Hiring foreign workers

Before hiring a foreign worker you may need a positive labour market opinion (LMO) from Human Resources and Skills Development Canada (HRSDC) confirming that the foreign worker can be hired because no Canadian is available. There are some categories that do not need an LMO but a work permit is required.

There are some jobs such as business visitors, clergy, health care students, and performing artists etc. that do not require a work permit, but conditions may apply according the activities in which the individual would engage.

HRSDC considers many factors for assessing applications for LMOs including job creation or retention for Canadians, skills development for Canadian workers, labour shortages, prevailing wages, acceptable working conditions and effect on any labour disputes.

HRSDC has recently changed the advertisement requirements for NOC 0 and A occupations. Before submitting an application for LMO, the employer must advertise the job for at least 14 consecutive days on the Job Bank website, an internet employment site, such as Monster or Workopolis or a professional association’s website.

After a positive LMO is issued, the foreign worker then applies for a work permit. The duration of the work permit can be for up to four years (for work performed after April 1, 2011) unless the occupation is an exception. Most workers within the four-year period become eligible to apply for permanent residence in Canada.

LMO based work permits are generally employer and occupation specific. If the employment is terminated a new LMO and work permit are required.

Work or business travel in Canada or U.S. under NAFTA

• Entry to the U.S.  as a business visitor:

A Canadian business visitor can enter the U.S. on a temporary basis if engaged in international business activities related to research and design, growth, manufacture and production, marketing, sales, distribution, after-sales service (provided it is pursuant to a warranty or service contract), and other general services (like financial services, public relations, tourism and translation services).

NAFTA lists the qualifying business activities. The primary source of remuneration must remain the home country and the principal place of business must be outside the USA. Canadians entering the USA as business visitors must prove their eligibility at the port-of-entry by providing sufficient evidence.

• NAFTA Professionals:

Canadian professionals can apply for a TN Professional status to work in the U.S. if their profession is listed under NAFTA Appendix 1603 D.1. The prospective employer in the U.S. is not required to apply for a labour condition application. The applicant must possess the criteria specified under NAFTA for the profession. The professional must intend to work in the U.S. on a temporary basis initially for up to three years.

• Intra-company transferee to work in Canada

International companies having their parent company, branch, subsidiary, or affiliate office in Canada can transfer their managers, executives or employees with specialized knowledge to work temporarily in Canada. The employer does not need a Labour Market Opinion (LMO). The foreign national coming to work in Canada must be employed full-time in a similar position for at least one year in a three-year period immediately preceding the application.

Under certain circumstances the foreign enterprise may be able to establish a new office in Canada and transfer the intra-company transferee to work in Canada.

• Intra-company transferee to work in the U.S.:

International companies can transfer their executives, managers, or specialized knowledge employees to the U.S. after a Petition for a Nonimmigrant Worker is approved. The employee must have worked outside the U.S. for at least one year in the preceding three years as an executive, manager, or specialized knowledge employee.

The U.S. enterprise must be a parent, branch, subsidiary, or affiliate of the multinational company. The employee must be coming to the U. S. to work in an executive, managerial, or specialized knowledge capacity.

• Treaty trader (E-1) visa for the U.S.

Canadians can apply for the E-1 visa for substantial trade or to direct the operations of an enterprise in which they have invested substantial amount of capital. The requirements include that at least 50 percent of the business must be owned by the Canadians. Substantial international trade should be involved and more than 50 percent of the trade must be between U.S. and Canada. The applicant must also be a supervisory, executive, or highly specialized skill capacity employee.

• Treaty investor (E-2) visa to the U.S.

Canadian citizens, partnerships or corporations can apply if at least 50 percent of the business is owned by them. The commitment to invest the funds or commit the assets must be irrevocable. The enterprise must generate more income than required to provide a living to the applicant and his or her family, or the enterprise must have a significant economic impact in the United States. The applicant must have control over the funds. The applicant must be the principal investor or an essential employee, employed in a supervisory, executive, or highly specialized skill capacity seeking to administer the investment.

