General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

The Immigration and Refugee Protection Act (IRPA) is the primary federal legislative framework governing the general principles, criteria and powers relating to immigration decision-making set by the Canadian government. The IRPA allows the Immigration Minister to issue special ministerial instructions to immigration officers who will then implement and enforce the government’s immigration mandate. To that end, Ministerial Instructions have been used to establish caps for certain immigration categories and to pause and resume processing of applications, as well as to create new economic class pilot programmes. The IRPA is complemented by the Immigration and Refugee Protection Regulations (IRPR), which comprise the IRPA’s definitions and procedural matters, and specify how the IRPA is to be applied.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Canada is party to a number of bilateral and multilateral free trade agreements that include immigration provisions to facilitate the temporary entry of business visitors, foreign workers and investors. See question 23.

Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

Under Canada’s Constitution, jurisdiction over immigration is shared between the federal, provincial and territorial governments. At the federal level, Immigration, Refugees and Citizenship Canada (IRCC) is responsible for the administration and enforcement of the IRPA by processing and rendering decisions on all immigration applications to Canada. Canada Border Services Agency (CBSA) is the federal department responsible for port-of-entry services and customs-related issues. The provinces also exercise key powers over immigration policy in the provision of social services and education and play an important role in immigration settlement services, such as housing, job training and language education.

The right to challenge a decision made on an immigration application depends on the immigration category under which the application was made. The Immigration and Appeal Division of the Immigration and Refugee Board, Canada’s largest independent administrative tribunal, hears appeals on immigration-related matters, including removal orders, residency obligations and sponsorships.

Government policy

In broad terms what is your government’s policy towards business immigration?

Canada offers an expansive immigration framework that allows for the selection of foreign nationals as permanent and temporary residents. Canada’s immigration laws, regulations and guidelines are centred on the screening and approval of the admission of temporary foreign workers, students, visitors and immigrants who will enrich Canada’s social, cultural and economic growth, while filling gaps in Canada’s labour market.

Under Canada’s Liberal government, a number of reforms in immigration law have taken place and continue to be under way, starting with the renaming of Citizenship and Immigration Canada as the IRCC, and the appointment of a new IRCC minister, Ahmed Hussen. The Liberal government, elected in 2015, has pledged to be facilitative in its immigration mandate, by developing broader opportunities for business immigration while also facilitating personal immigration with a focus on prioritising family reunification. In this respect, the government has carried out the following:

  • quadrupled the cap of parent and grandparent-based sponsorship applications to 20,000 in 2019;
  • provided more opportunities to obtain permanent residence (PR) through the Express Entry system; and
  • eased the path to permanent residency for international students and individuals with prior Canadian work experience.

The government has increased the maximum age of dependants to ‘under 22’ from ‘under 19’, thereby allowing families to immigrate to Canada together. Children who are 22 years of age or older and who rely on their parents because of a physical or mental health condition also continue to be considered dependent children. Other notable changes include the creation of Canada’s new Global Skills Strategy, designed to help employers attract skilled talent to Canada, the signing of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), which took provisional effect on 21 September 2017, and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which entered into force on 30 December 2018.

Employer compliance

To enforce its immigration policy objectives, the government has implemented greater measures surrounding immigration compliance, particularly in the area of temporary residence, to ensure that the employment of foreign workers recruited by Canadian employers is consistent with Canada’s goals regarding economic immigration and prosperity. In this regard, the government has imposed additional requirements for all companies seeking to support a work permit application for a foreign national in Canada.

As of February 2015, IRCC requires all employers who support a foreign national to either meet rigorous requirements as part of a Labour Market Impact Assessment (LMIA) or, if applying under an LMIA-exempt work permit category, to register and complete an employer compliance filing. This has provided the government with the means to conduct in-depth compliance reviews of all work permits and is designed to strengthen the enforceability mechanism of employer compliance.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

Entry visa requirement

Citizens of certain countries or territories seeking to enter or transit into Canada may require an entry visa, known as a temporary resident visa (TRV). The requirement for a TRV is not based on duration in Canada; rather, the framework is premised on the foreign national’s citizenship at the time of entry to Canada. A foreign national who requires an entry visa must apply for a TRV at a visa post abroad before entering Canada. If the foreign national is already a temporary resident in Canada with valid status, and his or her current TRV has or is soon to expire, he or she may apply for a new entry visa to a designated visa office in Canada.

Pursuant to its mandate to facilitate the temporary entry of low-risk travellers, the Canadian government removed the visa requirements for citizens of Bulgaria and Romania as of 1 December 2017 and for citizens of the United Arab Emirates as of June 2018, and has relaxed visa requirements for nationals of certain other countries, including Brazil. With future changes to entry visa requirements expected to be announced in 2019-2020, it is recommended to verify requirements as the need for entry arises. Up-to-date information on TRV requirements can be found at the IRCC website at www.cic.gc.ca/english/visit/visas.asp.

Electronic Travel Authorization

From 10 November 2016, foreign nationals from visa-exempt countries who fly to or transit through Canada must obtain an Electronic Travel Authorization (eTA) prior to boarding their flight. This requirement, introduced in 2015, is a pre-screening measure to aid in the identification of high-risk travellers, and prevent their travel to Canada. Certain visa-exempt travellers are, however, exempt from the eTA requirement including, but not limited to, US citizens, the UK royal family and those travelling to Canada by land or sea.

The eTA application is an online-based process, requiring applicants to submit basic information pertaining to their identity, details of their visit to Canada and personal history. Once issued, the eTA is valid for five years or until passport expiry, and is linked to the passport with which the application was submitted. The eTA does not replace or supplant existing immigration requirements related to the purpose of the travel (eg, visit, work or study) and is not an immigration status document (eg, TRV, work authorisation, work permit or study permit).

Biometrics

Since 2013, citizens of approximately 30 countries deemed to be high-risk from a security perspective have been required to provide biometrics (eg, fingerprints and photographs) as part of the immigration process. As of 2018, this requirement has expanded to apply to most foreign nationals applying for a Canadian TRV, work or study permit, permanent residence or refugee status. Since 31 December 2018, biometrics collection became mandatory for applicants from Asia, the Asia-Pacific region and the Americas. This requirement has applied to applicants from Europe, the Middle East and Africa since 31 July 2018. Visa-exempt foreign nationals will be able to give biometrics upon arrival in Canada while visa-required foreign nationals will need to provide biometrics in advance through a Canadian visa application centre abroad. There are certain exemptions to the biometrics requirement, notably for US citizens applying for a work permit or study permit.

Work permit requirements for short-term transfers

Under section 2 of the IRPR, ‘work’ is defined as an activity for which wages are paid or commission is earned, or that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market. A work permit, an official immigration document to legally authorise a foreign national’s work, is generally required for any foreign national seeking to enter and engage in business in Canada, irrespective of the length or duration of stay. In limited circumstances, however, authorisation to work or engage in business in Canada without a work permit may be issued in limited contexts as laid out in section 186 of the IRPR, which includes business visitors, foreign representatives and their families, military personnel, foreign government officers, performing artists, athletes and team members, news reporters and crew, public speakers, clergy, convention organisers and crew members, among others. Highly skilled workers in occupations classified as national occupational classification (NOC) 0 or A, who are entering Canada for a maximum period of 15 consecutive days once every six months or 30 consecutive days once every 12 months, may also qualify for a work permit exemption under Canada’s new Global Skills Strategy.

