There is an ever-expanding set of over 500 entry options for foreign nationals under Canadian law. In order to conduct business-related activities in Canada, foreign nationals must apply for either a Canadian work permit or business visitor status and ensure that they carry the correct documentation to support their entry and conduct their work in Canada to prevent compliance issues.

Canadian business immigration policy is driven by the goals of:

• developing a strong and prosperous Canadian economy;
• facilitating the entry of foreign nationals for purposes such as trade, commerce, tourism, international understanding, and cultural, educational and scientific activities; and
• maintaining the integrity of the Canadian immigration system through the establishment of fair and efficient procedures.

This has inevitably led to the Canadian government having to balance the economic and cultural benefits of facilitating business immigration with the need to prevent fraud and the abuse of foreign workers through a rigorous compliance regime.

Canada’s labour market is unique internationally in that the country has a relatively small labour pool but is a global leader in many fields (including technology, life sciences and natural resources) and maintains a reputation as one of the most desirable countries in which to live. The small labour pool has led to significant labour shortages in Canada’s most economically important industries. To target these labour shortages, the Canadian government is shifting towards an occupation-specific approach to accepting both temporary and permanent residents, in an effort to attract highly skilled foreign talent. The occupations being targeted are also regularly adjusted and vary by region to address the differing labour market needs in different provinces at various times.

The majority of pathways to obtaining a work permit in Canada require employer sponsorship, either through a labour market test known in Canada as a Labour Market Impact Assessment (LMIA) or through various LMIA-exempt work permit categories. Some of the most common types of employment-based work permit categories are summarised below.

LMIA-Exempt Categories

Canada has negotiated a number of international trade agreements with other countries that include provisions to ease the temporary entry of citizens of signatory countries for the purposes of investment and trade of goods or services. These provisions have been codified in Canadian immigration policy and are intended not to replace but to add to Canada’s existing general work permit categories, so that citizens of signatory countries are eligible to obtain work permits under the provisions of an international trade agreement as well as general provisions available to all foreign nationals.

The countries with which Canada has entered into international trade agreements facilitating business immigration include: the United States, Mexico, Colombia, Chile, South Korea, Panama, Peru, member states of the European Union, the United Kingdom, Australia, Japan and Vietnam.

Professionals under Canada’s international trade agreements

All of Canada’s international trade agreements that affect business immigration include provisions allowing business travellers to enter Canada to provide pre-arranged services in certain professional occupations. 

The most well established of these agreements is the Canada-United States-Mexico Agreement (CUSMA), which replaced the North American Free Trade Agreement (NAFTA) in 2020. CUSMA allows US and Mexican citizens working in 63 specific occupations to enter Canada to provide professional-level services in that occupation. It also lists the minimum educational credentials required for a foreign national to work in Canada in any listed profession, which generally consists of a baccalaureate or licenciatura degree in a field closely related to the profession, but may also include an applicable state/provincial licence, or five years of experience in a related field, exclusively for a management consultant occupation. Self-employed professionals may also apply under this category provided that the services to be rendered in Canada are pre-arranged with a Canadian employer.

An occupation must be explicitly listed in CUSMA for a professional working in that occupation to be eligible for a work permit, and the list includes a wide range of occupations including engineers, accountants, graphic designers, medical professionals, scientists and professors.

Most of the other international trade agreements that Canada has negotiated have been modelled on the NAFTA and CUSMA and include similar provisions allowing for professionals to apply for work permits to provide pre-arranged services in Canada. Some agreements, such as those with Chile and Panama, have set out their own lists of occupations and minimum educational requirements for those occupations that differ from those in the NAFTA and CUSMA. The agreements with Peru, Colombia, and certain signatories of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), rather than setting out a positive list of occupations that may be eligible for professional work permits, employ a negative list of occupations that are not eligible for professional work permits, with all other highly skilled or managerial occupations being eligible.

Under the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) as well as agreements with the United Kingdom and South Korea, professionals are divided into contractual service suppliers (employees of overseas enterprises fulfilling a contract to supply services to a Canadian consumer) and independent professionals (self-employed professionals fulfilling a contract to supply services to a Canadian consumer), with unique lists of occupations that qualify for work permits under these subcategories.

Traders and investors

Many of Canada’s international trade agreements include provisions allowing traders and investors to obtain work permits, most of which have been modelled on the NAFTA/CUSMA trader and investor categories, described below.

