Thursday Thinkpiece: Temporary Entry Into the Canadian Labour Market

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Temporary Entry into the Canadian Labour Market

Series: Immigration Law Series
Authors: Stephen Green, Alexandra Cole, Cristina Guida and Peter Salerno
General Editors: Chantal Desloges & Cathryn Sawicki
ISBN: 978-1-77462-011-3
Publisher: Emond Publishing
Page Count: 462
Publication Date: February 2021
Regular Price: $99

Excerpt: Chapter 5 “Authorization to Work Without a Work Permit”, section I. “Introduction”.

I. Introduction

As noted previously in Chapters 3 and 4, a foreign national may be authorized to work temporarily in Canada pursuant to an employer-specific or open work permit. The issuance of an employer-specific work permit typically requires the prospective employer to obtain a labour market impact assessment (LMIA) or submit an offer of employment electronically in the Employer Portal under the International Mobility Program (IMP).

A foreign national may also be authorized to work temporarily in Canada without the requirement to obtain a work permit. This authorization to work temporarily in Canada without a work permit normally falls under section 186 of the Immigration and Refugee Protection Regulations [1] or under the Global Skills Strategy (GSS). This chapter provides an overview of work activities that are exempt from requiring a work permit and the corresponding application requirements.

The general list of work-permit-exempt activities and their corresponding sections of the IRPR and IRPA is shown below:

• Business visitors (IRPR, s 186(a)).
• Foreign representatives (IRPR, s 186(b)).
• Family members of foreign representatives (IRPR, s 186(c)).
• Military personnel (IRPR, s 186(d)).
• Foreign government officers (IRPR, ss 186(e) to (e2)).
• On-campus employment (IRPR, s 186(f )).
• Performing artists (IRPR, s 186(g)).
• Athletes and team members (IRPR, s 186(h)).
• News reporters and media crews (IRPR, s 186(i)).
• Public speakers (IRPR, s 186(j)).
• Convention organizers (IRPR, s 186(k)).
• Religious leaders (IRPR, s 186(l)).
• Judges, referees, and similar officials (IRPR, s 186(m)).
• Examiners and evaluators (IRPR, s 186(n)).
• Expert witnesses or investigators (IRPR, s 186(o)).
• Health care students (IRPR, s 186(p)).
• Civil aviation inspectors (IRPR, s 186(q)).
• Aviation accident or incident inspectors (IRPR, s 186(r)).
• Crew members engaged in transportation (IRPR, s 186(s)).
• Emergency service providers (IRPR, s 186(t)).
• Implied status (IRPR, s 186(u)).
• Off-campus work (IRPR, s 186(v)).
• Off-campus work (transition to post-graduation status) (IRPR, s 186(w)).
• Registered Indians (IRPR, s 186(x)).
• Public Policy: Short-term work permit exemption (IRPA, s 25.2).
• Public Policy: 120-day work permit exemption for researchers (IRPA, s 25.2).

Each of these activities, in addition to the GSS 15-day and 30-day work permit exemption categories, will be reviewed in further detail below.

A. Where to Apply

The application for a work permit exemption may be submitted before entering Canada or, if the foreign national does not require a temporary resident visa (TRV) and holds a valid electronic travel authorization (eTA), the application may be submitted upon entry. When submitting the application before entering Canada, the foreign national will apply for a TRV and submit evidence of eligibility for a work permit exemption under section 186 of the IRPR or the GSS as part of the application. If the eligibility criteria are met, the TRV will be issued if necessary, and the foreign national will be eligible to travel to Canada under the work permit exemption. The foreign national will still be required to satisfy a Canada Border Services Agency (CBSA) officer that they are eligible in order to be granted entry to Canada under the work permit exemption.