Restrictions

What are the main restrictions on a business visitor?

Business visitor classification

Under Canada’s immigration laws and regulations, a business traveller may enter Canada either as a business visitor or a work permit-required foreign worker. Business visitors are foreign nationals seeking entry to Canada to engage in international temporary business or trade activities in Canada without entering or competing with the Canadian labour market. Minimum criteria for entry as a business visitor are as follows:

  • there must be no entry into the Canadian labour market;
  • the foreign worker’s activity must be international in scope (presumption of an underlying cross-border business activity);
  • the primary source of the worker’s remuneration remains outside Canada;
  • the principal place of the worker’s employer is located outside Canada; and
  • the accrual of profits of the worker’s employer remains outside Canada.

Permissible business visitor activities include, but are not limited to, the following:

  • attending business meetings;
  • attending conferences;
  • engaging in consultations or negotiations on behalf of, and for the benefit of, a foreign employer; and
  • engaging in general discussions.

A business visitor cannot enter Canada to actively manage a Canadian operation or project, or to provide hands-on production of goods or performance of services. Permissible business visitor activities must be of an international nature - the business visitor enters Canada on behalf of, and is paid by, a non-Canadian employer to undertake activities that do not directly challenge the local labour market. Activities that are deemed to be competitive in the Canadian labour market generally require a work permit regardless of duration of stay or source of pay unless a short-term work permit exemption under the IRPR or Global Skills Strategy applies. Ultimately, the final determination of whether the activity constitutes work is within the immigration officer’s discretion and judgement.

Foreign nationals applying for entry as business visitors may do so on arrival at an airport or border crossing if they are visa-exempt, or as part of their TRV application, if required. Duration may be limited by a notation or stamp in the foreign national’s passport or through the issuance of a visitor record. An immigration officer may allow the business visitor to enter Canada for up to six months; however, the officer has the discretion to authorise a longer or shorter entry.

As this area of immigration law can be complex, caution must be exercised to ensure that there is no misrepresentation on the part of the foreign national or the Canadian or foreign employer, or both, as they may face penalties and sanctions.

Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

Generally, the delivery of training is a service for which a work permit is required. There are, however, several exceptions. Specifically, a foreign national may enter Canada as a business visitor to provide or receive short-term training in the following situations:

  • provide or receive training to a Canadian parent or subsidiary of the foreign national’s foreign-based employer;
  • receive training related to goods and services that have been purchased from a Canadian entity; or
  • provide training to end users and maintenance personnel in Canada related to goods that have been manufactured and sold outside Canada.

Where a foreign national provides or receives training in Canada as a business visitor under one of the above exceptions, Canadian citizens or permanent residents must not be displaced as a result of the foreign national’s activities. Trainers and trainees cannot complete hands-on training or engage in any productive work unless the primary purpose of the activity remains the training.

Training may trigger the requirement for a work permit in certain scenarios such as internships, provision of training services while being employed by a Canadian entity (eg, Canadian company hiring a foreign national to train managers) and where the training involves productive work in Canada.

When evaluating the intended training activities under a purchase contract for after-sales service, the immigration officer will consider whether:

  • a valid sales contract for the sale of industrial or commercial equipment or software exists between a Canadian company and the equipment manufacturer outside of Canada;
  • the contract of sale contemplates the training and its scope; and
  • whether the cost of the training is included in the price of the equipment sold, or is charged separately.
Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

All individuals who require a TRV to enter Canada also require a transit visa (TV) when passing through Canada, even if they are in Canada for less than 48 hours. The process for obtaining a TV is the same as for obtaining a TRV; however, TV fees are generally waived. Certain eligible foreign nationals, either under the Transit without Visa Program (applicable to foreign nationals from Indonesia, the Philippines, Taiwan and Thailand) or the China Transition Program, may transit through Canada to and from the US without obtaining a transit visa.

IRCC and CBSA have established programmes that allow certain foreign nationals to transit through Canada on their way to and from the US without a TV or, if a memorandum of understanding exists, provided certain criteria are met.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

Citizens of certain countries, such as most European countries, Australia, Korea and Japan, do not currently require a visa to enter Canada. A list of visa-exempt countries can be found at the IRCC website at www.cic.gc.ca/english/visit/visas.asp.

Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

Temporary Foreign Worker Program: LMIA-based work permits

An LMIA is a labour market verification test whereby Employment and Social Development Canada (ESDC) will analyse an offer of employment made to a foreign national to ensure that the employment of the foreign worker will not negatively impact the Canadian labour market. Unless they qualify for variations to minimum advertising, Canadian employers are required to ‘test’ the labour market by undergoing or conducting minimum advertising and recruitment efforts before making the LMIA application.

In assessing an LMIA application, ESDC will review the following:

  • does the salary offered meet the local prevailing wage for the position?;
  • are the working conditions consistent with Canadian labour and employment laws and relevant collective bargaining agreements?;
  • is there a labour shortage for that occupation in the local area?;
  • are there labour disputes in the particular company and industry?;
  • has the employer sufficiently recruited but been unable to find a Canadian to fill the position?;
  • will the foreign worker transfer unique skills or expertise to Canadian citizens or permanent residents?; and
  • will the hiring of a temporary foreign worker displace or negatively affect the employment of Canadian citizens or permanent residents?

If granted, a temporary LMIA is used by the employer to hire a foreign worker for a finite period. Upon approval of an LMIA, the foreign worker must submit a work permit application to obtain a work permit.

International Mobility Program: LMIA-exempt work permits

There are some work permit categories that do not require a company to go through the LMIA process. These exceptions fall under Canada’s International Mobility Program and can result in both open and employer-specific work permits. Below are the most commonly used exceptions for business immigration.

Intra-company transfer (C12, T24)

The criteria below must be met to apply under the intra-company transfer category either as a specialised knowledge worker or as an executive, senior manager or functional manager:

  • there must be a qualifying relationship between the foreign national’s home employer (outside Canada) and the prospective Canadian employer (ie, affiliate, parent, subsidiary or branch in Canada), both of which must maintain continuous and active operations;
  • the employee must be currently employed by the home employer in a specialised knowledge, senior managerial or executive capacity and have worked in that capacity full-time for at least one continuous year during the three years immediately preceding the date of the work permit application;
  • the foreign worker must be entering Canada for a temporary period to occupy a similar position with the Canadian entity; and
  • the Canadian entity must control the foreign worker’s day-to-day activities while in Canada.

The above criteria applies to all intra-company transferees applying under the general provisions of the IRPR. Certain criteria may be relaxed or different if applying under the intra-company provisions of an international agreement to which Canada is party.