Traders are foreign nationals that carry on substantial trade in goods and services between Canada and the signatory country of which they are a citizen. To qualify for a work permit as a trader, the foreign national must be employed:

• by a foreign enterprise majority-owned by citizens of the signatory country;
• by an employer that conducts the majority of its total volume of international trade with Canada; and
• in a capacity that is supervisory, executive or involves essential skills.

Investors are foreign citizens or corporations of signatory countries that have committed, or are in the process of committing, a substantial amount of capital in Canada. To qualify for a work permit as an investor, the foreign national must be entering Canada solely to develop and direct the operations of an enterprise in Canada in which the foreign national or the employer has invested – or is actively in the process of investing – an amount of capital significantly proportional to the total cost of establishing the target business in Canada. The foreign national must also be employed in a capacity that is supervisory, executive, or involves essential skills.

Similar provisions for traders and investors are included in the CETA and CPTPP as well as in Canada’s international trade agreements with Colombia, Chile, South Korea, Peru and the United Kingdom.

Intra-company transfers (ICTs)

The intra-company category enables international companies to transfer employees to a related enterprise in Canada so that they can provide significant economic benefit to Canada through the transfer of their expertise to Canadian businesses. To qualify, all intra-company transferees must:

• be currently employed by a multinational company;
• be seeking entry to Canada to work in an enterprise that is a parent, subsidiary, affiliate, or branch of their foreign employer;
• be transferring to a position in an executive, senior managerial, or specialised knowledge capacity; and
• have spent the preceding three years in a similar position in the company that plans to transfer them to Canada full time for at least one year.

Specialised knowledge

To be eligible for a work permit under the Specialised Knowledge ICT subcategory, an employee must demonstrate “knowledge at an advanced level of expertise” and “proprietary knowledge of the company’s product, service, research, equipment, techniques or management”. An advanced level of expertise is defined as knowledge gained through significant and recent experience with the organisation and which is used by the employee to contribute significantly to the employer’s productivity. The knowledge should be critical to the Canadian business and a significant disruption of business should be expected to occur without the applicant’s expertise. Proprietary knowledge is defined as company-specific expertise related to a company’s product or services which is not divulged as this would allow other companies to duplicate the product or service. The proprietary knowledge should be unusual, not widespread across the organisation, and not likely to be available in the Canadian labour market.

Executives and senior managers

To be eligible for a work permit under the Executive/Senior Manager ICT subcategory, an employee must be required to plan, organise, direct, or control the activities of a business, or a division of a business, either independently or through middle managers. They should be responsible for formulating and implementing the policies of a business. Executives must primarily direct management, exercise a wide latitude in discretionary decision-making, and receive only general supervision from higher level executives, directors or shareholders. Senior managers must function at a senior level within the organisation hierarchy, supervise and control the work of other managers or professionals, and have the authority to hire and fire supervised employees.

Functional managers

If staff are not necessarily managed directly, an employee may be eligible for a work permit under the Functional Manager ICT subcategory if they manage an essential function in the company, operate at a senior level within the organisation or within the function managed, and have discretion over the day-to-day operations of the function. They may be required to provide guidance to other managers, be responsible for assets or sales with a large dollar value, and direct the work of subcontracted firms. A functional manager must not, however, primarily perform tasks required for the production of a product or in the delivery of a service.

Employer-sponsored International Experience Canada (IEC) programmes

International Experience Canada (IEC) allows foreign nationals of certain countries aged 18–35 (in most cases) to obtain employer-sponsored work permits if Canadians would have similar reciprocal opportunities abroad. The purpose of the IEC programme is to enhance bilateral relationships between Canada and other countries and to emphasise the importance of improved reciprocity by facilitating work permit applications from participants who fit Canada’s immigration priorities.

Under the IEC Young Professionals programme, participants with an employer sponsor can apply for a work permit to help them gain professional work experience in Canada. For students in the process of completing their education, the IEC International Co-op programme enables participants with an employer sponsor to apply for a work permit to help them gain work experience in their field of study.

The eligibility requirements for these IEC programmes are specific to each country or territory that holds a bilateral agreement or arrangement with Canada. Participants may also be eligible to participate in IEC more than once if applying under different programmes.

Francophone mobility

The Francophone Mobility category was created to promote Francophone immigration to Francophone minority communities, which would lead to significant social, cultural or economic benefits or opportunities for Canadians. Facilitating the entry of Francophone workers to Canada should encourage the development of both official languages in communities in Canada, while promoting the use of French outside Quebec strengthens and supports the social and cultural fabric of Canadian society, respecting the federal, bilingual and multicultural character of Canada.