• Traders – Work in Canada

An enterprise having an American or Mexican nationality can apply for a U.S. or Mexican citizen to work as a trader in Canada under NAFTA. The enterprise must be engaged in trading goods or services between the U.S. or Mexico and Canada and the position at which the individual would be working must be executive, supervisory, or involving essential skills.

• Investors – work in Canada

American or Mexican citizens can apply for investor status in Canada to develop and direct an American or Mexican enterprise. Eligibility requirements include a substantial investment already made or being made and the position must be at the executive or supervisory level or involve essential skills.

Business visitor – to do business with Canadian companies

• Eligibility: http://www.cic.gc.ca/english/visit/business-who.asp

Start-Up Visa – Start a business and invest (See Start-up Visa under ‘Individuals’)

• http://www.cic.gc.ca/english/department/media/releases/2013/2013-05-21.asp

The Canadian Immigration Law provides right for appeal and judicial review of wrong decisions. Whether it is refusal of an overseas or inland application or an order to remove/deport a person from Canada, you can appeal or seek judicial review of that decision within a certain time limit. Our lawyers can represent you in the Federal Court of Canada and at other Hearings and Appeals.

The Canadian Immigration laws are complex and constantly changing. We at Mann Law are experienced and understand the complexity of serious immigration issues. We have experience to represent you in appeal or judicial review matters in a competent and professional manner.

At Mann Law, we can appeal your case if it has been refused for reasons that cannot be justified. If the decision cannot be reconsidered by Immigration, an appeal may be filed to the Federal Court or the Immigration Appeal Division, depending on the type of decision.

The time to file an appeal may be as short as 15 days from the date the decision is received. If an application has been refused, it is important to consult a lawyer as soon as possible.

Spousal Sponsorship Refusals
The visa officer may not believe the marriage or common law relationship is genuine..

Residency Appeals 
An Immigration Officer believes that a Permanent Resident has not met his/her Residency Obligations. Humanitarian and Compassionate factors may be considered.

Medical Inadmissibility refusals
An Immigration Officer has determined the applicant will be a danger to public health or safety, or will cause undue demands on Canada’s health or social services. These decisions may be challenged, and there may be Humanitarian and Compassionate factors that should be considered in the appeal.

Criminal Inadmissibility
Where an Officer has determined that you have committed, or are likely to commit, particular criminal offences inside or outside of Canada, you may be criminally inadmissible. Humanitarian and Compassionate factors may be taken into consideration in an appeal.

Skilled Workers refusals
May be due to inaccurate assessments of education, language skills, work experience, settlement funds or other factors due to poor documentation, or an unsuccessful interview.

Business Immigrants refusals
An officer may find the applicant does not have required “business experience” or evidence of how assets were legally obtained.

Entrepreneur Condition Removals
If the Immigration officer finds that you didn’t invest in and be actively managing a qualifying business within the 2 or 3 year time condition, you could be ordered deported. We can often negotiate an extension of time to comply for our clients.

If you wish to discuss the refusal of an Immigration Application or a Removal/Deportation order please contact us now.

Recent changes

• Citizenship test

Canada has one of highest naturalization rates in the world with approximately 200,000 permanent residents becoming Canadian citizens every year. The citizenship test requires the applicants to pass the language and Canadian culture and history test.

In June 2013 the federal government announced that applicants who fail the citizenship test will be able to write the test again. After the second failure the application will be assessed by a citizenship judge.

• Parent and grandparent sponsorship program

In November 2011 Citizenship and Immigration Canada (CIC) had stopped accepting applications for sponsoring parents and grandparents permanent residence in Canada. CIC has now announced that Canadian citizens and permanent residents will be able to sponsor their parents and grandparents starting from January 2, 2014. To avoid backlogs and long waiting times CIC will accept only 5,000 applications under this program per year.