PRACTICE TIP

Just as a Canadian employer can request an opinion from the International Mobility Workers Unit (IMWU) to determine if an LMIA exemption applies to a particular hiring scenario, as noted in Chapter 4, Section I, “International Mobility Program,” the employer can also request the IMWU to issue opinions as to whether an exemption applies to the work permit requirement. The IMWU can be contacted by email at <IRCC.DNIMWU-UMITRN.IRCC@cic.gc.ca> if the temporary foreign worker is located outside Canada and their country of citizenship is visa-exempt. When contacting the IMWU, the employer should provide information about their business, staffing needs, the position being offered, and the foreign national’s curriculum vitae. If the opinion indicates that an exemption applies to the work permit requirement, the employer can provide the foreign national with the opinion as a supporting document to include when submitting their application. It is important to keep in mind that the IMWU opinion is not binding, and a CBSA officer at the border will conduct a separate analysis of the application for a work permit exemption.[2]

In the event a foreign national has entered Canada as a visitor, they may subsequently submit an extension of their visitor status application from within Canada [3] along with the request for authorization to work without a work permit under sections 186(b) to (x) of the IRPR.

PRACTICE TIP

If a temporary resident is inside Canada and authorized to work without a work permit under sections 186(b) to (x), the foreign national is eligible to apply for a work permit from within Canada pursuant to section 199(b) of the IRPR. This ability to submit the work permit application may be useful to foreign nationals already residing in Canada if, for instance, a job offer requiring a work permit is received while the foreign national is inside the country. By way of comparison, a foreign national who holds visitor status in Canada per section 193 of the IRPR, or entered Canada as a visitor for business purposes under sections 186(a) and 187, may not apply for a work permit from within Canada.

B. Visitor Record Issuance

Although a work permit will not be issued, a foreign national who is eligible for authorization to work under sections 186(b) to (x) of the IRPR may request a visitor record to be issued to them at the port of entry. A visitor record is a status document that may be issued to a visa-required or visa-exempt foreign national. For applicants who are already in Canada, a visitor record may be issued by the IRCC visa office responsible for processing the application.

All temporary residents must adhere to the general conditions listed under section 183 of the IRPR, such as leaving Canada at the end of their authorized stay. In addition to these general conditions, the IRCC or CBSA decision-maker may issue a visitor record that stipulates specific conditions pursuant to section 185 of the IRPR. Thus, a visitor record issued to a foreign national who is eligible for work authorization under sections 186(b) to (x) of the IRPR may indicate:

• the fact that the period of time authorized for their stay in Canada has been extended beyond the six-month standard for visitors; [4]
• the work that they are permitted to engage in, or are prohibited from engaging in, in Canada;
• the area within which they are permitted to travel, or are prohibited from travelling, in Canada; and
• the times and places at which they must report for:
  –– medical examination,
  –– surveillance,
  –– treatment, and/or
  –– presentation of evidence of compliance with applicable conditions.

Best practice is to advise foreign nationals applying at the port of entry to request a visitor record to be issued to them in the interests of confirming the conditions of their entry. Individuals entering Canada on an intermittent basis may also wish to request a visitor record for the duration of their assignment in Canada because it can assist with facilitating future entries to Canada for the same purpose. Although the holder of a visitor record does not authorize re-entry to Canada, presenting the visitor record will assist the CBSA officer when assessing the purpose of travel and whether the applicant will or will not enter the labour market each time they seek intermittent re-entry to Canada during the course of the assignment.

It should also be noted that a CBSA decision-maker is not obliged to issue the visitor record, and it is within the decision-maker’s discretion not to do so. If the foreign national is not issued a visitor record on first entry, the foreign national may still make the request on a subsequent entry.

For foreign nationals entering Canada under sections 186(b) to (x) of the IRPR, it may be important to obtain a visitor record to enable them to apply for and be issued a Social Insurance Number (SIN) by Service Canada and receive payment from the employer in Canada. [5] It is best practice to explain this reason to the decision-maker to assist in facilitating the issuance of a visitor record.

____________

[1] SOR/2002-227 [IRPR].
[2] Immigration, Refugees and Citizenship Canada (IRCC), “International Mobility Workers Unit: Help for Employers” (last modified 12 August 2020), online: Government of Canada
<https://www.canada.ca/en/immigration-refugees-citizenship/services/work-canada/hire-temporary-foreign/international-mobility-workers-unit.html>.
[3] IRPR, ss 183(5) and (6).
[4] IRPR, s 183(2).
[5] Where the source of remuneration is not in Canada, best practice is to advise the company and foreign national to seek professional tax advice to determine if taxes should be filed in Canada and if the temporary foreign worker is required to have a SIN.