Under the Francophone Mobility category, foreign nationals with an employer sponsor can apply for a work permit if they will be working outside Quebec, in a managerial or skilled occupation, as long as their habitual language of daily use is French. Their language of work does not need to be French. Results of a French language benchmark test may be required when applying under this category.

Significant benefit

The Significant Benefit category facilitates the issuance of work permits in situations where the employment activities of certain foreign nationals would create or maintain significant social, cultural or economic benefits or opportunities for Canadians, and where no other more specific LMIA-exempt work permit category is available. The work of the foreign national under this category would be expected to provide general economic support, such as job creation or expansion of markets for Canadian products and services, development or innovation in a Canadian industry, the improved health and well-being of Canadians, or increased opportunities for cultural exchange. 

Under this category, economic benefits are defined as benefits that would contribute to the company’s growth, expansion or continuation, that have fiscal benefits and that provide a competitive advantage to Canada’s business community. Social benefits can include improving the health and safety of Canadians, boosting local investments that support tourism, improvements to the environment, and strengthening of social inclusion in communities. Cultural benefits are considered improvements to learning and health, increased tolerance, opportunities to come together among diverse groups, and other enhancements to the quality of life and overall well-being of both individuals and communities.

Entrepreneurs and self-employed business owners

The Entrepreneur and Self-Employed Business Owner category allows foreign nationals to obtain work permits to run their own businesses as long as they control at least 50% of the business in question, can demonstrate that their work in Canada will be temporary or seasonal, and that the work will generate significant economic, social or cultural benefits, or opportunities for Canadians. 

For non-seasonal businesses, a foreign national applying for a work permit under this category would need to provide evidence that they only intend to work in Canada temporarily and that they plan to hire employees to run the business after its start-up. The foreign national must demonstrate that their work in Canada will be of a temporary nature, that they maintain the capacity and willingness to leave Canada, and that they maintain stronger ties to their residence outside of Canada.

The assessment of significant economic, social or cultural benefits or opportunities under this category mirrors that of the Significant Benefit category described above. The type of business or amount of investment is not determinative of whether significant benefits will be created. Instead, the business must provide a meaningful impact to the local or regional economy. For example, a convenience store or franchise business may not create significant benefits in a large urban centre but could meaningfully enhance the economy in a rural area.

Provincial nominees

Foreign nationals nominated for permanent residence by a specific province may be issued employer-sponsored work permits under the Provincial Nominee category where the government of a particular province or territory determines that there is an urgent requirement for the foreign national to begin the job prior to obtaining permanent residence. Depending on the Provincial Nominee programme that issued the nomination, the work permit may be for a specific role at a third-party employer, or for a role at a business started by or purchased by the foreign national under an entrepreneur stream. Provincial Nominee programme entrepreneur streams typically require the foreign national to provide a business plan and enter into a performance agreement with a provincial government to implement the business plan for the duration of the work permit, with eligibility for permanent residence ultimately being contingent on the execution of the business plan.

LMIA-Required Categories

Labour Market Impact Assessments – general stream

If a foreign national is not eligible for a work permit under an LMIA exemption, their employer will be required to apply for a positive LMIA from Employment and Social Development Canada (ESDC) before the foreign national can apply for a work permit. The LMIA process is expected to be used as a “last resort” when an employer is not able to fulfil their labour needs through the Canadian labour market or an LMIA-exempt work permit category. The purpose of an LMIA application is to demonstrate that the employment offer being made to the foreign national is genuine, consistent with the employer’s reasonable employment needs, and will have a neutral or positive effect on the labour market in Canada.

Under the general LMIA stream, part of demonstrating that the employment of the foreign national will have a neutral or positive effect on the labour market in Canada involves conducting LMIA-compliant recruitment for the position being offered to the foreign national to show that no candidate in the Canadian labour market could be identified who was qualified for the position. The recruitment will need to disclose details such as the duties of the position, the job requirements, and the compensation being offered. 

For positions being offered a wage that is below the provincial median wage, employers are subject to additional requirements. These employers are subject to a 20–30% cap on the proportion of foreign workers that can be hired in low-wage positions at a specific work location. They must also pay for round-trip transportation costs for foreign workers to arrive at their work location in Canada at the beginning of their work period, and to return to their country of residence at the end of their work period, and provide or ensure that suitable and affordable housing is available for the foreign workers they will employ.