The new guidelines for the program include a 30 percent increase in minimum necessary income requirements for the sponsor. The new income threshold must be demonstrated by way of Canada Revenue Agency assessments for at least three consecutive years. The sponsorship undertaking for this program used to be 10 years, but now the duration of the undertaking would be 20 years. Maximum age of the dependents eligible to be included in the application for permanent residence has been reduced from 22 years to 18 years.

• Super visa

When CIC stopped applications for permanent residence of parents and grandparents in November 2011 the Super Visa Program was introduced on a temporary basis. CIC has announced that the Super Visa Program through which Canadian citizens and permanent residents can invite their parents and grandparents for extended visits of up to two years over a period of 10 years is now a permanent option.

Parents and grandparents can apply for the Super Visa with proof of financial support from their Canadian citizen or permanent resident child or grandchild, a one-year health insurance policy and medical examination report. The sponsor must have the required income for the household.

• Five- year sponsorship bar

CIC has introduced changes to avoid foreign nationals from abusing the spousal sponsorship program by using their relationship to acquire permanent residence in Canada and then abandoning the sponsor and entering into a new relationship.

Anyone who became a permanent resident of Canada on the basis of a spousal, common-law or conjugal partner sponsorship and the relationship breaks down is barred from sponsoring another spouse or partner for a period of five years after becoming a permanent resident, even if the sponsored person acquires Canadian citizenship during that period.

• Three-year sponsorship bar

The three-year sponsorship bar applies to the sponsor and prohibits the sponsor from sponsoring another spouse or partner during the duration of the sponsorship undertaking. Sponsorship undertakings for spouses or partners are given for three years and the sponsors remain financially responsible to fulfill the undertaking regardless of the causes of breakdown of the relationship.

• Two- year conditional permanent residence for sponsored spouses and partners

Another change that applies to all applications submitted after October 25, 2012 for sponsoring spouses or partners provides that the permanent residence to the sponsored person would be granted on a conditional basis for two years. The amendment to the immigration regulations requires the sponsored spouses or partners to cohabit with their sponsor for a period of two years after becoming permanent residents of Canada.

The condition does not apply if the couple has already been in the qualifying relationship for more than two years on the date of the application or have common children.

Spouses or partners who are in abusive relationships can request an exception.

• Family sponsorship – spouses, CL or conjugal partners, children, parents and grandparents
  • Sponsoring a spouse or common-law partner: Under Canadian immigration laws, a same-sex spouse and same-sex partner can sponsor their spouse or partner for permanent residence in Canada.

A Canadian citizen or a permanent resident of Canada who meets certain eligibility factors can sponsor a spouse or a common-law or conjugal partner. A permanent resident of Canada residing in Canada or a Canadian citizen may be eligible to sponsor his or her spouse or partner. The sponsor must be at least 18 years of age and sign a three-year undertaking to provide financial support and basic requirements to the sponsored spouse or partner. Additional eligibility criteria according to the circumstances may apply.

• Student visas

About 100,000 foreign students come to Canada every year. After successful completion of their study program the students are eligible to apply for a post-graduation work permit. After working in Canada in certain occupations and meeting other eligibility criteria, the students may be eligible to apply under a federal or provincial program for permanent residence in Canada.

To apply for the study permit, the students decide the post-secondary program and the institution they want to attend.  The applicant must prove that they have enough financial support for themselves and their family members who would be accompanying them to Canada.

Full-time students are eligible to work on the campus of their institute. For off campus work, full-time students can apply for a work permit to work up to 20 hours per week during regular academic sessions, and full-time during scheduled breaks.

A spouse or common-law partner of a student is eligible to apply for open work.

• Work permits
  • U.S. and Mexican citizens may be eligible to apply under the North American Free Trade Agreement ( NAFTA) (See Work or business travel in Canada or U.S. under NAFTA)
  • Citizens of other countries and individuals who do not qualify under NAFTA (See Hiring foreign workers)

• Canadian experience class
  • Skilled workers who have worked in Canada for at least one-year in the last three years in managerial, professional or technical and skilled trades jobs may be eligible to apply for permanent residence in Canada under the Canadian Experience class. The applicants must also meet the specified official language requirements for their occupation.

