On February 11, 2015, Citizenship and Immigration Canada (CIC) issued amended regulations meant to enhance accountability for employers that hire foreign workers under the International Mobility Program (IMP), that is, those hiring foreign nationals who are exempt from the Labour Market Impact Assessment (LMIA) process. The amended regulations are in line with Canada’s attempts to strengthen its immigration and work permit laws pursuant to the Economic Action Plan 2014 of the Government of Canada.
The LMIA-exempt categories include the following:
- workers covered under international agreements (e.g., the North American Free Trade Agreement (NAFTA)),
- intracompany transferees who are temporarily assigned to work in Canada from an affiliated company abroad,
- individuals whose work will provide a significant economic and other benefit to Canada, and
- individuals holding academic research and related positions.
The new rules significantly change the way in which foreign nationals can apply for those LMIA-exempt work permits and impose additional compliance obligations on Canadian employers hiring such LMIA-exempt foreign nationals.
Effective February 21, 2015, Canadian companies hiring LMIA-exempt foreign nationals are required to electronically submit information about their business or organization through Form IMM 5802 Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment and pay a $230 CAD employer compliance fee online using the “Pay Your Fees” page on the CIC website. Note that the new $230 CAD employer compliance fee does not apply to employers hiring foreign nationals who hold “open work permits” exempt from the LMIA process. Instead, they will be subject to a new privilege fee of $100 CAD. An open work permit allows a foreign national to work for any employer in Canada, such as work permits issued to individuals under the International Experience Canada program, to spouses of skilled workers, and to students pursuing postgraduate work.
The employer compliance fees collected will help CIC to offset the cost of introducing more comprehensive employer compliance activities and conducting enforcement inspections of employers. The specific information that Canadian employers must submit online to CIC under these new rules includes the company’s name, contact information, Canada Revenue Agency Business Number, and details on how the proposed employment and the individual qualify for processing under the IMP. So far, CIC has not stated how quickly a request to approve a prospective Canadian employer and its offer of employment to a foreign national under the IMP will be processed.
The IMM 5802 form must be completed and the fee must be paid before the prospective employee arrives at the border to request the LMIA-exempt work permit. The employer must give a copy of the fee payment receipt and the completed IMM 5802 form to the employee to present to the Canadian Border Service Agency officer upon arrival. An LMIA-exempt foreign national will not be able to get an employer-specific work permit if his or her prospective Canadian employer has not submitted the required information and paid the fee before the work permit application is submitted
Failure to comply with the new requirement can lead to significant penalties ranging from a monetary penalty to a ban from hiring foreign workers, and in more egregious cases can even lead to criminal prosecution.
Ogletree Deakins will continue to monitor implementation of these new requirements and will provide further updates as more information becomes available from CIC. Employers that are hiring foreign nationals from visa-exempt countries (like the United States) and that are unsure about whether an LMIA-exemption applies, may first request an assessment (called an “opinion request”) from a Temporary Foreign Worker Unit (TFWU) in Canada.