On February 21, 2015, Citizenship and Immigration Canada ("CIC") introduced several significant changes to Canada's International Mobility Program ("IMP”), including new rules surrounding Labour Market Impact Assessment ("LMIA") — exempt work permit applications. The most common LMIA-exempt work permits include intra-company transferees in executive, senior managerial or specialized knowledge roles and professionals under international agreements, such as the North American Free Trade Agreement (“NAFTA”).
The regulatory amendments to the Immigration and Refugee Protection Regulations ("IRPR") were geared towards improving data collection, employer compliance and enforcement and required employers making an offer of employment on an LMIA-exempt basis to submit a completed IMM 5802 — Offer of Employment to a Foreign National Exempt from the Labour Market Impact Assessment ("IMM5802 form") form electronically to CIC via email prior to the foreign national making an application for a work permit and pay a $230 CDN Employer Compliance Fee. The completed IMM5802 form required information regarding the business or organization making the offer of employment, the terms of the employment (or engagement, if part of a contract for service), along with proof of payment of a $230 CAD employer compliance fee to CIC.
However, beginning as of October 26, 2015, CIC has introduced a new electronic system, termed the “Employer Portal”, through which this process will now be completed. The previous IMM5802 form will no longer be accepted.
The Employer Portal
The Employer Portal is for employers participating in the IMP and replaces the IMM5802 Form first introduced by CIC on February 21, 2015 for employer supporting LMIA-exempt work permit applications. As of October 26, 2015, all employers under the IMP, other than those who are exempt from the employer compliance fee, must submit their offers of employment for LMIA–exempt work permit applications electronically via the Employer Portal. The most significant repercussion of the introduction of the Employer Portal is that CIC will no longer accept the email submission of the IMM5802 form. Employers who are exempt from the requirement to pay the employer compliance fee may continue to submit the IMM5802 form to CIC via email. As of November 21, 2015, the CIC will stop accepting the email submission of the IMM5802 form entirely.
Employers should be aware that going forward they must use the Employer Portal to file offers of employment for LMIA-exempt work permit applications. If an IMM5802 form has been submitted to CIC prior to October 26, 2015, the employer should instruct the foreign national to apply for his or her work permit prior to November 21, 2015. Otherwise, the employer will be required to resubmit the offer of employment via the Employer Portal if the foreign national is unable to apply for his or her work permit prior to the November 21, 2015 deadline.
Access to the Employer Portal is only available by way of an electronic credential, through either a GCKey or through a particular designated Sign-In Partner(s). The application through the Employer Portal must be submitted prior to submitting the work permit application.
The Process after the Employer Portal
After an employer successfully submits an offer of employment through the Employer Portal, an offer of employment ID number is assigned to the information submitted. The employer should provide this employment ID number to the foreign national for inclusion in his or her work permit application. The foreign national then completes the work permit application. In turn, CIC or the Canada Border Services Agency reviews the application to determine if the foreign worker is eligible for work in Canada. If the application is accepted, the foreign worker receives either a letter of introduction if they reside outside of Canada or a new work permit if they are residing in Canada or applying at the time of entry into Canada.
The introduction of the Employer Portal forms part of a larger movement to shift many of Canada's immigration application processes to online systems. While it will allow CIC to improve data collection which is to be used for audit purposes to verify employer compliance with the IMP, the Employer Portal was introduced with minimal guidance for employers and their advisors and with immediate effect. Until procedural and technical issues are ironed out, temporary foreign nationals, their employers and their immigration counsel should carefully plan for the entry of temporary foreign nationals under the IMP and, at the very least, be prepared to expect delays while those tasked with administering the system become familiar with the process.