Specialised knowledge workers

Immigration officers apply a rigorous test in determining whether a foreign national’s knowledge is in fact specialised such that he or she may qualify as an intra-company transferee. The test focuses on the applicant’s degree of proprietary knowledge and his or her advanced expertise within the company and industry. Specialised knowledge workers generally possess:

  • abilities that are unusual compared to those generally found in the industry, and that cannot be easily transferred;
  • knowledge or expertise that is highly unusual both within the industry and host firm;
  • proprietary knowledge that is critical to the Canadian company, without which there would be a significant disruption to the company’s operations or business;
  • a clear employment relationship, with intra-company transferees under the direct and continuous supervision of the host company; and
  • experience and knowledge that does not require training at the host company related to the area of expertise.

Specialised knowledge is unique and uncommon, held by only a small number or small percentage of employees within a company. The onus is on the participating entities and the foreign national to demonstrate that they are key personnel, not simply highly skilled. The salary of the specialised knowledge worker must be commensurate with the prevailing wage set by Employment, Workforce Development and Labour for the intended specialist position in the intended work location in Canada.

A mandatory wage floor has also been implemented for most specialised knowledge workers, which is expanded upon in question 20.

Executives, senior managers and functional managers

The foreign worker must manage the company or a major component of a department of the company, manage other staff or manage an essential function of the company. The foreign worker may also be a senior executive or manager who manages both the Canadian and home country departments and may need to implement managerial decisions in Canada, despite not residing or working regularly in Canada.

Reciprocal employment: general guidelines (C20)

Foreign workers may take up employment in Canada where Canadians have similar reciprocal opportunities abroad. The underlying policy objective is to permit Canadian employees to gain international experience and to allow for cultural exchanges.

The onus is on the companies and foreign national to demonstrate that reciprocity exists between the Canadian company and the home employer, generally through a written formal policy. Entry under these reciprocal provisions should result in a general neutral labour market impact.

There is no maximum duration associated with this type of work permit; however, reciprocity must be met for each work permit renewal.

Reciprocal employment: International Experience Canada (C21)

International Experience Canada (IEC) manages work permits based on bilateral agreements between Canada and certain countries. The IEC programme may facilitate the entry and work of international youths through a working holiday programme or other streams as per the respective country agreement (such as young professionals, interns or summer students). This programme is generally available to young people aged 18 to 35 (age criteria is dependent on the foreign national’s country of citizenship) who are citizens of one of the countries with a bilateral reciprocal youth mobility agreement with Canada. IEC is designed to allow young people of participating countries to gain international work experience to bring back to their country. Depending on the participating country and applicable IEC category, the eligible applicant may participate in IEC only once or twice.

The IEC work permit application is a two-stage process whereby the foreign national must first create an online profile expressing interest in applying for a work permit under the IEC programme. Based on the candidate’s eligibility, along with the number of applications received (and the quota for work permits issued under the IEC for that country), candidates are selected and issued an invitation to apply (ITA). With an ITA, applicants may then apply for their work permit at a visa post abroad.

Student work permit: co-op or internship programme (C30)

Foreign nationals studying in Canada are authorised to work part-time on the basis of their study permit. However, those seeking to work full-time as part of a co-op or internship programme may apply for a work permit provided the work forms an essential part of an academic, vocational or professional training programme offered by a designated learning institution. To qualify, the student must hold a current valid study permit and the co-op or internship must not form more than 50 per cent of the total programme of study.

Students studying English or French as a second language, or participating in general interest or preparatory courses, will not qualify for this type of work permit.

Student work permit: off-campus work permit (C25)

Full-time students pursuing an academic, professional or vocational training programme of at least six months’ duration at a designated learning institution are eligible to work off-campus without a work permit for up to 20 hours per week during regular academic sessions, and full-time during scheduled breaks.

Student work permit: post-graduation work permit (C43)

This programme allows international students who have graduated from a participating Canadian post-secondary institution to gain Canadian work experience, which may later help them qualify for Canadian PR, through the Canadian Experience Class.

A post-graduation work permit (PGWP) may be issued for the length of the study programme, up to a maximum of three years. Educational programmes must be a minimum of eight months in length to be eligible for this programme.

To be eligible, the student must apply within 180 days of receiving written confirmation from the educational institution of eligibility to graduate and must hold or have held a valid study permit within 180 days of the date of applying for the PGWP.

Significant benefit to Canada: general guidelines (C10)

The foreign national’s contribution and proposed benefit to Canada should be significant and of social, cultural or economic importance. The immigration officer will analyse the proposed benefits, whether the person’s presence in Canada is crucial to a high-profile event, and whether circumstances have created urgency surrounding the person’s entry. Applicants seeking this type of work permit generally require extensive experience in their field.

Work permit issuance under this category is highly discretionary and will only be granted where benefits to Canada are clear and compelling. Extensions under this category are rarely granted.

International treaty: professional work permits (T23)

The foreign national must be a citizen of a country that is a signatory to the international treaty agreement forming the basis for applying under this category. The foreign national must work as a professional and must satisfy several prescribed eligibility criteria associated with the specific profession (ie, possess requisite minimum educational credentials associated with the intended profession), in accordance with the respective treaty or free trade agreement. In some cases, it may be possible to substitute extensive work experience in lieu of formal educational credentials.

Mobilité Francophone (C16)

The intent of the Mobilité Francophone work permit category is to allow Canada to attract skilled francophone workers to provinces other than Quebec. Under this stream, employers seeking to employ French-speaking foreign nationals in managerial, professional and technical or skilled trade occupations under the NOC skill levels A, B or 0, are not required to seek an LMIA. Recruitment of the foreign national through a francophone immigration promotional event coordinated between the federal government and francophone-minority communities is encouraged, but not mandatory. The officer must further be satisfied that the applicant’s habitual language of daily use is French. Where the officer is not satisfied that this is the case, either an interview or language test results demonstrating an advanced intermediate level or above in French (eg, Canadian Language Benchmark (CLB) of level 7 or higher in the Test d’évaluation de français) may be required.

All work permit applications under this category may be processed by a Canadian visa post outside Canada. Once IRCC approves the work permit application, the applicant will receive a port of entry letter of introduction that may be presented at the border for the issuance of a work permit document.

Dependent work permit: spouse or common-law partner or child

These types of work permits are discussed in question 33.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

The procedure for obtaining work authorisation in Canada may vary depending on the applicant’s circumstances.

For all employer-sponsored, LMIA-exempt work permits, the company in Canada must submit an employer compliance filing before the work permit application may be lodged. The employer compliance filing involves submitting details of the offer of employment (including scope of activities, position, education requirements, hours of work, salary and benefits to be earned while in Canada) via the government’s online employer portal. Once filed, a reference number will be generated, which must be included with the foreign national’s application. All details of the work and offer of employment must be accurate, as the government relies on this data when conducting subsequent immigration audits and employer-compliance reviews.

If a TRV is required or if the work permit category mandates, the work permit application must be made at the appropriate Canadian visa post abroad. Once approved, a TRV will be affixed to the foreign national’s passport and a work permit approval letter will be issued. The foreign national must then travel to the Canadian port of entry where a work permit document will be issued to him or her. If the foreign worker does not require a TRV, then he or she may apply for a work permit directly at the Canadian port of entry (provided that the work permit category permits submitting the application upon entering Canada).