Labour Market Impact Assessments – Global Talent Stream (GTS)

The GTS is intended to provide timely and client-centred service to employers that need to access highly skilled global talent to expand their workforce in Canada and to be competitive on a global scale. Compared to the general LMIA stream, the GTS offers faster processing, a more facilitative service, and greater predictability of outcomes.

Innovative companies referred to ESDC by a designated referral partner, which need unique and specialised foreign nationals in order to scale up and grow may apply through Category A of the GTS. The role of designated referral partners is to review and vouch for innovative Canadian companies that have a focus on innovation, a willingness and capability to grow or scale up, and are seeking to fill a unique and specialised position in the company with a qualified foreign worker that they have already identified. Generally, a company eligible to be referred to Category A of the GTS should be seeking to fill a very small number of unique and specialised positions (eg, one to two positions per year), where there are few specialised individuals with the unique skill set required for the positions being filled.

Canadian companies that need to hire highly skilled foreign workers for occupations determined by ESDC to be in demand and for which there is insufficient domestic labour supply, may apply through Category B of the GTS. ESDC defines a list of specific occupations eligible under this category. Historically, this list has consisted primarily of software and information technology occupations, as well as certain types of engineers.

International Experience Canada (IEC) Working Holiday Programme

Addressing the same policy objectives as the IEC Young Professionals and International Co-op programme, the IEC Working Holiday programme allows foreign national youths of certain countries to obtain open work permits allowing them to work for any employer in any location in Canada to subsidise their stay as they travel and discover the country. Eligibility requirements for this IEC programme are specific to each country or territory that holds a bilateral agreement or arrangement with Canada, and participants in the IEC Working Holiday programme may be eligible to participate in other IEC programmes.

Post-graduation Work Permit (PGWP) Programme

The Post-graduation Work Permit (PGWP) programme allows students who have graduated from eligible Canadian post-secondary institutions to obtain an open work permit to gain Canadian work experience. This helps the skills and knowledge gained through their Canadian education to accrue to Canadian businesses, in addition to helping graduates qualify for permanent residence in the future, further maintaining the benefits of their education within the Canadian market. Each student can receive only one PGWP in their lifetime.

To obtain a PGWP, a student must have completed a PGWP-eligible programme of studies leading to a degree, diploma or certificate at an eligible institution in Canada, and have maintained full-time student status in Canada during each academic session of the programme(s) of study they completed.

General Business Visitor Category

The general business visitor category allows for foreign nationals to enter Canada to engage in international business activities without directly entering the Canadian labour market (ie, not engaging in a business activity that competes directly with Canadians in the marketplace). The foreign national’s primary source of remuneration for the business activity, their principal place of business, and the location of the profits accrued through their activities must all be outside Canada. The activities of the foreign national must also be international in scope.

Examples of activities that fall under the general business visitor category include:

• business meetings or information gathering, with all follow-up work conducted outside Canada;
• attending conferences, conventions and trade fairs; and
• making sales, including sales calls, sales demonstrations and presentations, taking orders and negotiating contracts for goods and services.

After-Sales and After-Lease Service

Foreign nationals may enter Canada as business visitors if they are seeking entry to perform after-sales or after-lease services related to service contracts for specialised commercial or industrial equipment purchased or leased outside Canada. These services may only consist of: installation, testing, repair and servicing of non-Canadian commercial or industrial equipment, including computer software and computer software upgrades; supervision of installation; or training of hands-on workers or customers after the installation. These services should not include hands-on activities typically performed by construction or building tradespeople. The service contract listing the after-sales or after-lease service must have been included explicitly as part of the original equipment sales or lease agreement.

Training Activities

Foreign nationals may enter Canada as business visitors to train prospective users or maintenance staff of a Canadian purchaser or leaser of specialised equipment obtained outside Canada. This training or familiarisation service should take place after installation of the equipment has been completed. These foreign nationals must maintain their employment position outside Canada and must not be paid any compensation, other than expenses, by the Canadian organisation.

Supervisory Personnel

Foreign nationals may enter Canada as business visitors solely to supervise the installation of specialised machinery purchased or leased outside Canada, or the dismantling of equipment or machinery purchased in Canada for relocation outside Canada. This should not include any hands-on work, unless proprietary or product-specific knowledge is required to install, assemble or dismantle the equipment or machinery.

Short-Term Work Permit Exemptions

Based on a public policy introduced in 2017, foreign nationals intending to enter Canada for a short-term period to perform highly skilled work are eligible for a work permit exemption. This exemption only applies to qualified foreign nationals intending to perform work of a short duration (up to 15 or 30 consecutive calendar days) in a highly skilled or managerial occupation. If entering for up to 15 days, this exemption may be used once every six months, and if entering for up to 30 days, this exemption may be used once every 12 months. Consecutive uses are not permitted.

