Canadian Immigration Options for High Tech Workers
Co-written with Betsy Kane.
With the uncertainty about immigration in the United States following the recent Executive Order, many companies and foreign workers are looking North to Canada. Here is a brief description of some of the options available to foreign companies and foreign workers seeking to move to Canada.
With the exception of the International Experience Class Working Holiday program, all of the work permit programs discussed below allow the spouses of high skilled foreign workers to obtain open (any employer permitted) work permits and the children of foreign workers to obtain study permits while accompanying the foreign worker in Canada.
Under the current system, after a year of working on an employer-specific work permit in Canada, foreign workers on the employer specific work permits discussed below also benefit from additional points under Express Entry. Express Entry is an online system for applying for permanent residence in Canada. Applicants must be eligible for one of the Canadian economic immigration programs in order to enter the pool of candidates. Candidates are invited to apply for permanent residence based on the number of points they are assigned. Points are assigned for skills, work experience, language ability, education and age. For more information on Express Entry read our blog: Overview of Express Entry following the November 19, 2016, Changes to Express Entry.
Intra-Company Transfer
Foreign workers who are currently employed by multi-national companies can be transferred to a Canadian subsidiary, branch, affiliate or parent company. Both the foreign and Canadian company must be a legitimate and continuing establishment of that company. The foreign worker must be being transferred to a position in an executive, senior managerial, or specialized knowledge capacity. The foreign worker must have been employed continuously by the company that plans to transfer them outside Canada in a similar full-time position for at least one year in the three-year period immediately preceding the date of the initial application.
Intra-company transferee work permits can be issued for an initial period of three years. Intra-company transferee work permits for executives and senior manager can be renewed for a maximum cumulative duration of seven years. Intra-company transferee work permits for specialized knowledge workers can be renewed for a maximum cumulative duration of five years.
Visa exempt foreign nationals with the proper documentation can apply for intra-company transfer work permits at the port of entry at the time they enter Canada. Visa requiring foreign nationals must apply in advance for an intra-company work permit online or by way of paper application at their closest Canadian embassy or Visa Application Centre (VAC). Processing times depend on the embassy assessing the application.
All foreign nationals applying for an intra-company work permit must submit proof that their Canadian employer has submitted an Offer of Employment through the IRCC Employer Portal and paid the $230 employer compliance fee. For further information on submitting an Offer of Employment through the Employer Portal please read our blog on the subject: New CIC Employer Portal For LMIA Exempt Work Permits.
New “Start-Up” Intra-Company Transfer
Foreign workers who are currently employed by multi-national companies can be transferred to assist with a Canadian start-up of a subsidiary, branch, or affiliate. The foreign company must be a legitimate and continuing establishment of that company. Generally, the company must secure physical premises to house the Canadian operation, however, in some cases an application can be made in advance of the company securing physical premises in Canada. The new company will need to be incorporated in Canada and secure a Canada Revenue Agency Business Number to launch the Canadian entity.
In order to qualify, the company must furnish plans to staff the new operation, and have the financial ability to commence business in Canada and to compensate employees. Ideally the company would include a business plan with their submission and proof of their financing or financial capabilities to support the new office and staff.
The foreign worker must be being transferred to a position in an executive, senior managerial, or specialized knowledge capacity. The foreign worker must have been employed continuously by the company that plans to transfer them to Canada in a similar full-time position for at least one year in the three-year period immediately preceding the date of the initial application.
When transferring executives or managers, the company must demonstrate that the Canadian operations will be large enough to support the executive or management function. When transferring an employee with specialized knowledge, the company must demonstrate that that it will be doing business in Canada and that the work will be directed by management at the Canadian operation.
Intra-company transferee start-up work permits can be issued for an initial period of one year. Intra-company transferee work permits to support the opening of a new start-up affiliate, branch or subsidiary in Canada will be issued a work permit for a period of one year. It can then be renewed thereafter on demonstrating that the new company has made progress on their business development plans in Canada.
Visa exempt foreign nationals with the proper documentation can apply for intra-company transfer start-up work permits at the port of entry at the time they enter Canada. Visa requiring foreign nationals must apply in advance for an intra-company start-up work permit online or by paper at their closest Canadian embassy or Visa Application Centre (VAC). Processing times depend on the embassy assessing the application.
