Piling Canada

The Ins and Outs of Hiring Foreign Workers in a New Era of Immigration Law and Policy

Avoiding Pitfalls and new challenges of overcoming labour shortages
July 2017

Avoiding Pitfalls and new challenges of overcoming labour shortages

As an immigration laywer. I can’t tell you how many times I’ve heard new clients say. “I wish I had known that before.” Or, “If I had just consulted you before I files the application. this mess could have been avoided.

Some examples of complications that may occur when a step is missed in the work authorization process include lengthy delays in the hiring process, officers rejecting appli-cations and interruptions in the work term of a valuable foreign national employee.

Many of these situations may be avoided if the issues required to be addressed had been considered first and the proper steps had been taken in the process at the right time. Correcting mistakes after they happen and retaining a lawyer at that time to assist is often significantly more costly than retaining one before the process starts and getting it right the first time.

Here are some questions to ask that may help you to avoid some of the more common pitfalls:

Does the position and candidate fit within a legal exemption that could simplify and speed up the process of hiring the foreign worker?

Generally, before an employer may hire a foreign national, the employer must first prove they tried to hire a Canadian citi-zen or Canadian Permanent Resident (landed immigrant). However, in certain cases, this step may not be necessary.

The general “proof ” must be demonstrated in accordance with very specific advertising, prevailing wage, rationale of the labour shortage issue and other requirements and varies depending on the position in question. For instance, the requirements for hiring a foreign national for work that is compensated above a government set provincial wage are adjudicated differently than what is required for lower paying work. Skill level analysis has also changed in recent amend-ments to processing that were made on June 20, 2014 and April 30, 2015. The nature of the position may also affect what supporting documentation may be required for certain appli-cation processes.

Some work permit categories are exempt from the afore-mentioned “proof ” step. Knowing that an exemption exists can save the employer time and money as certain steps in the general process may be avoided completely.

Does the candidate have a criminal record?

If the foreign national candidate has a criminal record, it may have an impact on his or her ability to obtain Canadian work authorization. The type of criminal charge(s), what convic-tion was entered, when the conviction was entered, what the sentence was and when the sentence was completed are all relevant factors in the analysis of assessing whether a crimi-nal inadmissibility exists and whether it may be overcome.

In some cases, and depending on the seriousness of the crime(s), the inadmissibility may be overcome in a timely fashion; in others, an officer may choose not to permit entry to Canada for security risk reasons or other reasons.

When it comes to criminal records, you don’t want any surprises. Being aware of a candidate’s criminal record is important because in certain cases, steps can be taken to resolve the criminal inadmissibility, at least temporarily, for the duration of the work authorization.

Does your proposed candidate require a medical exam?

Depending on the duration of the work term, citizens of some countries may have to undergo an immigration medical exam as part of the work authorization process. Only desig-nated medical practitioners authorized by Citizenship and Immigration Canada may perform such immigration medi-cal exams. If your candidate requires a medical exam, this may increase work authorization processing times by a few weeks while the medical results are processed.

Where is the candidate eligible to apply for their proposed work authorization?

Citizens of some countries, such as the United States, do not require a visa before they apply to enter Canada. When it comes to applying for work authorizations, this can speed up the total processing time significantly as certain work autho-rizations may then be adjudicated at specific ports of entry to Canada instead of applying outside of Canada first, which can add several additional weeks of processing time. Citizens of some other countries must have their work permit appli-cations adjudicated outside of Canada first. If the candidate is a resident in a country that is not their country of citizen-ship, other filing location options may also be available.

Of course, all supporting documents required must be in order and the candidate must still meet all requirements under the Immigration and Refugee Protection Act of Canada and amendments thereto.

You also need to be aware in advance that some work permits may be renewed and others may not.

Have you considered the long-term picture for your proposed foreign worker?

Let’s assume your foreign worker has successfully obtained Canadian work authorization and settles in nicely, only to learn a few months into the job another work permit is required. Knowing in advance what steps are required and how long they take is critical to avoiding costly and unex-pected interruptions in employment. You also need to be aware in advance that some work permits may be renewed and others may not. This knowledge will help you plan for the long term, giving you time to consider what options are available to you and your employee.

Knowing the factors to consider before hiring a foreign worker helps to avoid costly errors in the process and will help move the process forward in the most cost-effective and efficient way possible. Doing your homework ahead of time, and asking the right questions so you can determine what options are available, will make the process easier on both you and your employee.

Sofia Mirza practises cross border and immigration law at Fillmore Riley LLP. You can reach her at 204-957-8335 or smirza@fillmoreriley.com. 🍁

Category: Business

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