A foreign national working for a Canadian employer remotely from within Canada would be subject to the same work permit and authorisation-to-work requirements and restrictions as a foreign national working in-person in Canada. However, a work permit or other authorisation to work in Canada may not be required for some foreign nationals working remotely for overseas employers.

In Canadian immigration regulations and policy, “work” is defined as an activity for which wages are paid or commission is earned, or that competes directly with the activities of Canadians in the Canadian labour market. In circumstances where a foreign national is working remotely from within Canada for an overseas employer and accruing wages outside of Canada, that foreign national would not directly be taking away a work opportunity from a Canadian and they would not be receiving wages within Canada. These activities would not directly impact the Canadian labour market. Therefore, a foreign national would not require a work permit or authorisation to work, to engage in remote work in these circumstances.

Under Canadian immigration regulations, a work permit may not be issued to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought, which includes an assessment of the foreign national’s language capabilities. In any employer-sponsored work permit application, the employer must disclose the language requirements they expect for the position (ie, English, French, both, neither, or in rare cases, additional languages). In assessing whether a foreign national meets these language requirements, the Canadian government department for Immigration, Refugees and Citizenship Canada (IRCC) may consider any arrangements the employer has made to accommodate workers with limited language abilities, and whether the ability to perform the duties of the position would in fact be compromised by weak language skills.

At this time, COVID-19 vaccinations are not a requirement for travel to Canada.

Medical examinations are generally not required to work in or visit Canada. However, medical examinations are a requirement for foreign nationals seeking to work in Canada in jobs in which public health must be protected, such as clinical laboratory workers, workers in healthcare or childcare, or other similar occupations. Medical examinations are also a requirement for foreign nationals that are seeking to work in Canada for more than six months and who have lived in certain countries, defined by the IRCC, for at least six months in the preceding year.

For Canadian immigration purposes, an immigration medical examination must be performed by a panel physician approved by the IRCC. These panel physicians are located in almost every country across the world.

Wages

Under several work permit categories, it is a requirement that a foreign national be paid at least the prevailing wage for their occupation in their work location, defined as the median hourly wage for the occupation and work location established through Statistics Canada’s Labour Force Survey and other ESDC sources. These work permit categories include Specialised Knowledge ICTs and all LMIA streams. Prevailing wage figures are updated periodically and it is the employer’s responsibility to ensure that the wages of foreign workers are regularly reviewed and revised such that they continue to meet the prevailing wage.

Under the general LMIA stream, it is also a requirement that each foreign national should receive a wage that is within the range of wages being paid to existing employees in the same occupation and work location with the same level of experience as the foreign national. Additionally, where recruitment of Canadians is required to obtain a positive LMIA, any foreign national hired on the basis of that positive LMIA must receive compensation that is the same as that set out in the recruitment advertisements.

Qualifications

In any employer-sponsored work permit application, the employer must disclose the education, experience, certification, and other qualifications they require the foreign worker to have to be qualified to perform the duties of the position. These qualifications must also be consistent with applicable provincial or territorial regulatory requirements for the occupation, as well as employment requirements defined by Canada’s National Occupational Classification (NOC) system. While the NOC system has not imposed mandatory qualification requirements on most occupations, there are certain occupations, such as some types of engineers and skilled tradespeople, where the applicant must meet mandatory degree or certification requirements.

All employer-sponsored work permits are limited to a specific employer and occupation. Such work permits only allow a foreign national to be employed in Canada by the employer that provided the sponsorship, and in the occupation initially offered to the foreign national. In order to accept employment with a different employer or in a different occupation with the same employer, a new employer-sponsored work permit application must be completed and a new work permit must be issued before any changes can be made to the foreign national’s employment.

LMIA Application Processing Times

Once submitted, LMIA applications under the general stream are processed within approximately two to three months. Historically, LMIA application processing times have been highly variable, with average processing times exceeding four months for a multi-year period.

LMIA applications under the GTS are processed within a service standard of ten business days. Since the programme was introduced in 2017, ESDC has generally adhered closely to this service standard.

Work Permit Application Processing Times

Foreign nationals that do not require a visa to enter Canada are eligible to submit work permit applications at the port of entry on arrival in Canada. If approved, such work permit applications result in the work permit being issued directly at the port of entry. This is the fastest method by which to obtain a work permit.

