December 10, 2020
The current state of closed Canadian borders and stringent travel restrictions in efforts to contain the COVID-19 pandemic is likely to be the reality for the foreseeable future. Yet Canadian employers in key sectors continue to face labour force shortages. Currently, all foreign nationals are barred from entering Canada for discretionary purposes. Travel to Canada, even for non-discretionary reasons, is particularly challenging for people arriving from any country other than the U.S., unless they meet one of a limited number of exceptions – including persons who will provide an “essential service” (a.k.a. “foreign essential worker”) while in Canada.
The situation is fluid. Here are 10 essential tips to help Canadian employers expedite the entry of foreign essential workers to Canada.
1. Know the (New) Norm
Begin by knowing the basics and how COVID-19 has changed them. As a starting point, many rules apply when a Canadian employer wants to hire and employ one or more Temporary Foreign Workers, non-compliance with which can lead to severe consequences for both employers and foreign workers. The COVID-19 pandemic has, however, changed much in the immigration process. Most significantly, the Canadian government’s Executive Orders (there are two: one for travel from the U.S., and one for travel from any country other than the U.S.), in their most recent forms, effectively bar any foreign national entering Canada from any foreign country, including from the U.S., unless they meet two requirements:
Essential Purpose. They must be entering Canada for a non-discretionary, or “essential”, purpose.
Origin. The foreign national must either:
2. Use the U.S.A.
Look south first: it’s far easier for an essential foreign worker, or any foreign worker for that matter, to enter Canada from the U.S. during COVID-19. The two countries have long shared a vast border and an enmeshed economy. COVID-19 has also closed the Canada-U.S. border for many purposes. However, to facilitate the physical proximity and the flow of trade between Canada and the U.S., Canada has granted a foreign national entering Canada from the U.S. “special treatment” compared to foreign nationals entering Canada from any other country:
Essential purpose v. Essential worker. Foreign nationals entering Canada from the U.S. have an advantage: they don’t have to be an “essential foreign worker” or meet another exception to Canada’s broad travel prohibition. However, they must still be entering Canada for an “essential purpose”. Generally, Immigration, Refugees and Citizenship Canada (IRCC) considers entering for the purpose of attending work in Canada in any occupation an essential purpose. But it’s still helpful for the foreign worker to have a strong work permit application with support letters from their employer emphasizing that the employer is operating despite COVID-19, the employer needs the worker now, and that it’s non-discretionary travel.
POE Work Permit Applications. Despite the current travel restrictions, foreign workers entering Canada from the U.S. are still permitted to make Canadian port of entry (POE) work permit applications: to apply for their work permit at the Canada-U.S. border. So once they pass the travelling for an essential or non-discretionary purpose test, foreign workers coming from the U.S. can make their work permit application.
More than U.S. “citizens”. These special rules apply to more than just U.S. citizens entering Canada from the U.S.: they apply to any foreign nationals residing in the U.S. and entering Canada from the U.S. If a visa-exempt foreign national (someone who doesn’t require a temporary resident visa to travel to Canada) has valid status in the U.S., for example because they have dual U.S. nationality or a U.S. work visa, that foreign national (and their family members, for that matter) can apply for their work permits at a Canadian POE.
Biometrics. Unlike citizens of any other country, U.S. citizens still don’t require biometrics to obtain a work permit to enter Canada.
3. Understand What’s “Essential”
Employers and the Canadian government likely have very different definitions of what services are “essential”; to successfully gain entry for a foreign essential worker, however, the Canadian government’s understanding will prevail – so it’s important to understand it. Foreign nationals seeking entry into Canada from any country other than the U.S. must be both travelling for an “essential purpose”, and meet one of the exceptions to the broad travel prohibition, one of which is persons who will provide an “essential service” in Canada. For this purpose, an “essential service” isn’t the same as, for example, service workers prohibited from striking or those permitted to continue to work during COVID lockdowns. A foreign worker will only fall into the “essential service” exception to the current federal travel prohibition if they can demonstrate they are seeking to enter Canada to both:
Sectors. Public Safety Canada issued Guidance on Essential Services and Functions in Canada setting out in detail, by 10 critical infrastructure sectors, the services and the functions it deems “essential” in the context of the COVID-19 pandemic. They are limited to those it considers essential to preserving life, health and basic societal functioning. The 10 sectors are:
Functions. Even within these critical sectors, not every function is considered to be “essential” for this purpose; only specific functions fit the bill.