• Criminal inadmissibility
• Investors, entrepreneurs and self-employed
  • Start-up visa

Start-up visa is a new initiative for foreign entrepreneurs, if their business idea is funded by a designated private sector organizations having expertise in start-ups, they may be eligible to apply for permanent residence in Canada. The applicants need not prove that they will be creating any jobs.

• Self-employed persons

Applicants in this category must have the intention and ability to be self-employed after they become permanent residents of Canada. Previous experience requirements include athletic participation at world-class level; self-employment in cultural activities/athletics; or farm management experience. The applicants should be able to demonstrate that they their self-employment in Canada and would benefit Canada’s culture and economy. The required pass mark for the five selections factors is 35 points.

• Investors –temporarily stopped accepting applications
• Entrepreneur – temporarily stopped accepting applications

If you are applying for permanent residence in Canada or sponsoring family members for permanent residence in Canada you should consider the immigration law implications when dealing with matters concerning your property and relationships. Our team of legal professionals have extensive experience in dealing with complex matters that can affect your or their family members’s immigration matters.

Sponsorship undertaking

Canadian citizens and permanent residents can sponsor their spouses, common-law partners, parents and grandparents for permanent residence in Canada. At the time of submitting the application for permanent residence for their relatives, a sponsorship undertaking is to be given to the Citizenship and Immigration Canada. The undertaking is a commitment by the sponsor to provide financial support and basic requirements to relatives being sponsored. After the sponsored relatives become permanent residents of Canada they may claim social assistance if their sponsored relative does not provide the financial support and basic requirements. The sponsors then become responsible to repay any social assistance to the Province that paid the social assistance. Co-signers to the undertaking are jointly and severally or solitarily responsible for the obligations and are liable for any breach.

Depending on the relationship between the sponsor and the person being sponsored, the duration of the commitment to provide support varies between three years and 20 years.

Eligibility to sponsor close relatives

If the sponsor fails to provide financial support or has not repaid the sponsorship debt to the Province, he or she may not be eligible to sponsor another relative. Other reasons that may make a sponsor ineligible include defaulting on a support order, receiving financial assistance from government except for disability, being convicted of or an attempt to commit an offence against a relative causing bodily harm etc.

Two year conditional permanent resident status

For applications filed after October 25, 2012 by a Canadian citizen or permanent resident to sponsor his or her spouse or partner for permanent residence in Canada, subject to certain exceptions, the sponsor and the sponsored person must live together for two years after the sponsored person gets permanent residence in Canada.

Immigration status in Canada does not affect family law matters, but a restraining order, divorce or separation may result in you or your spouse or partner loosing immigration status in Canada. Charges of assault by one spouse or partner against the other could result in the accused spouse’s removal from Canada.

• Immigration and Refugee Protection Act (IRPA) objective: Protecting  the health and safety of Canadians and maintaining the security of the Canadian society
• Inadmissible

Defending a non-Canadian charged with a crime can be complex. Commission of a crime or conviction for a crime can result in a person being denied a temporary or permanent resident visa. If you are not a Canadian citizen, the decision by the court may lead to your removal from Canada. If charged with a crime, you should immediately seek legal advice for criminal as well as immigration law.

A permanent resident of Canada or a foreign national can be denied entry into Canada or removed from Canada if convicted in Canada under the Act of parliament for an offence punishable by 10 years or an offence for which imprisonment for six months or more has been imposed. The individual can be “criminally inadmissible” for both minor and serious offences, such as a DUI, theft, assault, and dangerous driving etc.

A foreign national (not a permanent resident) can be “criminally inadmissible” if convicted in Canada by way of an indictment or convicted under any Act of Parliament for two offences not arising out of a single occurrence.

Anyone who is inadmissible to Canada may be eligible to apply for criminal rehabilitation.