Alongside the GTS, in 2017 the IRCC introduced the Global Skills Strategy (GSS) to help employers attract top talent to work for their company and provide a fast and predictable process to do so. Employer-sponsored work permit applications eligible for processing under the GSS qualify for a two-week processing service standard. Foreign nationals applying for a work permit under an LMIA-exempt category, other than an IEC programme, are eligible for processing under the GSS as long as they are applying from outside Canada to do a highly skilled or managerial occupation. Foreign nationals applying for a work permit based on a positive LMIA are eligible for processing under the GSS as long as they are applying from outside Canada and the positive LMIA was issued under the GTS.

Foreign nationals that do not qualify to apply for a work permit at a port of entry and that are not eligible for processing under the GSS are subject to the IRCC’s regular overseas work permit application processing times. These processing times are highly variable from country to country and from time to time. An average overseas processing time would be approximately eight weeks, but some processing times vary from as little as two weeks to as long as over 52 weeks.

A foreign national outside Canada that applies for a work permit is not subject to any restrictions on travel to Canada while the application is processing. They are still permitted to travel to Canada as a visitor or based on a work or study permit that they may already hold, as long as they continue to meet the requirements of visitor status or their existing work or study permit.

A foreign national inside Canada who has applied for a work permit is also generally not subject to any restrictions on travel outside Canada. They may leave and re-enter Canada while the work permit application is being processed without affecting the processing of that application. 

However, all such foreign nationals seeking to enter or re-enter Canada must ensure that they continue to meet all the legal requirements to enter Canada, including holding a valid entry visa or electronic travel authorisation (eTA) depending on their country of citizenship. For work permit holders specifically, depending on the type of work permit application that was made, an entry visa or eTA may not have been automatically issued along with a work permit, so a separate entry visa or eTA application may be required after the work permit application has been processed.

Maintained Status

If a foreign national holding a valid work permit applies for a work permit renewal from within Canada prior to the expiry of that work permit, they benefit from “maintained status” under Canadian immigration regulations. After the expiry of their work permit, a foreign national with maintained status is authorised to remain in Canada and to continue to work in Canada under the same conditions as their previous work permit until a decision is made on their work permit renewal application. Maintained status is lost as soon as the foreign national leaves Canada. If they do leave Canada, they may be permitted to re-enter Canada as a visitor, subject to all the ordinary requirements and restrictions of visitor status, including restrictions on the work-related activities that may be performed by visitors in Canada.

Procedures governing the urgent processing of work permit applications have not been explicitly set out in Canadian immigration legislation or policy. Requests for urgent processing are assessed on a case-by-case basis by the IRCC, and local management at IRCC offices is expected to exercise sound judgement to determine whether a different level and manner of service are required in a particular situation.

Representative examples of cases that may warrant urgent processing include foreign workers travelling urgently for business or due to a death in the family or serious illness, or foreign medical doctors involved in the treatment of patients who are required to change employers or work locations to continue providing treatment.

Port of Entry Applications

Foreign nationals that are exempt from the requirement to hold an entry visa to enter Canada are permitted to submit work permit applications on arrival at a port of entry in Canada for immediate processing. These foreign nationals include citizens of various visa-exempt countries (eg, the USA, Mexico, Australia, most EU member states) as well as US permanent residents. Foreign nationals submitting work permit applications at a port of entry must meet all ordinary work permit application requirements, including the requirement to provide evidence of a valid LMIA or LMIA-exempt offer of employment from a pre-arranged employer, as well as evidence of their ability to perform the work required by the employer.

If a foreign national is already in Canada and seeks to apply for a work permit at a port of entry, they may do so by exiting Canada and immediately re-entering Canada via a land border with the United States in a private vehicle. This process is colloquially known as “flagpoling”. If the work permit application is approved at a port of entry, the work permit will be issued immediately in person by the border services officer. As this process necessarily involves the foreign national leaving Canada, entering the United States, and re-entering Canada, a foreign national attempting to apply for a work permit by flagpoling naturally would be assuming the risks inherent to these actions, including risks associated with being refused entry or being detained by United States or Canadian border services.

Public Policy on Changing Employment

As of 6 May 2020, a temporary public policy was issued by the Canadian government allowing temporary workers already in Canada to begin work more quickly in their new employment position in advance of a final decision on their work permit application. These measures enable foreign nationals who are in Canada and already authorised to work in Canada, and who require a new employer-sponsored work permit to commence a new job, to begin working in the new job while their work permit application is pending. If a positive decision is granted under this public policy, the foreign national is able to change employers or employment positions within a matter of weeks, rather than the months it would take for a typical work permit application to be processed from within Canada.