If the foreign national requires an immigration medical examination, the work permit application should be made at the appropriate Canadian visa post abroad. The visa post will then issue medical examination instructions unless the examination results are provided up front.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

The maximum period of authorised work in Canada depends on the work permit category and, in some cases, the type of position in Canada.

Intra-company transfers

The maximum periods for which a work permit may be granted under the intra-company transfer work permit category are:

  • senior managerial and executive category: seven years; and
  • specialised knowledge category: five years.

Initial work permits for intra-company transfers are granted for three years. An initial one-year work permit will be granted to transferees entering Canada to open or work in a new office, as well as those being parachuted into client or project sites. Extensions may be granted for generally up to two years at a time. After intra-company transferees have held a work permit for the maximum time allowed, they must complete one year of full-time employment in the company outside Canada before they may reapply under this category.

There is no set minimum period of stay required under the intra-company transfer provisions. If a foreign worker reaches the maximum period of work permit duration permissible for the specific intra-company transferee category (eg, five or seven years), he or she may be able to ‘recapture’ time spent physically outside Canada during the preceding five or seven-year period. Recapture of time will not be permitted for any time periods of less than one month, or for events that are generally anticipated throughout the duration of a work permit, such as holidays or weekends.

Processing time

How long does it typically take to process the main categories?

See the table below. All processing times are estimates and subject to change. The processing times listed below reflect the average time for the government to render a decision following submission of an application, and do not include visa stamping or postage times for return of passports, if applicable. Under Canada’s new Global Skills Strategy, 80 per cent of online work permit applications submitted from outside Canada requesting employment in NOC 0 or A occupations qualify for the two-week processing standard, which supersedes the processing times listed below.

Typical processing times for work permits (estimates)

LMIAs (required before work permit application can be made at a Canadian visa office or port of entry)

8 to 12 weeks for standard LMIA

LMIAs (highest-demand, highest-paid, or shortest-duration stream only)

10 business days or less

Applications filed at a Canadian visa office (no medical required)

4 weeks (minimum); certain visa posts have higher processing times

Applications filed at a Canadian visa office (medical required)

8 to 16 weeks (minimum)

Applications filed for extension of status in Canada

14 weeks if filed online*

4 to 5 months if filed by courier or mail*

* As of July 2019; subject to change

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

There are currently no additional requirements to obtain a Canadian work permit for the categories for highly skilled or high-wage workers; however, provincial employment standards will apply. If the foreign worker’s position requires approval for an LMIA under the low-wage category, then the employer is responsible for the following:

  • covering the transport costs of the foreign worker to the work location in Canada and back to his or her place of PR;
  • ensuring that the foreign worker has suitable and affordable accommodation available; and
  • covering the costs of the temporary foreign worker’s workplace safety coverage and private health insurance until the appropriate provincial or territorial health insurance plan becomes available.

IEC applicants must provide proof of health insurance when they arrive in Canada.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

All Canadian government departments are given expansive and high-level discretionary authority in interpreting Canadian immigration laws and manuals. IRPA, the primary statute governing immigration law, accords substantial discretion to the Immigration Minister, who advises the Governor in Council on regulations and issues Ministerial Instructions. In addition, administrative guidelines in the form of operational manuals and bulletins assist IRCC and CBSA immigration officers in the immigration decision-making process.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

The federal immigration investor and entrepreneur programmes have been terminated. However, the Quebec investor programme and Quebec entrepreneur programme are still in place with limited numbers of applications being accepted each year. Many of the provincial nominee programmes (PNPs) also have investor and entrepreneur programmes for individuals who wish to start a Canadian business.

In addition, there is a federal self-employed persons programme (available to those with relevant experience in cultural activities, athletics or farm management) and a start-up visa programme that links entrepreneurs looking to relocate to Canada with private sector companies that are experts in start-ups.

PNPs

The majority of provinces or territories can nominate foreign nationals to immigrate to Canada. These individuals must possess the requisite intention, skills, education and work experience to contribute to the economy of that province or territory.

To apply under the PNP, a foreign national must be nominated by a specific Canadian province or territory then apply to IRCC to become a permanent resident.

Provincial objectives are based on labour market needs and skill shortages (among other criteria) and each province and territory has different priorities. Generally, foreign workers may make an application with the support of their employer based on their skills or knowledge in the intended province of residence. In some provinces, individuals who have graduated from a Canadian educational institution may be able to submit an application directly to the PNP for processing, without employer support. Many provinces have specific streams to facilitate the application for PR through entrepreneur or corporate expansion streams. For high net worth individuals seeking to open or expand a business in Canada, the following additional requirements must be met (requirements may vary by province or territory):

  • make a minimum investment depending on the stream, location and sector of the proposed business;
  • create jobs for Canadian citizens or permanent residents; and
  • meet minimum language requirements of CLB 5 or equivalent.

If the PNP approves the application, then a nomination certificate is issued and the foreign national has a limited time to submit his or her PR application to the federal stage.

It is important to note that, once the PNP certificate is obtained, the foreign national may use the document to obtain a temporary work permit to allow the individual to commence work immediately while the PR application is processed.

Processing PNP applications via the Express Entry system

Most Canadian provinces have introduced PNP categories that are processed through the Express Entry system. The application process commences with the foreign national submitting an online profile through the Express Entry portal. In the portal, applicants are asked to select the province they would like to immigrate to, or indicate that they do not have a preference. The various PNP programmes will use the Express Entry system to select individuals who meet the provincial criteria and ask them to formally apply. Process and processing time can differ between provinces. Once a provincial nomination certificate is received, an applicant’s point score under the Express Entry system is increased to a score that virtually guarantees that he or she will receive an ITA for PR in the next draw from the Express Entry candidate pool.

Federal start-up visa programme

To be eligible, a foreign national must:

  • prove the business venture or idea is supported by a designated organisation;
  • demonstrate that the business meets the ownership requirements;
  • meet specific language requirements; and
  • have sufficient settlement funds.
Quebec investor programme

To be eligible, a foreign national must:

  • have sufficient net assets;
  • have experience managing a legal farming, commercial or industrial business, or in a legal professional business; and
  • intend to settle in Quebec and sign an agreement to invest a specific amount.

Other factors, such as the applicant’s age, the nature and duration of his or her professional training and language skills, are taken into account.

Quebec entrepreneur programme

To be eligible, a foreign national must have:

  • sufficient net assets; and
  • at least two years’ experience running a business in the previous five years.

Applicants must also successfully present a business plan that outlines the feasibility and relevancy of the project to Quebec.

Other factors, such as the applicant’s age, language skills, the nature and duration of his or her training, personal qualities and knowledge of Quebec, and the steps taken to acquire a business in Quebec or the ability of the applicant to carry out a business project in Quebec, are taken into account.

In addition, upon the foreign national’s arrival in Quebec, he or she must comply with certain conditions for at least one year during the three years after obtaining permanent resident status.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

See question 16 regarding the special routes available for high net worth individuals seeking PR. These route options are not fast-tracked in processing.

Highly skilled individuals

Is there a special route for highly skilled individuals?

