January 12, 2018

Benefits and Drawbacks of the New Global Skills Strategy

Benefits and Drawbacks of the New Global Skills Strategy

In June 2017, the Federal Government introduced the Global Skills Strategy as part of Canada’s Innovation Agenda. Attracting top global talent and skills is considered an integral part of Canada’s long-term plan to promote economic growth and create more middle-class jobs for Canadians. As such, this strategy aims to provide Canadian businesses quick and predictable access to the top talent necessary for their ventures to grow and thrive in today’s marketplace.

Why Consider the Global Skills Strategy?

The Global Skills Strategy is designed to provide four significant benefits to employers:

• New Immigration Pathways Through the Global Talent Stream

The Global Talent Stream (GTS) is a new, 2-year pilot immigration class under the federal Temporary Foreign Worker Program as an alternative track under the Labour Market Impact Assessment (LMIA) stream. Unlike the processes required for obtaining an LMIA, employers hiring under a GTS category do not need to conduct/adhere to Economic and Social Development Canada’s (ESDC) formal recruitment/advertising requirements. This has the potential of speeding up the process for hiring top talent.

The GTS creates two additional Categories under which employers can hire highly-skilled foreign workers for up to two years:

Category A: For unique and/or specialized talent

Category A is for employers who have partnered with pre-identified designated referral partners, and who require unique and/or specialized talent. Unique and/or specialized talent is defined as advanced knowledge of, or 5+ years of experience in, the employer’s industry; and/or advanced specialization in an area of interest to the employer. This may include both technical skills, as well as specialized leadership and business development expertise specific to a sector. This knowledge/talent must not easily be replicated, taught, and/or acquired.

Companies should only use this exemption for a limited number of employees who are instrumental to the company’s success. For example, a new tech start-up may seek to bring in an experienced foreign worker to act as CEO.

The lawyers of Capelle Kane can recommend pre-identified designated referral partners for employers seeking to be partnered.

Category B: For filling in-demand occupation shortages

Category B is for employers who have need of high-skilled workers in specific occupations for which there is a domestic labour shortage. ESDC has developed a ‘Global Talent Occupations List’ which identifies in-demand occupations that fall under this category:

Global Talent Occupations List as of January 1, 2018*

*Note that this list may be updated on EDSC’s website from time to time

NOC	Occupation	Minimum Wage	Maximum Wage
0213	Computer and Information Systems Manager	Prevailing Wage
2147	Computer Engineers (Except software engineers and designers)	Prevailing Wage
2171	Information Systems Analysts and Consultants	Prevailing Wage
2172	Database Analysts and Data Administrators	Prevailing Wage
2173	Software Engineers and Designers	Prevailing Wage
2174	Computer Programmers and Interactive Media Developers	Prevailing Wage
2175	Web Designers and Developers	Prevailing Wage
2241	Electrical and Electronics Engineering Technologists and Technicians	Prevailing Wage or $81,000, whichever is higher (QC must meet MIDI wage floor)	Prevailing Wage or $38.94, whichever is higher (QC must meet MIDI wage floor)
2283	Information Systems Testing Technicians	Prevailing Wage or $78,000, whichever is higher (QC must meet MIDI wage floor)	Prevailing Wage or $37.50, whichever is higher (QC must meet MIDI wage floor)
Subset of 5131	Producers; Technical, Creative, and Artistic Directors; and Project Managers for Visual Effects and Video Games *Minimum five-year’s experience in the visual effects/video game/animation industries; and experience with at least one of the pre-identified skills required	Prevailing Wage or $75,000, whichever is higher (QC must meet MIDI wage floor)	Prevailing Wage or $36.06, whichever is higher (QC must meet MIDI wage floor)
Subset of 5241	Digital Media Designer *Minimum five-year’s experience in at least one of the pre-identified digital media designs required.	Prevailing Wage or $80,000, whichever is higher (QC must meet MIDI wage floor)	Prevailing Wage or $36.46, whichever is higher (QC must meet MIDI wage floor)

In order to qualify under either GTS Category, employers must develop and submit a Labour Market Benefits Plan (‘LMBP’).

Employers hoping to utilize the GTS must develop and submit a 2-year Labour Market Benefit Plan (LMBP). This LMBP must demonstrate the company’s commitment to activities that will have a lasting, positive impact on the Canadian labour market, and benefit Canadians and/or permanent residents. It does so by permitting the Federal Government to track an employer’s overall job creation, as well as their skills and training investments.

Each Category has one mandatory commitment for employers:

• Category A → Directly/indirectly create jobs for Canadian citizens/permanent residents.

• Category B → Increase skills and/or training investments for Canadian citizens/permanent residents.