All foreign nationals applying for an intra-company work permit must submit proof that their Canadian employer has submitted an Offer of Employment through the IRCC Employer Portal and paid the $230 employer compliance fee. For further information on submitting an Offer of Employment through the Employer Portal please read our blog on the subject: https://www.capellekane.com/new-cic-employer-portal-for-lmia-exempt-work-permits/
NAFTA & Other Free Trade Agreements
Canada currently has free trade agreements (FTA) with the United States, Mexico, Chile, Peru, Columbia, and Korea which allow for ease of entry to Canada for certain professions. Each of these trade agreements includes a list of eligible professionals and/or technicians that are included under each agreement. Some of the free trade agreements, such as NAFTA, apply only to citizens of the countries which are party to the agreement, while others, such as the Canada – Peru FTA, also apply to permanent residents.
The requirements of what needs to be provided under each free trade agreement differs, but generally each application must include confirmation of pre-arranged employment with a Canadian company, evidenced by a signed contract or offer of employment with a Canadian company, or a letter from an employer on whose behalf the service will be provided to the Canadian company. The application should also include information on the proposed employer in Canada, the profession for which entry is sought, details about the position, and evidence that the foreign worker has the minimum education requirements listed in the free trade agreement.
Visa exempt foreign nationals with the proper documentation can apply for free trade agreement based work permits at the port of entry at the time they enter Canada. Visa requiring foreign nationals must apply in advance for free trade agreement based work permits online or by paper at their closest Canadian embassy or Visa Application Centre (VAC). Processing times depend on the embassy assessing the application.
All foreign nationals applying for an intra-company work permit must submit proof that their Canadian employer has submitted an Offer of Employment through the IRCC Employer Portal and paid the $230 employer compliance fee. For further information on submitting an Offer of Employment through the Employer Portal please read our blog on the subject: https://www.capellekane.com/new-cic-employer-portal-for-lmia-exempt-work-permits/
Labour Market Impact Assessments (LMIA) – Similar to the US H1-B category
Canadian companies and start-up companies whose foreign workers are not eligible for one of the LMIA-exempt work permits, must first obtain a Labour Market Impact Assessment (LMIA) from Service Canada before their prospective employee can obtain a work permit. Prior to applying for an LMIA, the employer must first advertise the position for at least 30 days in the 90 days before submitting the application. The advertising must be compliant with Service Canada’s very strict advertising requirements. There are some variations to the advertising requirements, such as for Digital Entertainment Software Engineers (NOC 2173) and Digital Artist (NOC 5241) in Ontario and British Columbia.
In order to apply for an LMIA, the company must be willing to pay the foreign worker the median prevailing wage for the position in their geographic area. Companies can locate the median prevailing wage by looking up the position and geographic location on the Government of Canada’s Job Bank.
Companies must choose between submitting a temporary or a permanent LMIA in support of the foreign worker’s permanent residence. Temporary LMIAs are for a limited duration and the employer must include a transition plan detailing how they intend to transition the position to a Canadian citizen or permanent resident of Canada. Permanent LMIAs or dual intent LMIAs are in support of either a work permit and permanent residence or only permanent residence. All LMIAs with the exception of those that are solely in support of permanent residence carry a government processing fee of $1000.
Processing times for LMIAs can range from 20 days to 12 weeks depending on the Service Canada office processing the application and whether the LMIA qualifies for faster processing based on their high-wage or their being one of a limited number of skilled trade.
Francophone Mobilite Program
Under the Mobilité Francophone program, any habitual French speaker who has secured a bona fide job offer from an employer in Canada (outside of Quebec) can qualify for a work permit for a period of up to five years. In order to be eligible, the applicant must be able to demonstrate that they habitually use the French language in their activities of daily living. This means that to quality, an applicant must prove that they are Francophone or that they use the French language in their personal and/or professional lives. Should IRCC questions whether an applicant is a habitual French speaker, applicants may be required to take a French language proficiency test to prove their proficiency in the language. Generally, if one has grown up and studied in La Francophonie, it will be clear that the habitual use requirement will be met. If an applicant has lived in multiple countries, but has used French in the home, this would equally enable them to qualify.