Discretion. Ultimately, however, whether a worker is entering Canada for an essential purpose to provide an essential service is at the discretion of the reviewing Immigration Officer.
4. Know the (Temporary) Rules
COVID-19 has resulted in the temporary closure of Canadian borders – but it’s also resulted in some temporary immigration rules to ease entry into Canada for foreign essential workers. Know the temporary rules so you can leverage them. The strict travel restrictions resulting from COVID-19 have exacerbated already-existing worker shortages in many sectors and locations in Canada. Recognizing this, the Canadian government has implemented several temporary immigration rule changes to make it easier for employers to hire temporary foreign workers, and for those workers to enter Canada. Two of those policy changes apply only to foreign essential workers – but not necessarily to all foreign essential workers:
LMIA advertising waiver. A key criteria to obtain a Canadian work permit under the Temporary Foreign Worker Program is a Labour Market Impact Assessment (LMIA), effectively an authorization from the Federal Department Employment and Social Development Canada (ESDC) for an employer to hire a foreign worker. To obtain an LMIA, an employer must meet a number of very specific requirements, including minimum advertising requirements (with some exemptions), and submit an application to ESDC demonstrating it can’t find a Canadian to fill the position. In the context of COVID-19, this has created labour shortages particularly in the Canadian agriculture, food processing and food supply industries, threatening food security. Since March 20, 2020 until (currently) December 31, 2020, Employment and Social Development Canada (ESDC) has prioritized the processing of certain National Occupation Codes (NOCs) and waived the LMIA minimum advertising requirements for some of those priority NOCs. The specific occupations subject to priority processing and the LMIA advertising waiver have changed over time, but currently include essential occupations in the food sector. Although the advertising exemption is currently scheduled to end on December 31, the priority processing of certain NOCs is expected to continue into 2021.
Overseas Biometrics Exemption. Over the last couple of years, IRCC has been rolling out a requirement that all foreign nationals (other than U.S. citizens) give their biometrics before coming to Canada, either at their nearest biometrics collection center or Visa Application Centre (VAC) or, if they are visa-exempt, at the Canadian border. However, many biometrics centers are closed, preventing foreign nationals from giving their biometrics. On June 5, 2020, a new policy temporarily exempts certain foreign essential workers from the requirement to give their biometrics before coming to Canada if the biometrics collection site closest to them is closed:
5. Emphasize the “Essential”
Take every opportunity to emphasize the fact the foreign worker will be providing an essential service in Canada at each step of the immigration process.
LMIA Applications. ESDC now allows employers to submit LMIA applications by electronic mail (email) as well as via regular mail, and there are specific email addresses employers can use. ESDC is also piloting a project with a new on-line portal for LMIAs. Using these electronic filing opportunities is faster than traditional methods of filing, getting the application in faster and hopefully processed faster. And when filing an LMIA via any method, use the subject line in your email and in the cover letter to indicate, in bold black caps, “ESSENTIAL WORKER; REQUEST FOR URGENT PROCESSING” to help ensure the application is expedited.
Work Permit Applications. Once a foreign worker has filed a work permit application, submit a request for urgent processing, along with documentation that supports the request, through the IRCC Webform. For example, provide industry support letters and an employer letter outlining how the foreign worker meets the “essential” test and why they are needed in Canada on an urgent basis.
Medicals. IRCC requires some foreign workers to file completed medicals as part of the work permit application. In some cases, the requirement is based on the country of origin; in others, it’s required based on the specific occupation, such as those in the healthcare sector, regardless of the country of origin. The closure of many doctors’ offices due to COVID-19 has made it extremely difficult for foreign nationals to obtain the required medical, especially since only an IRCC designated medical practitioner can complete it. When attempting to make an appointment, make it clear the medical is for an essential foreign worker; some have found this approach to be successful in obtaining the necessary appointments during COVID lockdowns.