The Express Entry system came into effect on 1 January 2015 and allows IRCC to actively recruit, assess and select skilled immigrants under several federal economic immigration programmes:

  • the Federal Skilled Worker Program (FSWP);
  • the Federal Skilled Trades Program (FSTP);
  • the Canadian Experience Class (CEC); and
  • certain PNPs.

Under this system, foreign nationals who meet the criteria for at least one of the economic immigration programmes will be placed into a pool of candidates and ranked according to a comprehensive ranking system (CRS).

Applicants are awarded points, known as a CRS score, to a maximum of 1,200, on factors including their age, education, work experience and language ability. The highest-scoring applicants will receive an ITA for PR via a federal programme or PNP. An applicant who receives an ITA will have 60 days to submit an online application before the ITA expires. An applicant’s ITA will specify which immigration processing stream he or she has qualified under.

Once the applicant has completed the online profile, it is recommended, but no longer required, that he or she registers on the government’s ‘job bank’, which seeks to match employers with candidates who possess the credentials they are seeking. Having a valid, full-time job offer of at least one year supported by an LMIA or one year of work experience in the offered role will assist candidates in receiving an ITA for PR as the candidate’s points score will be increased by either 200 or 50 points, depending on the role in Canada. Those candidates possessing a valid provincial or territorial nomination will receive an extra 600 points.

Express Entry was created to ensure greater flexibility and better responsiveness to deal with regional labour shortages, and to help fill positions for which there are no available Canadian citizens or permanent residents. Express Entry enables the government to select candidates who are most likely to easily integrate into the Canadian labour market, rather than processing applications on a ‘first come, first served’ basis.

Candidates in the Express Entry pool who do not receive an ITA for PR after 12 months are required to resubmit their profile, provided they still meet the requisite criteria.

The number of ITAs issued in each selection round is determined by the government’s capacity to process applications in a timely manner of six months or less. To date, approximately 80 per cent of Express Entry applications have been processed in six months or less. The categories under which one can apply for PR are as follows. In all cases, the foreign national must show that he or she is not inadmissible, based on security, criminal, health, financial or other grounds.

FSWP

The foreign national must meet the following criteria:

  • at least one year of continuous full-time (or part-time equivalent) work experience in a single occupation within the previous 10 years at NOC skill level 0, A or B;
  • minimum language proficiency;
  • minimum education credentials;
  • plans to live outside Quebec; and
  • sufficient funds, if not otherwise exempt.

If the foreign national meets the above-mentioned criteria, the worker will be assessed against six selection factors (age, education, language ability, work experience, adaptability and arranged employment) that form part of a 100-point grid. The current pass mark to qualify is 67 points.

FSTP

The foreign national must meet the following criteria:

  • at least two years of full-time experience (or part-time equivalent) in a skilled trade within the five years prior to applying;
  • minimum language proficiency;
  • have a full-time offer of at least one year’s employment, or a certificate of qualification in that skilled trade issued by a provincial or territorial body;
  • plans to live outside Quebec;
  • apply within a specific skilled trade identified by IRCC; and
    • sufficient funds, if not otherwise exempt.
CEC

The foreign national must meet the following criteria:

  • have one year of full-time, skilled (NOC skill levels 0, A or B) work experience in Canada within the previous three years;
  • gained the work experience in Canada with proper authorisation to work;
  • plans to live outside Quebec; and
  • minimum language proficiency.
Quebec Skilled Worker Program

Quebec has a special agreement with the Canadian government regarding immigration and has a distinct set of rules for choosing foreign nationals who will sufficiently integrate into Quebec society. Quebec has a points-based system, where a single applicant must score a minimum of 50 points and an applicant with a spouse or common-law partner must score a minimum of 59 points. The foreign national must apply to the Department of Immigration, Diversity and Inclusion for a Certificate of Selection and then apply to IRCC to become a permanent resident.

Quebec experience class

This is an accelerated and simplified immigration programme that will allow temporary foreign workers and foreign students currently in Quebec to apply to immigrate permanently to Quebec.

A foreign national must:

  • have gained work experience or studied in Quebec;
  • plan to live in Quebec; and
  • demonstrate an advanced intermediate level of oral French.
PNPs

See question 16.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

Certain minor children of Canadian citizens are considered Canadian citizens by descent and can apply for proof of citizenship. There are no ancestral or descendent categories for PR or temporary work permits.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

In most cases, employers are expected to meet or exceed the listed prevailing wage for similar positions in the intended location of employment. Non-cash per diems cannot be included in the calculation of the overall wage; however, guaranteed monetary allowances paid directly to the foreign worker can be included.

A special exception to prevailing wage requirement has been provided for specialised knowledge intra-company transferees entering Canada pursuant to an international free trade agreement; however, salaries must still be commensurate with their position.

Resident labour market test

Is there a quota system or resident labour market test?

There are generally no set quotas on the number of Canadian temporary work permits that may be issued. IEC programmes have quotas based on the terms of their respective reciprocal agreements and are typically set on an annual basis.

LMIA applications, including those supporting temporary work permits and those supporting a PR application, require that the labour market be tested prior to making an LMIA application. Further, employers applying for a low-wage LMIA must generally ensure the number of temporary foreign workers does not exceed 10 per cent of their overall workforce if they hired low-wage foreign workers prior to June 2014.

Recruitment and advertising requirements

Before applying for an LMIA, employers must advertise the job vacancy in the Canadian job market for at least four consecutive weeks on the Canadian job bank website, along with two or more additional but distinct recruitment methods consistent with the normal practice for the occupation, one of which must be national in scope. The choice of advertising must be reasonable in light of the position being sought, and at least one job advertisement must remain posted until a final determination has been made regarding the LMIA application. Employers are encouraged and, in the case of low-wage LMIAs, are required to conduct recruitment efforts targeting Canadians who are traditionally underrepresented in the labour market, such as indigenous peoples, new immigrants or persons with disabilities. Employers must be able to demonstrate that they met the advertising requirements by providing proof of their recruitment and advertising efforts to find qualified Canadians and permanent residents. Records of such efforts must be kept for a minimum of six years from the date of the foreign worker’s employment, as the documentation may be requested at any time by Employment, Workforce Development and Labour. Failure to provide proof of recruitment and advertising may result in a finding of non-compliance, upon inspection.

Depending on the position and work location, limited variations to the minimum advertising requirements may apply.

Accepted variations currently include:

  • university professors;
    • air pilots, flight engineers and flying instructors;
    • camp counsellors (Ontario only);
    • recipients of Certificate of Selection (Quebec only);
    • unionised positions where internal recruitment is stipulated;
    • employees of foreign governments;
    • entertainment-specific occupations;
    • in-home caregivers;
    • owner-operators;
    • religious instructors;
    • certain positions for 30 days or less;
    • certain agricultural workers;
    • specialised service technicians or providers;
    • original equipment manufacturers performing warranty work; and
    • certain commercial marine workers within Canadian waters.

The onus is on the employer to demonstrate eligibility for a variation to advertising.

