Northern Exposure

New work permit requirements apply whether employer is in Canada or U.S.

by Gilda Villaran

Employers whose employees must apply for a work permit or extension in order to work in Canada should be aware of a new compliance form and fee that they must submit before the person applies for the work permit. This came into effect February 21. Ports of entry into Canada may refuse to issue the work permits if the employer’s form and fee have not been submitted in advance.

In most instances, ports of entry are being facilitative and simply defer admission into Canada until the compliance formalities have been fulfilled. But ports of entry are under no legal obligation to be facilitative. They have the authority to simply refuse entry. Of course, even in cases where admission is simply deferred, applicants whose passports are being held at the border and who are asked to return the next day, go through quite a stressful experience.

So please be informed that before a person asks for an employer-specific work permit that is exempted from a Labour Market Impact Assessment (LMIA), the prospective employer needs to first submit the compliance form (IMM 5802) and pay the compliance fee of $230 Canadian.

There are a few specific exemptions, but the rule applies to the vast majority of LMIA-exempted work permit applications, primarily those applying as professionals or intra-company transferees. Since this is an obligation on employers, there is no need for an applicant to pay the fee when applying for an open work permit, where the employer is not specified in the work permit and the person is authorized to work for any employer.

The new requirement came into force through an amendment to the Immigration and Refugee Protection Regulations. It must be met by the employer before a work permit application is submitted by the individual. The fee also needs to be paid in cases of extension of work permits.

In cases when the regulations authorize work without a work permit (for instance, admission for business visits), since there is no work permit issued there is no compliance form or fee to submit.

Both the payment of the fee and the filing of the form must be done by the employer electronically, following the precise instructions provided by Immigration Canada. Lawyers and other authorized representatives also can pay/submit on behalf of their clients as long as they submit a duly signed use of representative form.

A copy of the form and proof of submission should be included in the worker’s work permit application package. The information is then recorded so that, if later there is a compliance review, Immigration Canada can verify that the employer has respected the terms and conditions of the offer of employment disclosed when the application was approved.

Unfortunately, many questions remain unanswered concerning the application of this amendment. Many of these questions concern the definition of employer. In particular, cases that lend themselves to confusion include those in which the Canadian company benefiting from the services of the work permit holder isn’t the worker’s employer.

For instance, when a management consultant, who is the employee of a foreign consultancy, comes to provide services to a Canadian client, he will clearly not be the employee of the Canadian client. In such cases, several port of entry officers have accepted that the U.S. employer should submit the form. But some others would prefer to see a Canadian “employer” when in fact there is none. We look forward to receiving clarification guidelines from Immigration Canada.

Also, it is not clear whether the form and fee must be submitted in cases where there is no new offer of employment but a variation in the terms and conditions of employment, such as changing the name of the employer or the employment location in the work permit. While it would be defensible to state that there is no new employment offer in such cases, until we receive a different instruction we are advising clients to take the safe course and submit the new form and fee. It is hoped that if the fee is not in fact required, Immigration Canada will reimburse it.

The introduction of these additional requirements responds to the objective of Immigration Canada to maintain the integrity of the international mobility program and to ensure that employers respect their obligations. However, those employers who have always been compliant and respectful of laws and regulations end up paying the price for abuses by others, being burdened with additional paperwork and disbursements. Definitely, getting work permits for foreign employees is not becoming easier.