The objective of the Mobilité Francophone program is to attract French speaking prospective immigrants to communities outside of Quebec in an effort to encourage the development of French in communities across Canada. Holders of Mobilité Francophone work permits may be eligible for additional points under the Federal Express Entry system. The Government has recently announced that future changes to Express Entry are likely to offer additional points for Francophones and those with French language proficiency.
Under the Mobilité Francophone program only those applicants with job offers in managerial, professional or skilled occupations are eligible to participate. Only occupations that fall under the National Occupational Classification (NOC) system Skill Levels O, A or B are eligible. The codification systems can be viewed at this link: http://noc.esdc.gc.ca/English/NOC/OccupationIndex.aspx?ver=16. Low skilled applicants in lower wage positions are generally not eligible to participate. You must verify your NOC occupation code to determine whether the job offer falls within the eligible occupations.
The Canadian Embassy in Paris is the main visa office that manages the Mobilité Francophone Program. Destination Canada is the name of the program that promotes the Mobilité Francophone Program and offers Canadian employers the tools to recruit Francophones in Europe and Africa. Information on Destination Canada can be found at this link: http://www.destination-canada-forum-emploi.ca/accueil.php?lang=en
Foreign nationals must apply in advance for Mobilité Francophone work permits online or by paper at their closest Canadian embassy or Visa Application Centre (VAC). Processing times depend on the embassy assessing the application.
All foreign nationals applying for an intra-company work permit must submit proof that their Canadian employer has complied with the terms of the Mobilité Francophone program and submitted an Offer of Employment through the IRCC Employer Portal and paid the $230 employer compliance fee. For further information on submitting an Offer of Employment through the Employer Portal please read our blog on the subject: https://www.capellekane.com/new-cic-employer-portal-for-lmia-exempt-work-permits/
International Experience Class (IEC)
Canada and France maintain a bilateral agreement to facilitate work exchange programs for young adults. Canada also has bilateral agreements with many other countries that provide for work exchange programs for young adults. These programs are called the International Experience Class (IEC), and they allow young adults who are from a country with a bilateral agreement with Canada to come to Canada to work. Additional information about this program can be found at: http://www.cic.gc.ca/english/work/iec/index.asp.
The IEC program is operated as a lottery, where eligible candidates must first submit a profile online and then wait to see if they are granted an invitation to apply for a work permit. There is one IEC pool per country and candidates may be eligible for multiple IEC streams. Rounds of invitations are issued throughout the IEC season. Once selected, candidates have 10 days to decide to accept the invitation, and then 20 days to apply online for a work permit.
Depending on where the foreign national is from and whether they already have a job offer, there are up to 3 IEC work permit options available under this program. The 3 streams are: 1) Working Holiday; 2) Young Professionals; 3) Internship or Coop.
Work permits under the IEC programs may be granted for up to 2 years. The downside of the IEC program is that work permits issued under this program cannot be extended past their initial expiry date. In order to prolong their stay in Canada, a candidate would then have to qualify for a different type of work permit.
The age criteria to participate in these programs varies depending on country of citizenship. Some countries only permit their citizens to participate up until age 30, while others, such as France permit participation from ages 18-35. Candidates with multiple citizenships can qualify for IEC selection under each participating country, though only one application is necessary to be placed in multiple pools.
Foreign nationals applying for an IEC Young Professional work permit must submit proof that their Canadian employer has submitted an Offer of Employment through the IRCC Employer Portal and paid the $230 employer compliance fee. For further information on submitting an Offer of Employment through the Employer Portal please read our blog on the subject: https://www.capellekane.com/new-cic-employer-portal-for-lmia-exempt-work-permits/
Changes to Canada Temporary Foreign Worker Program
The Government of Canada has just completed a study of Canada’s labour market needs and they are planning changes to our Temporary Foreign Worker and International Mobility Programs. Due to the skill shortage in the high technology sector and the senior business executive class, we expect imminent changes to the programs that enable Canadian companies to recruit highly skilled workers to Canada.
These changes, which are expected to be announced in the next Federal budget, are likely to open up more opportunities for Canadian companies to recruit and retain valuable skills in Canada. We expect that these changes will provide valuable opportunities for expansion in Canada for the US high tech sector.
For further information on any of the aforementioned processes or other immigration options please contact us.