Transition plans for high-wage positions

In the event that employers are applying for LMIAs for high-wage positions, they must (with limited exceptions) submit a transition plan with their LMIA application. The transition plan, which is a requirement over and above the applicable recruitment activities, must indicate how the company plans to reduce its reliance on temporary foreign workers in one of two ways:

  • by engaging in at least three distinct activities to recruit, retain and train Canadians or PRs in the occupation specified in the application and one additional distinct activity to serve underrepresented groups; or
  • by engaging in one activity that facilitates the permanent residency of the temporary foreign worker.

If the employer is chosen for a compliance review or if it plans to renew its LMIA, it will be required to report on the progress of the transition plan. Failure to abide by the company’s commitments in a transition plan may result in a finding of non-compliance and applicable sanctions.

Global Talent Stream

As of 12 June 2017, employers hiring foreign workers for certain technology-driven occupations, or those referred to the programme by one of IRCC’s designated partner organisations, are authorised to submit an LMIA application under the Global Talent Stream (GTS). The GTS facilitates the entry of highly skilled foreign workers by removing the recruitment requirement, reducing the documentation required and significantly improving the processing times for a qualifying LMIA application. The criteria required to qualify for an LMIA under the GTS stream reflect a recognised labour market shortage in the industries and occupations identified and as such, an employer need not demonstrate this.

Employers applying under the GTS must include a Labour Market Benefits Plan in their application, outlining how the foreign national’s employment will positively impact the Canadian labour market. In doing so, employers must commit to pursuing either job creation or upskilling for Canadian citizens or permanent residents and an additional two benefits of their choice.

Dual intent LMIAs

In addition to the temporary LMIA, employers may apply for a dual intent LMIA, with the intention of utilising the LMIA to support both an application for a temporary work permit as well as for PR. In this case, the standard government processing fee is C$1,000 for each temporary worker position and the application will be subject to the standard processing time as outlined in question 13.

Shortage occupations

Is there a special route for shortage occupations?

The GTS includes a list of recognised shortage occupations that are eligible for facilitated and expedited processing under the stream. Several of the PNPs have also created occupation-driven categories to fill regional labour market shortages, through which eligible applicants can generally obtain both a work permit and PR.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

Eligibility requirements for a work permit in Canada depend on the type of work permit and the foreign national’s particular circumstances, including but not limited to the applicant’s nationality, work experience and educational background, as well as the nature of the work and scope of activities to be performed in Canada. Other eligibility requirements apply for intra-company transfers (see question 10) and those entering pursuant to an international treaty.

International treaties

To qualify for a work permit under an international treaty such as the North American Free Trade Agreement, eligibility criteria such as the employee’s citizenship and educational requirements for the specific professional occupation must be adhered to. Canada is currently party to several free trade agreements with countries including Chile, Colombia, Korea, Panama and Peru. On 21 September 2017, the CETA came into provisional effect. This free trade agreement facilitates temporary entry for business persons including business visitors, professionals and intra-company transferees from the European Union. Additionally, the CPTPP came into provisional effect in early 2019, enabling citizens of certain member states to benefit from its temporary entry provisions.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

The key process for third-party contractors is determining the appropriate employer of record for immigration purposes. When making this assessment, the following three-prong test should be applied:

  • who will pay the third-party contractor his or her salary while in Canada?;
  • who will give the third-party contractor instructions regarding day-to-day activities while in Canada?; and
  • who will receive the benefit of the work of the third-party contractor in Canada?

Salary should be given the heaviest consideration, owing to ESDC compliance requirements. After assessment, the entity that holds the balance of these factors will be deemed to be the appropriate employer. For certain LMIA-exempt work permits, the third-party contractor’s employer of record may need to file the employer compliance and remit the employer compliance filing fee. Where circumstances make it possible that more than one employer of record can be identified, preference should be given to any entity located in Canada.

In light of the determination above, the applicant should be assessed under the appropriate work permit category and the application process completed as normal, with disclosure as to the relationship between the various entities.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

Generally, no formalised or regulated skill assessment is required by immigration officers in regard to temporary residence. Licensed professionals may be required to provide proof of licensing (either in Canada or abroad, depending on the type of application), but an assessment of the credentials is not required. The CETA and select other free trade agreements include provisions designed to facilitate the mutual recognition of professional credentials.

Some permanent residency categories do require that credentials be assessed to evaluate Canadian equivalency and assign points for length and level of education.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

Foreign nationals in Canada as business visitors or tourists are not permitted to obtain work authorisation from within Canada, unless they are accompanying a spouse or common-law partner or parent who is a work or study permit holder. Instead, they will be required to make a work permit application from outside Canada, either at a port of entry or at a visa office abroad, depending on visa and work permit requirements. If processed by a visa office, upon approval of the application, the foreign national will be required to exit and re-enter Canada to obtain proper work authorisation by being issued a Canadian work permit.

A visa-exempt business visitor or tourist may also exit and re-enter Canada for the purpose of presenting a work permit application, if the foreign national does not require a TRV and his or her work permit application permits. The immigration officer at the Canadian port of entry will make a final determination as to whether the foreign national will be granted a Canadian work permit.

Exceptions

Dependants of foreign nationals working or studying in Canada who wish to also study or work in Canada may be permitted to make an application for an initial study or work permit through Canada’s inland processing centre.

In addition, a foreign national who is in Canada as a visitor and wishes to apply for a study permit to attend a designated learning institution may be able to do so from within Canada. Such foreign nationals include:

  • minor children studying at the primary or secondary level;
  • exchange or visiting students;
  • students who have completed a short-term course or programme of study that is a condition for acceptance at a designated institution; and
  • family members of a foreign national who holds a study or work permit.
Long-term extension

Can long-term immigration permission be extended?

Long-term immigration permission may be extended for foreign nationals who are visiting, working or studying in Canada. These foreign nationals may make an application to Canada’s inland processing centre to extend their visitor status, work or study permit. When applying for an extension, the foreign national must ensure that he or she continues to meet the requirements of the relevant category under which he or she is applying.

Foreign nationals who apply under the intra-company transfer category must ensure that they have not reached the maximum allowable duration in Canada, as discussed in question 12. In addition, as outlined in question 26, foreign nationals who are on tourist or business visitor status in Canada cannot submit an extension application from within Canada and, if they require a TRV, must apply to the appropriate visa office outside Canada. If they do not require a TRV, they may generally exit Canada and re-enter at the Canadian port of entry to submit a new application.

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

The foreign worker may exit and re-enter Canada at any time during the validity of the issued work permit. The foreign worker, however, will still be subject to examination at the port of entry by an immigration officer as to the worker’s admissibility and ability to undertake the employment, if there is any issue in this regard.

Visa-required nationals must typically maintain a valid entry visa in addition to the work permit to re-enter Canada. With limited exceptions, visa-exempt nationals returning to Canada by air must hold a valid eTA to board a plane to Canada.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

The rules regarding eligibility for PR are discussed in question 18.

An individual applying for Canadian citizenship must be a Canadian permanent resident. The following criteria must be met for an adult applicant to be granted Canadian citizenship:

  • meet the residency obligations;
  • show proficiency in either English or French; and
  • pass a Canadian citizenship examination.

