Publication
Temporary Immigration Policy Changes Make Hiring Temporary Foreign Workers Easier
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May 14, 2020
By Sarah McInnes, Partner at McInnes Cooper,
David Nurse, Counsel at McInnes Cooper
This publication has been updated as of December 10, 2020.
Employers that hire and employ temporary foreign workers must comply with many and changing immigration rules and laws, or face severe enforcement mechanisms. In 2020 the Canadian government has introduced three new temporary immigration policies, changing immigration rules to address the heightened labour market challenges in Canada in light of the COVID-19 Pandemic. The new temporary policies make it easier for both prospective employers to hire foreign workers in Canada, and for foreign workers already in Canada to work, by allowing:
- Some visitors who are already in Canada to apply for and receive a work permit without first exiting Canada.
- Essential workers to be exempted from the requirement to give their biometrics before coming to Canada.
- Temporary foreign workers who are already in Canada to more quickly change to new jobs or employers while their work permit application is being processed.
- Employers to more quickly hire temporary foreign workers to fill labour shortages in the agriculture, food processing and food supply industries by waiving the Labour Market Impact Assessment (LMIA) minimum advertising requirements.
Here are four new temporary policies that Immigration, Refugees and Citizenship Canada (IRCC), the Canadian government department that administers Canadian immigration policy, has implemented and how they benefit both foreign workers and prospective employers.
1. Exemption to Work Permit Requirement that Visitors Exit Canada to Apply
Effective August 24, 2020, a foreign national with visitor status can apply for and obtain an employer-specific work permit from within Canada. Before, a visitor had to exit and re-enter Canada to obtain a work permit. This policy responds to COVID-19’s travel restrictions by allowing certain foreign visitors to apply for and obtain a work permit from within Canada, benefitting temporary residents forced to stay in Canada and foreign workers forced to change their status to visitor because their work permit was expiring, but without a job offer allowing them to apply for a new one. To be eligible under this policy, the foreign national must meet all of these criteria:
- Have valid status in Canada as a visitor on the day they apply.
- Have been in Canada on August 24, 2020 and remained in Canada.
- Have a job offer.
- Submit an application for an employer-specific work permit that’s supported by a Labour Market Impact Assessment (LMIA) or an LMIA-exempt offer of employment on or before March 31, 2021.
- Meet all other standard admissibility criteria.
This temporary policy also allows applicants who meet these criteria and had a valid work permit in the past 12 months the opportunity to start working for their new employer even before their work permit application is fully approved by following the specific process.
2. Exemption to Overseas Biometrics Requirement for Essential Workers
On June 5, 2020, a new policy temporarily exempts essential workers from the requirement to give their biometrics before coming to Canada if the biometrics collection site closest to them is closed. This policy applies to the following workers:
- Workers in the agricultural and agri-food sectors.
- Workers in the health-care sector.
- Truck drivers.
Port of Entry in Canada. Foreign workers may be asked to give their biometrics at a Canadian port of entry (POE). Some exempt workers, such as seasonal agricultural workers, will now be giving their biometrics on arrival at a POE.
Extension. If a foreign worker’s application is in progress and they still haven’t given their biometrics but this policy doesn’t apply to them, the visa application centres (VACs) or other biometrics collection sites in the foreign worker’s country or region are still closed, and their extension to give biometrics is ending, they won’t have to give their biometrics until the biometrics collection sites reopen, even if their biometric instruction letter (BIL) says that their deadline is 30 or 90 days.
3. Exemptions to Work Permit Conditions When Changing Employment
On May 12, 2020, a new temporary policy allows eligible temporary workers who are already in Canada to more quickly change to new jobs or employers while their work permit application is being processed. This policy should significantly reduce the time to process applications for changes: so far, IRCC has achieved the short processing period of 10 days or less, far faster than the prior three month processing time, it envisaged when it introduced this policy. To be eligible under this policy, the temporary worker must meet all of these three criteria:
- Be in Canada with valid status: be a worker in Canada with an employer-specific work permit, those in Canada under a work permit exemption and those on implied status.
- Have a valid job offer.
- Have applied for a work permit in respect of the new job.
4. Labour Market Impact Assessment (LMIA) Advertising Waiver
There’s no doubt the COVID-19 Pandemic presents a new challenge to food security. In response, the Canadian government has made temporary changes to the Temporary Foreign Worker Program (TFWP) to allow employers to more quickly hire foreign workers to fill labour shortages in the agriculture, food processing and food supply industries. Starting March 20, 2020 and (currently) until December 31, 2020, Employment and Social Development Canada (ESDC) has prioritized the processing of 23 National Occupation Codes (NOC) and waived the LMIA minimum advertising requirements for nine of those NOCs. The specific occupations subject to priority processing and the LMIA waiver have changed over time, but currently include essential occupations in the agriculture, food processing and seafood processing sectors. This will allow Canadian employers to fill their labour needs more efficiently and with less administrative burden. Here’s what employers need to know about the waiver:
Specific occupations in agriculture, food processing and seafood processing. This waiver applies only to the following nine occupations:
- Butchers, meat cutters and fishmongers-retail and wholesale.
- Agricultural service contractors, farm supervisors and specialized livestock workers.
- General farm workers.
- Nursery and greenhouse workers.
- Harvesting labourers.
- Fish and seafood plant workers.
- Labourers in food, beverage and associated products processing.
- Labourers in fish and seafood processing.
- Industrial butchers and meat cutters, poultry preparers and related workers.
No advertisement requirement. Prior to this waiver, employers were required to advertise on the national Job Bank and at least two additional methods of recruitment for a minimum of four weeks before applying for an LMIA. This policy eliminates this advertising requirement completely. As of January 1, 2021, however, these NOCs will continue to be prioritized for processing but will be subject to the regular minimizing advertising requirements.
Please contact your McInnes Cooper lawyer or any member of our Immigration Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2020. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.
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