ARTICLES/Q&A
Work
I am in Toronto on a work permit and my husband and son are accompanying me. My husband has an open work permit and my son has a visitor record. We applied for permanent residence a month ago. As my son is 17 years old and would like to obtain a summer job. Is this possible?
A dependent child cannot obtain a work permit unless there is a specific program available in your province. Although Ontario previously had a pilot project which allowed dependent children to obtain work permits, this is no longer available. Once your son is admitted to college or university, he will require a study permit instead of a visitor record, and he will be able to work off campus during his studies and during school breaks, such as winter and summer vacation.
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I operate a company in Ontario and want to hire a foreign worker from China. I have read the requirements and see that I cannot require any language other than French or English; however, I really need a Mandarin speaker in this position. Can I still apply?
The current rules to apply for a Labour Market Impact Assessment (LMIA) state that only English or French can be listed as required languages, unless the employer can demonstrate that another language is absolutely necessary to the performance of the job, such as translators. In limited cases, however, an employer can provide a detailed rationale to explain the need for another language. You should be very careful with this, as ESDC can refuse if they do not accept your rationale. You should obtain proper legal advice prior to starting the process.
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I am currently in Canada on a work permit and I would like to take some courses during the evenings. As these courses would eventually lead to a post-graduate college diploma, I believe I would require a study permit. However, as the studies will be part-time, I am not sure I am eligible for a study permit. Could I get a study permit?
You require a study permit if you will be engaging in studies for longer than a six-month period and you do not meet one of the exceptions. As you have indicated you will be pursuing a diploma, you will require a study permit and you should apply for and obtain one prior to commencing studies. It does not matter that you plan to study part-time – you must obtain a study permit, and meet the requirements, including obtaining an offer of admission from a designated learning institution and proving sufficient funds to pay for your studies. You should obtain proper legal advice if you have further questions.
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My common law partner is a student in Canada and he will graduate next month, in December and will apply for a post-graduation work permit. I am on the last year of my post-graduation work permit and I will be eligible to apply for permanent residence in January; however, my work permit will expire in June and I will not be a permanent resident by then. I want to remain in Canada after June and either obtain an extension of my work permit or stay as a visitor. Will this be possible?
As your common law partner will be applying for a post-graduation work permit, you could apply to extend your work permit as his dependent, as long as he obtains employment. Once he can demonstrate that he is employed in an occupation which is NOC A, B or 0, you can apply for an open work permit as his common law partner. Alternatively, you may be able to apply for a bridging open work permit if you have already submitted your application for permanent residence and you have less than four months left on your current work permit. You should obtain proper legal advice prior to applying.
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I came to Canada on a visitor visa and I found a job opportunity. Could I apply for a work permit while I’m in Canada?
First of all, applications for work permits should be made outside Canada online or at a visa post prior to entering Canada. In addition, generally a Canadian employer would require a labour market impact assessment (LMIA) in order to hire a foreign worker, unless the applicant or the position is eligible for an exemption. As further information about the nature and circumstances of the employment is required, you should obtain proper legal advice prior to applying.
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I am the owner and general manager of a company in Ontario, and we are marketing our technology and related services to customers in China. We have a sales partner in China, and we would like to hire one of the senior managers to work for us for a year in Canada. As this company is affiliated with us, could we do an intra-company transfer?
You cannot do an intra-company transfer work permit application unless the two companies are related to each other as a parent, subsidiary, affiliate or branch. The term “affiliate” is defined by law and does not include business partners. The definition of affiliate is either i) one of two subsidiaries, both of which are owned and controlled by the same parent or individual; or ii) one of two legal entities, owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each company. As it appears that your company’s relationship with your sales partner would not meet this definition, you would not be able to use this type of work permit. Having said that, you could consider another type of work permit, depending on the requirements of the position and the background of the prospective employee. You should obtain detailed legal advice to determine the best strategy.
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I completed a bachelor’s degree and applied for a Post-graduation Work Permit right after. I just received a letter from IRCC refusing my application because my studies failed to meet the minimum requirements for the work permit. The reason is that I had studied part-time for two semesters because I was overwhelmed and could not handle the course load. I had no idea that this would affect my qualification for a work permit, and now I have finished a four-year degree with a high grade point average. Is there anything I can do? I came to Canada as a high school student and have spent a huge amount of time, effort and money to be here. I really want to stay in Canada, work, and then apply for permanent residence.