To become a citizen of Canada, applicants must have been physically present in Canada for at least 1,095 days in the five years immediately preceding their application. Applicants may count each day they were physically present in Canada as a temporary resident or protected person before becoming a PR as a half-day towards meeting the physical presence requirement for citizenship, up to a maximum credit of 365 days. Applicants between the ages of 18 and 54 must also meet language and knowledge test requirements. Additionally, applicants must meet all relevant tax filing requirements in three of the five years preceding their application.

An applicant may be ineligible for Canadian citizenship if he or she has been charged with, convicted of, or is currently serving a sentence for, certain criminal offences.

End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

The law does not require that a work permit be cancelled with immigration authorities at the end of the employment period. The work permit expires in accordance with the expiry date stated on the work permit.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

Work permit holders face specific restrictions governing the foreign worker’s permitted employer, occupation, location of employment and duration of stay in Canada. Generally, the foreign worker will only be allowed to work for the employer stipulated, in the occupation noted and the location as provided on the work permit. Work permits expressly prohibit studying in programmes of study of six months or more in Canada, unless authorised by the issuance of a study permit or by the IRPR.

If any of the conditions stated on the foreign worker’s work permit change so as to render the foreign national’s employment outside the scope of the issued work permit, then a new work permit must be obtained prior to the foreign worker assuming the new conditions.

For LMIA-based work permits, employers may also be bound by additional, more rigorous restrictions. Specifically, if there is any change in the foreign worker’s location, working conditions, job duties, occupation or salary, then a new LMIA may be required, along with requisite advertising requirements. An employer is prohibited from implementing these changes to the foreign national’s working conditions until an LMIA approval and a new work permit have been issued.

Dependants

Eligibility

Who qualifies as a dependant?

A dependant is an accompanying family member that is a spouse, common-law partner or dependent child. Family members such as parents or grandparents are not considered dependants.

Spouse or common-law partner

Both opposite-sex, as well as same-sex spouses and common-law partners, are considered as dependants for Canadian immigration purposes. Common-law partners are defined as those who have been living together in a conjugal relationship for a period of one year or longer.

Children

A child, either biological or adopted, is defined as an individual who depends on its parent for financial and other support. Children are considered dependants and may be included in a parent’s Canadian immigration application provided that they are under the age of 22 and do not have a spouse.

In all cases, a child will continue to be considered a dependant, regardless of age, if he or she depends on his or her parents for financial support owing to a mental or physical condition.

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

Dependants are not automatically allowed to work or attend school.

Spouse or common-law partner

A dependent spouse or common-law partner of the foreign national may obtain a work permit under certain criteria, as follows:

  • the foreign national (principal applicant) must have a work permit valid for six months or longer in a skilled occupation (NOC skill level 0, A or B);
  • the foreign national must reside in Canada for the duration of the work permit;
  • the foreign national must have a valid work permit for an eligible occupation in a participating province;
  • the foreign national must have a valid study permit and be a full-time student at an approved Canadian educational institution; or
  • the foreign national must have a valid work permit under the PGWP programme.

If one of the above circumstances applies, then the foreign national’s spouse or common-law partner is eligible to apply for an open work permit, which authorises employment for any employer, in any location and in any occupation other than childcare, health services or primary or secondary education. If the spouse or common-law partner wishes to seek employment in any of these three restricted fields, he or she must undergo and pass an immigration medical exam. The spousal work permit will be valid for the same duration as the foreign national’s Canadian immigration document. There is a mandatory C$100 privilege fee that applies to all open work permit applications, in addition to the standard government processing fee.

If a spouse or common-law partner is not eligible for an open work permit, he or she may still apply to work in Canada by making an application for a work permit under another category, provided he or she meets the applicable criteria. The spouse or common-law partner may also apply for a work permit from within Canada if he or she is currently present and has met all the requirements for temporary residence.

A spouse or common-law partner may also apply for an initial study permit if he or she meets the standard requirements for studying in Canada. However, a study permit is not required if the spouse or common-law partner plans to take a course or participate in a university exchange programme in Canada that lasts six months or less.

Children

Dependent children were previously eligible to apply for work permits under certain criteria through pilot programme schemes in Ontario, Alberta and British Columbia. These programmes closed on 31 July 2014 and have not been extended as at this time. As such, dependent children wishing to work in Canada must apply for their own work permit and meet the requirements of the intended work permit category.

Every minor child in Canada, other than a child of a temporary resident not authorised to work or study, is authorised to study at the preschool, primary or secondary level without having to hold a study permit.

Minor dependent applicants in Quebec will require a Certificate of Acceptance of Québec (CAQ) from the government of Quebec, in addition to meeting the standard requirements for a study permit. Study permits issued to minor dependent children in Quebec are valid for the same length of time as the CAQ.

Children attending higher education establishments, even where they are considered to be a dependant for immigration purposes, must meet the standard requirements to obtain a study permit. Study permits at this level are normally issued for the full length of the intended period of study in Canada, plus 90 days (maximum four years).

Access to social benefits

What social benefits are dependants entitled to?

Social benefits for dependants do not fall under the realm of Canadian corporate immigration.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

Under Canada’s immigration laws, prior criminal convictions may, depending on the nature of the crime and number of convictions, render a foreign national criminally inadmissible to Canada. The following criteria must be taken into account:

  • particular circumstances of the case;
  • nature, number, time or date of offences; and
  • equivalent offences in Canada.

If the foreign national is considered to be criminally inadmissible, this issue may be resolved by applying for individual rehabilitation or, if a temporary solution is required to facilitate short-term entry, by applying for a temporary resident permit (TRP). On application and approval, a TRP will allow a foreign national to enter Canada if it has been less than five or 10 years since the completion of the sentence, and the foreign national has a compelling reason to enter Canada. An officer will decide if the foreign national’s need to enter or stay in Canada outweighs the health or safety risks to Canadian society. Upon issuance of the TRP, the foreign national may enter and reside in Canada temporarily despite his or her inadmissibility.

A foreign national may apply for a TRP at a visa post abroad or at the Canadian port of entry; however, if filed at the port of entry, the immigration officer has the discretion to defer the application to a visa post abroad. A TRP may be issued for any length of time up to three years, and may be extended from within Canada. However, a TRP is generally issued as a single-entry short-term solution.

Most visa-exempt foreign nationals require an eTA to board a plane to Canada. A visa-exempt foreign national travelling to Canada by air will be required to disclose any past criminal incidents as part of the eTA application process. The disclosure of a criminal history is likely to delay the processing of an eTA application and may trigger the need to apply for a TRP or rehabilitation through a visa office abroad.

A foreign national will not be considered criminally inadmissible to Canada if he or she is deemed rehabilitated. Rehabilitation removes the grounds of criminal inadmissibility for immigration purposes. Once granted rehabilitation, the foreign national is no longer inadmissible to Canada and is not required to apply for any further TRPs.

