer and ESDC. This confirmation is then sent by ESDC to the appropriate Visa office where the foreign worker has applied (or will soon apply) for a work permit.  A copy should also be included in the work permit application.

The employer is notified that the confirmation has been sent to the Visa office.

This completes ESDC’s involvement in the work permit process. The next step is for Citizenship and Immigration Canada to review and approve (or deny) the foreign worker’s work permit application in the applicable foreign visa office

Step 2: Worker Applies for Work Permit

Typically, a foreign worker applies for a work permit after he or she receives a job offer from a Canadian employer, and after the Canadian employer receives ESDC confirmation (note that ESDC confirmation is also sent to the Visa office responsible for the geographic region in which the foreign worker lives).

Generally, the following documents are required for a work permit application, although other supporting documentation will be required depending on the circumstances:

• application form
• fee
• job offer
• background documents showing the qualifications and experience of the applicant for employment
• proof of identity

Where does a foreign worker apply?

The foreign worker applies to the Canadian Consulate or Canadian High Commission responsible for the geographic region in which the worker currently lives.

Click here for a list of Canadian Visa offices around the world (note that the second column lists offices that can issue work permits). Click here for the work permit application package.

In addition, the foreign worker may also require a temporary resident visa (in addition to the work permit) if he or she is from one of these countries.

Qualifying for a work permit: the ability to perform the work

The foreign Canadian Visa office will determine whether or not the foreign worker is qualified to do the work set out in the job offer as confirmed by ESDC.

The Visa office will review the foreign worker’s educational qualifications and work experience to ensure they match the Canadian employer’s specified requirements.

If the foreign worker does not possess the appropriate qualifications, a work permit will not be issued.

It should be noted that a work permit will not be issued for regulated occupations (such as doctors, lawyers, engineers, certain tradespeople, etc.,) unless the foreign worker meets the certification and licensing requirements of the applicable regulatory body.

It is essential to contact these regulatory bodies before a work permit application is made to ensure that a foreign worker meets Canadian qualification standards.

Genuine temporary resident

The Visa office must be satisfied that the foreign worker is a genuine temporary resident and will (or intends to) return to his or her country of origin once the work permit expires.

The Visa office will look for property, family ties, bank accounts, investments or other evidence that show the foreign worker has links to his or her home country.

It should be noted that the Visa office recognizes a dual-intent to work in Canada temporarily and to apply for permanent residency.

In fact, points are awarded on a permanent resident application for work experience in Canada. As long as the foreign worker can show sufficient ties to his or her country, he or she is free to work in Canada temporarily and also apply for permanent residency.

Step 3: Work Permit is Issued

Once ESDC confirmation is granted, and the foreign worker qualifies for a permit, it is usually issued within approximately one month (click here for current processing times).

Work permits are generally issued for periods between one and three years, depending on the occupation, length of employment contract and other factors.

The Visa office will typically issue permits for a longer (rather than shorter) time period, to avoid dealing with work permit extension applications in the future.

The Visa office may also issue an open work permit for an accompanying spouse (if it was applied for) or even accompanying children if they are over 18 years of age (but less than 22 years of age).

A work permit also allows school-aged children to attend public school and allows the applicant’s family to access public health care, although some provinces have a 3 month waiting period before applying for health care coverage.  Private insurance should be purchased for this interim period.

Private insurance can be purchased from the Blue Cross or other health insurers.