While the requirement for LMIA advertising is temporarily waived for some foreign essential workers, it’s not waived for all. At present, ESDC is requiring that recruitment for pending LMIAs be done under the current labour market conditions. Therefore, ESDC will contact any employer that posted advertisements prior to March 15, 2020 (essentially, Covid-lockdown-Day-1) and require that they repost these advertisements. This is less of an issue for positions ESDC is prioritizing, like those in healthcare occupations, because ESDC is processing these applications quickly; but other occupations take longer to process and LMIA applications may still be in the queue. If so, re-post your advertisements now so you will meet the recruitment requirements when ESDC finally reviews your LMIA application.
7. Follow Up
Monitor the status of your LMIA application and be ready to follow up to keep things moving quickly.
ESDC. Normally, LMIA applications for a position or occupation in the top 10% of wage earners are entitled to a 10-day processing standard. However, it appears that ESDC has a low threshold to remove applications from that processing standard. Therefore, monitor the status and if ESDC hasn’t responded in one, two or three weeks maximum, it’s time for either you to follow up, or for your legal counsel to do so, particularly if they have a good relationship with the relevant ESDC office, allowing them to help navigate situations in which applications are, or appear to be, delayed.
MP. A call to your local Member of Parliament to explain your situation and seek support can also be helpful to address delays, or to expedite applications.
8. Complete Police Clearances
Get any necessary police clearances early. IRCC requires foreign nationals – even foreign essential workers – from some countries, mainly those for which Canada requires a visa, to file a police clearance as part of their work permit application. These police clearances require the applicant appear in person to give their individual finger prints. However, applicants have encountered difficulty appearing due to closures and restrictions resulting from COVID-19, hindering the approval of their application. Applicants are therefore well-advised to obtain police clearances up front as soon as they are able to, while facilities are open or accessible, so they won’t become an issue later.
9. Have a (Quarantine) Plan
Help your foreign essential worker with their quarantine plan. Once a foreign national has entered Canada from any country, including from the U.S., and applied for a work permit and landed in their destination province, they must still satisfy governmental quarantine requirements. The federal government requires anyone travelling to Canada to self-isolate for 14 days. When a foreign national arrives at the Canadian border seeking entry as a worker, the CBSA will want to see a quarantine plan, including:
There are, however, certain exemptions from the federal government’s 14 day self-quarantine requirement. In addition, the Atlantic Canadian provinces have their own quarantine or self-isolation requirements and exemptions, and each is a little different. For example, to enter Newfoundland and Labrador, a foreign national effectively requires permission and a provincial health and safety officer must approve their self-quarantine plan. Essential workers may be exempt from quarantine requirements, but any family members with whom they are travelling will still need an approved self-quarantine plan.
10. Family Matters
The ability for a foreign essential worker’s family to join them in Canada could make or break your ability to get a foreign essential worker, so be ready to give your foreign essential worker’s family a hand – even though this could prove difficult:
Work permit. Foreign nationals from any country with a work permit approval letter already in hand are exempted from the current Canadian travel prohibition. One option, therefore, is for the foreign essential worker’s spouse to also apply for a work permit, ideally at the same time as does the essential worker. Once the spouse has their work permit approval, they can also enter Canada. However, there are a couple of obstacles to getting that approval:
Family reunification. Not all spouses of foreign essential workers, however, are seeking to enter Canada as a worker; they may just be seeking to be in Canada as a visitor and so don’t have the work permit approval letter necessary to travel to Canada. One option is to obtain IRCC’s written authorization that the spouse is travelling to Canada to reunite with a family member who does have status in Canada. However, the family member must be relocating to Canada long-term; they can’t be entering merely to visit short-term.
Please contact your McInnes Cooper lawyer or any member of the Business 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.
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