This public policy is in effect as of the date of writing and will remain in effect until it is revoked by the minister of Immigration, Refugees and Citizenship.

Before Entering Canada

After a work permit application is submitted, the foreign national may need to complete further requirements for the application to be processed. These include the requirement to provide biometrics (fingerprints and photographs) at an overseas visa application centre or US application support center, complete immigration medical examinations with a panel physician, and submit their passport to a visa application centre for an entry visa to be issued in it.

Foreign nationals whose work permit applications have been approved are still subject to a final examination by a border services officer on entry into Canada at a port of entry. The border services officer may review the work permit application file and supporting documentation and makes the final determination as to whether to issue a work permit to the foreign national.

After Entering Canada

Once in Canada, to register for various services and participate in necessary administrative procedures such as filing income tax returns, opening Canadian bank accounts, and accessing government benefits, foreign nationals must obtain a Social Insurance Number (SIN) from Employment and Social Development Canada. Employees must apply for a SIN within three days of beginning work in Canada, and employers must request each new employee’s SIN within three days of their employment start date and ensure that employees have a valid SIN.

After the issuance of work permits to foreign nationals, employers are subject to ongoing employer compliance requirements under the terms of their LMIA, LMIA-exempt offer of employment, and Canadian immigration regulations, as applicable. Employers must also keep all relevant records pertaining to LMIAs, work permits and other conditions imposed on foreign workers for six years, beginning on the first day of the period of employment for which the work permit was issued. Further details on employer compliance requirements have been provided under 6. Enforcement.

A government processing fee of CAD1,000 per position being requested is required to submit an LMIA application under the general stream or GTS. LMIA applications for occupations in primary agriculture are exempt from these processing fees.

A government processing fee of CAD230 is required for each LMIA-exempt offer of employment submitted in support an LMIA-exempt work permit application.

A government processing fee of CAD155 is required to submit most work permit applications, including extensions. A government processing fee of CAD161 is applicable for IEC work permit applications. Open work permit applications require an additional government open work permit holder fee of CAD100.

Foreign nationals applying for a work permit must also pay a government biometrics processing fee of CAD85 per applicant. Children under the age of 14 or adults over the age of 79 are exempt from the requirement to complete biometrics or pay the biometrics processing fee.

Most visa costs for an employment visa can be paid by the individual foreign national rather than the employer. However, only the CAD1,000 government processing fee associated with LMIA applications and the CAD230 government processing fee associated with LMIA-exempt offers of employment cannot be paid by or recovered from the individual foreign national.

Any employer that sponsors the employment of a foreign national must comply with conditions imposed by Canadian immigration regulations, including the requirement to comply with inspections conducted by ESDC to ensure they have met these conditions. Inspections can be conducted if ESDC has reason to suspect there has been non-compliance, the employer has previously been non-compliant, or if the employer has been selected for random verification. Since the COVID-19 pandemic, ESDC has also been allowed to conduct compliance inspections if an employee is or was subject to an order or rule under the Emergencies Act or Quarantine Act, or if a communicable disease has been found at the worksite.

Employer compliance inspections may be initiated from the first day of employment for which a work permit is issued up to a maximum of six years thereafter. They may be conducted on site or virtually, announced or unannounced, and without a warrant. 

Compliance Obligations

An employer sponsoring an employment-based visa in Canada, under an LMIA-based or LMIA-exempt stream, is subject to significant compliance obligations in accordance with their LMIA-based or LMIA-exempt offer of employment. Inspections may be conducted to verify compliance with any number of these compliance obligations. A non-exhaustive summary of several major compliance obligations is provided below. 

Legal compliance

Employers must comply with all federal and provincial and/or territorial laws that regulate employment and recruiting. These laws vary between provinces and include provincial licensing requirements for employers and recruiters targeting foreign nationals and specific recruitment venues that must be used when recruiting foreign nationals to work in certain provinces. It also includes labour laws dealing with health and safety, unfair dismissal, the right to file complaints, leave, and workplace privacy laws.

Active engagement

Employers must remain actively engaged in the business in respect of which the offer of employment was made to the foreign national for the length of the work permit. They must actively provide goods or services to their applicable consumers.

Occupation, wages and working conditions

The occupation and duties of a foreign national employed under an employer-sponsored work permit must be the same as those described in the LMIA or LMIA-exempt offer of employment. In cases where an employer wishes to promote the foreign national or otherwise change their duties, the foreign national must obtain a new work permit before the change is implemented.