In addition, employers must also provide 2 additional complimentary benefits, each of which must be accompanied by at least one measurable activity. These benefits may include, but are not limited to:

• Establishing educational partnerships with local and/or regional institutions;
• Implementing industry best practices or policies (e.g. developing policies which support the hiring of underrepresented groups, like hackathons geared toward female participation);
• Providing:
  • Direct specialized training to Canadians and/or permanent residents (e.g. increasing funding to attend relevant conferences);
  • Paid co-op/internship opportunities for Canadians and/or permanent residents;
  • Mentorship in support of knowledge transfer;
• Enhancing company performance by:
  • Increasing growth of revenue, employment, or investments;
  • Developing/improving best practices, especially as they relate to attracting/retaining Canadian workers.

LMBP Compliance Requirement Are Extremely Arduous

LMBPs are subject to mandatory commitment reviews every 6 months over the 24-month life of the work permit issued to the foreign worker, as well as every time a new foreign employee is hired under the Global Talent Stream. During these mandatory reviews, the company must provide the supporting documents promised in their LMBP, as well as demonstrate how they are meeting the commitments and benefits outlined in their LMBP.

In addition to mandatory commitment reviews, the company can also be subject to random compliance inspections. One in four employers will be subject to a random compliance inspection, which are designed to ensure compliance with the terms of the foreign workers employment. In particular, officers will look to see that employers are complying with promised wages, working conditions and employment in the specified occupations.

All employers under the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP) can be subject to random compliance inspections. Failure to show compliance with the program under which the work permit was issued can result in substantial monetary penalties or bans from the TFWP or IMP programs.

However, employers are only required to develop one LMBP for their company.

A LMBP applies to the whole company. This is different from employee-specific LMIAs, and may potentially benefit employers who hope to bring several high-skilled foreign workers in at a time, all under the GTS. However, ESDC may, with the addition of any new foreign worker, request that employers amend or expand their LMBP commitments to ensure that Canadian workers continue to benefit from these foreign worker’s presence. Non-compliance with a request to amend can result in a negative assessment and inability to access the program in future.

• Work Permit Exemptions for Short-Term, High-Skilled Work or Research

Subject to a few exceptions, individuals who seek to work in Canada require a work permit. At the time of writing, employer-specific work permit fees cost carries a $155 CAD government-processing fee, and open work permits carry an additional fee of $100 CAD. The Global Skills Strategy has, however, introduced work permit exemptions for two specific groups:

High-Skilled (NOC 0 or A) Workers

In order to qualify, applicants must have a job offer for a NOC 0 (Management) or A (Professional) position, and intend to only work in Canada for up to a maximum of 30 days in a calendar year:

• Applicants who seek to work for 15 consecutive calendar days or less may apply for this exemption once every 6 months*.
• Applicants who seek to work for up to 30 calendar days may apply for this exemption once every 12 months*.

This exemption was introduced in recognition of the positive impact that short-term high-level expertise has on the creation and/or extension of Canadian middle-class jobs. For example, business management consultants may use this exemption to come to Canada in order advise companies on how to improve their operations. In turn, their presence may make the Canadian business more profitable and/or allow it to grow and hire more Canadian workers.

Foreign workers seeking entry under this exemption must request that their entry be documented on a Visitor Record. Foreign workers who are being paid by the Canadian company on the Canadian payroll require a Visitor Record listing them as Business Visitors in order to obtain a temporary Social Insurance Number (SIN), required for Canadian payrolls.

International Researchers

In order to qualify, applicants must be conducting research activities for a publicly-funded, degree-granting institution or affiliated research institution; AND have a letter of support from this institution which outlines the subject, scope, and details of their work, including the period of employment. When determining the merits of the application, CBSA Officers may also assess the applicant’s role and/or value added to the project; their demonstrated academic excellence and/or expertise in the field; and whether their background realistically corresponds to their role in the project. This work permit exemption applies for up to 120 consecutive days once every 12 months*.

• Two-Week Application Processing for High-Skilled Workers

To facilitate speedier arrivals, IRCC has committed to processing 80% of work permits and temporary resident visas/electronic Travel Authorizations (eTA) within 10 business days (two-weeks) of receipt. Spouses and/or dependants who apply at the same time as the primary applicant for work/study permits and visas/eTAs will also benefit from the same priority processing. This is a significant advantage to employers, as it provides them access to high-skilled workers within weeks, not months.

In order to qualify for priority processing, primary applicants must be high-skilled (NOC 0 or A)

AND:

1. Hold an employer-specific, LMIA-exempt work permit under the International Mobility Program. Prior to submitting the application, the employer must submit an Offer of Employment (IMM5802) through the Employer Portal and pay the corresponding fee ($230), and the foreign worker must provide proof of this with their work permit application; OR
2. Apply for an employer-specific, LMIA-based work permit under the Global Talent Stream. Prior to submitting the application, the employer must receive a positive LMIA, and the applicant must self-identify as part of the Global Talent Stream in the Come to Canada tool.