Any foreign national seeking admission to Canada under any immigration category, including as a tourist, has a positive obligation to disclose all criminal charges and convictions to the officer reviewing his or her application for admission. Failure to disclose a previous or pending charge or conviction could result in a finding of material misrepresentation, and a bar to admission to Canada for a specified period of time.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

With effect from 1 December 2015, the Canadian government introduced a system of administrative monetary penalties to impose harsh new fines and penalties on employers who are found to be immigration non-compliant. Penalties can be levied for non-compliance with LMIA and LMIA-exempt work permit processes, such as not adhering to conditions stated on a work permit.

Possible penalties for non-compliance in these situations include, but are not limited to, the following.

Employer consequences

These include:

  • imprisonment;
  • civil litigation;
  • monetary fines;
  • company name published on a publicly available blacklist;
  • bar from hiring any foreign workers across Canada; and
  • subsequent applications could attract greater negative scrutiny from IRCC.

Under this regime, employers who are non-compliant may face a ban of one, two, five or 10 years per violation, with the ban length being determined based on the history of violations that occurred previously and the severity of the violation. In the worst-case scenario, employers may receive a permanent ban from hiring temporary foreign workers. In addition, the fines can range from C$500 to C$100,000 per violation, to a maximum of C$1 million.

Foreign worker consequences

These include:

  • fines;
  • arrest and deportation;
  • bar from applying for future work permits;
  • bar from entering the country for either a set or indefinite period of time; and
  • record of non-compliance that would lead to difficulties in entering Canada in the future.
Language requirements

Are there any minimum language requirements for migrants?

Proof of language ability for English or French is required for most economic-based Canadian PR categories and mandatory for Canadian citizenship. The applicant has the option to decide which one of the two official languages he or she is most comfortable using. If the applicant wishes to prove language ability in both languages, he or she may choose which language should be considered his or her first official language and which one should be considered his or her second.

The applicant must demonstrate that he or she meets the required level of language proficiency by completing one of the following third-party language tests designated by IRCC:

  • International English Language Testing System;
  • Canadian English Language Proficiency Index Program;
  • Test d’Evaluation de Francais pour le Canada; or
  • Test de connaissance du Francais pour le Canada.
FSWP

The applicant’s proficiency in English or French is one of six selection factors required for this points-based Canadian PR category. The language proficiency factor comprises a maximum of 28 points that can be awarded to an applicant. The points are awarded based on the applicant’s ability to listen, speak, read and write.

A minimum language threshold exists for each of the four language areas and must be met by the applicant in his or her first official language. An applicant may receive points for his or her second official language if he or she meets the minimum threshold in all four language areas.

CEC

The applicant’s occupation as classified by the Canadian NOC system will dictate the minimum language ability required to qualify under this category. The applicant must meet the minimum threshold in the four language areas.

PNPs

Most PNP applicants for semi and low-skilled occupations must undergo mandatory language testing and achieve a minimum threshold across all four language categories. These requirements vary depending upon the province in which the applicant is nominated.

FSTP

To be eligible to apply under this programme, an applicant must meet a minimum threshold in all four language areas.

Express Entry

Language is also considered at the beginning of the PR process, separate from eligibility within any of the above PR categories, and will affect the foreign national’s points score and likelihood of being selected under the Express Entry system. Specifically, language is included in the overall point calculation both as an individual factor as well as in combination with other factors in the skill transferability matrix. Skill transferability is determined by combining language ability and Canadian work experience with both education and foreign work experience. If a person obtains CLB 9 or above in all four categories, his or her points score in the skill transferability matrix may be significantly higher than if even one of the language category scores is below CLB 9.

Canadian citizenship

Since the introduction of the Canadian Citizenship Act of 1947, adult applicants for Canadian citizenship have been required to have an adequate knowledge of English or French. The Citizenship Regulations outline the criteria for determining adequate knowledge of an official language.

Medical screening

Is medical screening required to obtain immigration permission?

Different criteria govern the requirement to undergo an immigration medical examination, depending on whether the foreign national is entering as a temporary resident or permanent resident.

Temporary residents

For temporary residents, an examination is required if the foreign national:

  • intends to remain in Canada for more than six months; and
  • has resided or sojourned in a medically designated country or territory for six or more consecutive months in the year immediately preceding the date of prospective entry to Canada.

Temporary residents planning to visit Canada for six months or less generally do not require an exam, unless the foreign national plans to work in certain occupations such as the healthcare, childcare or primary or secondary education fields, or the foreign national is an agricultural worker who has visited or lived in a medically designated area for more than six months during the past year.

In addition, foreign nationals who suffer, or have suffered previously, from a chronic or serious medical condition and are seeking to enter Canada as temporary residents, are under an obligation to disclose any medical conditions in their immigration application for admission to Canada. Depending on the circumstances, such foreign nationals may be required to undergo an examination.

Permanent residents

Medical examinations are mandatory for all foreign nationals intending to enter Canada as permanent residents. Dependants of the potential permanent resident are also required to undergo medical examinations, even if the dependants themselves do not plan to enter Canada.

Medical examination

All medical examinations must be completed by a designated panel physician who has been authorised by the government to complete such examinations. IRCC, and not the panel physician, makes the final decision regarding the applicant’s medical exam.

An immigration medical examination is only valid for 12 months from the date the examination is completed.

Biometric requirements

Citizens of all countries, with limited exceptions, are currently required to provide their biometric data, including fingerprints and photographs, as part of any application for a work, study or visitor visa. Applicants will only be required to give biometrics once every 10 years. See ‘Biometrics’ in question 5.

Exemptions

Biometrics are not required where:

  • the individual is a US citizen applying for a work permit or study permit;
  • the individual is coming to Canada for tourism purposes and holds a valid eTA;
  • the individual is under 14 years or above 79 years of age;
  • the individual is a head of state or government, cabinet minister or accredited diplomat on official business in Canada;
  • the individual is a US visa holder transiting through Canada;
  • the individual is a refugee claimant who has already provided biometrics and is applying for a work permit or study permit; or
  • the individual is a Canadian temporary resident who has already provided biometrics in support of a PR application.
Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

There are no set immigration laws that pertain to foreign nationals who are seconded to client sites. The foreign national would still be required to obtain a work permit pursuant to one of the existing work permit categories.

Regardless of secondment, all employer-specific work permits specify the employer and location of employment. If only the client site location is indicated on the work permit, then, by default, the foreign worker may only work at the client site specified on the work permit. It remains the responsibility of the employer, however, to ensure that all conditions associated with the foreign worker’s work permit continue to be met, and that he or she is working in a workplace that is free from harassment or abuse.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Over the past year, the Canadian government has continued its focus on tailoring both permanent and temporary immigration programmes to more effectively respond to Canada’s labour market needs. In doing so, new free trade agreements have opened the doors to even more highly skilled foreign talent, and increased economic immigration targets have improved skilled individuals’ opportunities to remain in Canada. However, with these changes comes the Liberal government’s ongoing commitment to ensuring compliance with immigration laws both on the part of the individual and on the part of the employer. With the next stage in the data collection agreements being implemented, with the collection of data from individuals departing Canada, the expanded collection of biometric data and the increase in unannounced on-site employer inspections, it is now more critical than ever that employers have well-defined policies in place to ensure a responsive and compliant global mobility programme.

The authors would like to thank Lisa Min and Claire MacLean for their contributions to this chapter.