A person committing a serious crime that is punishable by 10 years maximum imprisonment is also inadmissible. Individuals subject to criminal proceedings in foreign jurisdictions, participating in organized crime, smuggling people, money laundering, or being a member of an organization engaged in organized criminal activity can be denied entry into Canada.

A foreign national can also be inadmissible on grounds of an inadmissible family member.

An individual can lose his or her right to appeal for inadmissibility if found inadmissible on the grounds of:

• Security;
• Violating human or international rights, serious criminality (a crime punishable by at least two years imprisonment in Canada) ; or
• Organized criminality
• Misrepresentation, unless the foreign national is the sponsor’s spouse, common-law partner or child.

A Canadian citizen or permanent resident may not be eligible to sponsor family members if convicted of an offence of a sexual nature; a violent crime; or an offence against a relative that results in bodily harm; or an attempt or threat to commit any such offences. The sponsorship bar also applies if the sponsor is charged with an offence under the Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or if the sponsor is in prison.

If any of the above conditions apply to you, you should seek legal advice immediately.

If either a CBSA officer or a member of the IRB’s Immigration Division determines that a person has not complied with the Immigration and Refugee Protection Act, he or she may issue one of the following removal orders:

Departure order: A departure order requires that the person leave Canada within 30 days after the order becomes enforceable.

Exclusion order: A person who has been removed as a result of an exclusion order cannot return to Canada for one year unless the written permission of the CBSA is obtained. However, people who are issued exclusion orders for misrepresentation cannot return for two years without written authorization from the CBSA.

Deportation order: A person who has been removed as a result of a deportation order is permanently barred from returning to Canada. Such people may never return unless they receive written permission from the CBSA.

Common-Law Partner

You can sponsor a person as your common-law partner if:

• That person is of the opposite or same sex; and
• You and your partner have lived together in a conjugal relationship for a period of at least one year.

Conjugal Partner

According to the application, the conjugal category is intended for partners of Canadian sponsors who would ordinarily apply as:

• Common-law partners but cannot meet the definition, that is were not able to live together continuously for one year with their sponsor; or
• Spouses, but marriage to their sponsor is usually not an available option to them, usually because of marital status or sexual orientation, combined with an immigration barrier (for example, rules preventing partner and sponsor of long stays in one another’s countries).

For more detailed information, see section “5.25 Characteristics of conjugal relationships” of OP 2.

Dependent Child

For sponsorship purposes, a dependent child may be your own child or those of the person you are sponsoring. According to Citizenship and Immigration Canada, they must:

• Be under the age of 22 and not a spouse or common-law partner; or
• Have depended substantially on the financial support of a parent and have been continuously enrolled and in attendance as full-time students in a post-secondary institution accredited by the relevant government authority since before the age of 22; or
• Have depended substantially on the financial support of a parent since before the age of 22 and unable to provide for themselves due to a medical condition.

Two-year PR Condition

Applies if the couple:

• • is married for two years or less; or
  • dated for four years, but is married for two years or less; or
  • have been in a conjugal relationship for two years or less; or
  • has cohabited in a common-law relationship for two years or less; and
  • Do not have any children in common

Does not apply if the couple:

• • is married for more than two years; or
  • have been in a conjugal relationship for more than two years; or
  • has cohabited in a common-law relationship for more than two years; or
  • Have children in common.

Close Family member (other than spouse, partner or child)

• his or her father or mother,
• his or her grandfather or grandmother,
• a child he or she adopted outside Canada or intends to adopt in Canada,
• his or her brother, sister, nephew, niece, grandson or granddaughter, and be an orphan, under the age of 18 and not a spouse or common-law partner,
• his or her relative, regardless of your age, if the sponsor does not have a spouse, common-law partner, conjugal partner, son, daughter, mother, father, brother, sister, grandfather, grandmother, uncle, aunt, nephew or niece, who is a Canadian citizen, Indian or permanent resident or whose application for permanent residence in Canada he or she could sponsor.