Employers must pay wages that are substantially the same and no less favourable than those set out in the LMIA or LMIA-exempt offer of employment. Pay increases may be acceptable up to the current rate of inflation for the year, but the reason for the raise will be reviewed during an inspection. Wages paid that are higher than those initially set out may be indicative of a change in duties, which could imply a different occupation than that offered and therefore a finding of non-compliance.

Working conditions include non-wage-related remuneration benefits and entitlements such as employment location, hours of work, accommodation and other non-taxable benefits. If a change in working conditions negatively affects a worker, the employer risks being found non-compliant with the working conditions in the LMIA or LMIA-exempt offer of employment.

Abuse-free workplace

All employers of foreign nationals must prove they have made reasonable efforts to provide a workplace that is free of abuse. This includes physical, sexual, psychological or financial abuse, as well as reprisals or threats made against a foreign national affecting their employment or working conditions, because the foreign national reported non-compliance, or co-operated with the employer’s compliance inspection.

Compliance with LMIA commitments

In having an LMIA application approved, an employer may have agreed to various commitments which may include creating or protecting jobs for Canadians, hiring or training Canadians, or developing or transferring skills and knowledge for the benefit of Canadians. In an employer compliance inspection, ESDC may need to review the steps the employer has taken to fulfil these commitments. 

Penalties

If an employer fails to demonstrate compliance with one or more conditions under Canadian immigration regulations the employer could face severe financial and regulatory consequences. A finding of non-compliance may also be made if an employer refuses to provide the requested documentation or is otherwise uncooperative during an inspection.

Financial penalties for non-compliance range from a fine of CAD100,000 per violation, to a maximum of CAD1 million per year. Previously issued LMIAs or work permits may be suspended or revoked for non-compliance. A temporary or permanent ban on employing foreign nationals under the LMIA or LMIA-exempt category may be imposed for the most serious violations. The Canadian government also maintains a public website listing the business names and addresses of businesses found to be non-compliant with immigration regulations, including the details of their violations and the consequences imposed on them.

In addition to this employer compliance regime, it is also a quasi-criminal offence under Canadian law to employ a foreign national in a capacity for which the foreign national is not authorised to be employed. This includes situations such as the employment of foreign nationals without valid authorisation to work, employing foreign nationals whose work permits do not authorise them to be employed by a particular employer, and employing a foreign national after their work permit has expired. A person found guilty of any of these offences could receive a fine of up to CAD50,000 and up to two years’ imprisonment.

As set out in 6.2 Employer Obligations, it is an offence to employ a foreign national in a capacity for which the foreign national is not authorised to be employed. The onus is on employers to determine whether foreign nationals they seek to employ are authorised to be employed in the positions offered for the duration of their employment. There is no overarching government body maintaining a clear record of whether any individual in Canada may be employed in any specific capacity. Given the number of immigration regulations and policies in Canada and the large variations between immigration categories, definitively determining whether foreign nationals are duly authorised to be employed in Canada is a significant challenge for any employer. 

Dependant visas may be available for a spouse or dependant child of a foreign national applying for a work permit. Spouses may be married partners or common-law partners (a couple that has lived together for at least one year in a conjugal relationship) and may include opposite-sex and same-sex couples. Dependant children include biological or adopted children as long as they are under the age of 22 and do not have a spouse or common-law partner of their own.

A spouse of an employer-sponsored work permit holder, other than those supported by an LMIA under the Low-Wage or Agricultural Stream, is eligible to obtain an open work permit for the duration of their spouse’s work permit, allowing them to accept employment with any employer in any position in Canada. A spouse of an open work permit holder may also be eligible to obtain an open work permit for the duration of their spouse’s work permit as long as the spouse that already has an open work permit demonstrates that they are already employed in Canada.

Dependant children of foreign nationals working in Canada, whether on employer-sponsored or open work permits, other than those supported by an LMIA under the Low-Wage or Agricultural Stream, are also eligible to obtain open work permits for the duration of their parent’s work permit.

In January 2023, the Canadian government announced that temporary measures would be put in place over the next two years to expand eligibility for open work permits to spouses and children in a phased approach. As of the time of writing, spouses and children of foreign nationals employed in Canada supported by an LMIA under the Low-Wage or Agricultural Stream are not eligible to apply for open work permits, but it has been announced that future phases of these temporary measures will expand eligibility for open work permits to these dependants.