In order to qualify, applications must be complete and submitted online. These applications must also be submitted “from outside Canada,” which means that though they can be physically submitted online from within Canada, the applicant and their accompanying family members, if applicable, will have to leave and re-enter Canada in order to have the work permit issued once they are approved. Furthermore, in addition to the mandatory requirements, all applications should also include (if required) police record checks, upfront medical examinations and the biometric fee, if applicable ($85/person, $170/family). Finally, applicants must not be or suspected of being inadmissible to Canada. If any of these requirements are not met, the two-week processing promise no longer applies. There is also no guarantee that a qualified applicant will be put in the 2-week processing queue.

• Dedicated Service Channel

Finally, IRCC has provided employers access to a specialized IRCC account manager, who can help identify specific needs and guide employers and applicants through the immigration process by offering advice and answering questions. This service is only available for employers who make significant investments in Canada (through job creation or otherwise), and universities who are hosting publicly-funded research chairs. In order to qualify, the employer/university must be referred by a participating Designated Service Channel Partner (a list different than the Designated Referral Partners under the Global Talent Stream).

So, What Are The Drawbacks to the Global Skills Strategy?

While the potential benefits offered by the Global Skills Strategy are numerous, there are significant drawbacks that employers should be aware of. Some of the drawbacks are attributable to the fact that the program is new and that the government is attempting to address Canada’s skills shortage while not opening the door to a large volume of non-meritorious applications.

Work Permit Exemptions: Permission to work in Canada without a work permit

There are not many drawbacks to this exemption, other than that the fact that some Canadian Border Service Agency (CBSA) agents are not always aware of it. If you are seeking to apply under this exemption, make sure to identify your NOC occupation code and eligibility specifically under this program. Be sure to ask that the CBSA Officer issue a Visitor Record and write ‘WORKING FOR [XX] DAYS UNDER GLOBAL SKILLS STRATEGY WORK PERMIT EXEMPTION’ in the Visitor Record remarks section. Having this record of your entries demonstrates your compliance with Canada’s immigration laws.

Please note that not all CBSA agents are prepared to issue Visitor Records for this exemption. However, if the foreign worker is working on a Canadian company’s payroll in Canada, it is important that they specifically request a Visitor Record noting them as a Business Visitor so that they can obtain a Social Insurance Number.

The Global Talent Stream

While the GTS creates more flexible options for employers to quickly bring high-skilled workers to Canada, the enhanced reporting requirements in connection with the implementation of and adherence to the LMBP will likely overshadow any benefits offered by the expedited processing times. Employer compliance with their LMBP commitments is somewhat discretionary and subject to the officer’s assessment. Meeting an officer’s requirements can quickly become extremely arduous and expensive if there are outstanding concerns or requests for additional supporting documentation. Given that these plans are new, there is little information about what the mandatory commitment reviews will entail or the what consequences of not adhering to a LMPB will be.

Priority 2-Week Work Permit Processing

Two-week processing is highly beneficial for employers, as it allows them to quickly bring top talent to Canada. In practice, however, these deadlines are far from guaranteed:

• Because the requirements for medical examinations and police checks are not waived, applicants must still begin planning their arrival to Canada several months in advance to ensure that have the appropriate documents for their application. Given that these documents expire, it is unrealistic to assume that applicants will have them lying around waiting for the chance to move to Canada.
• Further, these applications are currently being processed at a Case Processing Centre with less first-instance application experience. Previously, these offices were primarily involved with assessing work permit extension applications, which is radically different from the factors considered in an initial eligibility assessment. This has resulted in some initial work permit applications being refused despite having met the requirements of the IMP exemption being requested.

Quick Tips and Tricks

• On any application, the Principal Employer contact must be knowledgeable about the day-to-day operations of the business, recruitment processes, LMBPs and be available to speak to ESDC throughout the application process. This can be a CEO, senior human resources manager or a department head. This is especially true for priority processing, as unknowledgeable and/or unresponsive contacts can have a negative impact on the 2-week processing time commitment.
• All GTS applications use the NOC 2011 lists.
• Milestones –both mandatory and complimentary – must occur within the 2-year mark of acceptance. Employers can indicate what percentage they believe will be finished within this 2-year mark.
• When activities listed under the Labour Market Benefit Plan will take more than 2 years to complete/achieve, employers should nevertheless construct markers to demonstrate some results achieved during that time, as well as provide an expected timeline for completion.

The Global Skills Strategy is not the golden goose that was promised, but does offer some interesting and potentially beneficial options for employers to access high-skilled foreign talent on a faster basis. Capelle Kane Immigration Lawyers are experienced with, and attentively follow all changes and updates to the Global Skills Strategy, and will be happy to discuss all of your options with you.