Unfortunately, the requirements for a Post-Graduation Work Permit (PGWP) are very specific and clear. Unless part-time studies were as a result of Covid-19, they are not permitted except during the last semester of study. Your university’s international student department should have advised you have the consequences, but IRCC will not usually make exceptions to the rule. You could apply for a Temporary Resident Permit (TRP) and request an officer to consider humanitarian grounds to grant you status given your long history, the reasons for studying part-time, and the impact of being refused a PGWP. You will need to explain your circumstances in detail and provide supporting documentation such as a letter from your university, a doctor’s note or other medical evidence (if available), and letters of support. You could also consider re-enrolling in school and continuing studies so that you can qualify for a PGWP in the future. You should obtain proper legal advice from an immigration lawyer as soon as possible, to consider the various options.
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My friend applied for a work permit after her prospective Canadian employer obtained a Labour Market Impact Assessment. She recently received a letter stating that the officer doubts if she is qualified for the job and asking her to respond. She is a highly qualified computer engineer and provided all of the necessary proof. How should she respond?
This type of letter is known as a “procedural fairness letter” and means that the officer has concerns about the information or documents provided. It could be that the documents were insufficiently detailed, which could be relatively easy to address. However, it could also be due to an inconsistency in the information provided, or perhaps the officer discovered contradictory information online or through an investigation. Your friend should obtain proper advice from a lawyer immediately, as usually the officer will provide a short timeframe to respond.
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I have heard that there is a new way for farms to bring in workers that will allow them to work all year and eventually get permanent residence. Is this program available?
There has always been a way for agricultural workers to obtain permanent residence under certain circumstances, but the Agri-Food Pilot project established in 2020 has made the application process easier for year-round workers. The new pilot includes:
- Meat processing occupations including retail butchers, industrial butchers and food processing labourers;
- Harvesting labourers for year-round mushroom production and greenhouse crop production;
- General farm workers for year-round mushroom production, greenhouse crop production, or livestock raising; and
- Farm supervisors and specialized livestock workers for meat processing, year-round mushroom production, greenhouse crop production or livestock raising.
To find out about specific eligibility requirements of this program you may contact us for a consultation ad assessment.
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I am graduating from university and would like to apply for a post-graduation work permit. As I haven’t gone home for a visit for over two years, I would like to spend the summer in China before beginning work in September. Could I apply for my work permit at the Canadian embassy instead of inside Canada? Or should I apply and wait in Canada first?
Although it is legally permitted to apply for a post-graduation work permit (PGWP) from outside of Canada, you should consider the lengthy processing times at embassies and consulates abroad, and the delays caused by COVID-19. If you really need to return to China, you could apply for a post-graduation work permit inside Canada and then return to China while your application is being processed, as long as your multiple entry temporary resident visa (visitor visa) is still valid. You must make sure your visa is valid prior to departing, as you will be unable to re-enter Canada without a valid visa. If the PGWP is approved while you are away, you will be able to re-enter Canada on the work permit. If it is still being processed when you return, you can re-enter as a student, provided your study permit is still valid, or as a visitor if your study permit has expired. Be prepared to answer questions and prove that you have applied for a PGWP. As these issues require careful planning, you should obtain legal advice from a lawyer prior to departure.
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I am going to complete the requirement for my degree in December, but my study permit will not expire until July of next year. I understand that I have 180 days to apply for my post-graduation work permit, so I am thinking to go back to my home country for a few months before looking for a job in Canada. I would like to confirm that I can apply in June of next year.
You should consider the timing of your application for a post-graduation work permit (PGWP) carefully. IRCC now allows students to apply within 180 days of receiving confirmation that you have completed your program and if you are in Canada, you must have valid status to apply. According to the regulations, your study permit will expire 90 days after the day you complete your studies, no matter what the expiry date on your study permit is. This means that your study permit will expire in or around the end of February or March, and you will have to apply to extend your status as a visitor prior to the 90-day period. (For those who let their status lapse by mistake, they can apply for restoration of status within 90 days of allowing their study permit to expire). If you leave Canada, you can either apply from outside of Canada, or if you wish to return to Canada, you must make sure that you can re-enter Canada as a visitor prior to the end of the 180-day period and apply for the PGWP on time. You should get proper legal advice prior to deciding your application strategy.
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I own a company in Mississauga, Ontario and we hired a foreign worker several years ago. We obtained a Labour Market Impact Assessment for him, and after one year, he returned to Hong Kong, as planned. Last week, we received a letter from Employment and Social Development Canada saying that they were performing a compliance review and asking us for documents relating to the employee from 2016. This will take a long time to prepare and we are very busy with our business. Is it proper for them to ask us for documents regarding a foreign worker who has not worked for us for over two years and who has already left the country? Do we have to cooperate with ESDC? What are the possible consequences if we do not respond or do not provide the documents?
All employers who obtained a Labour Market Impact Assessment (LMIA) for a foreign worker agreed at the time of hiring the worker to comply with certain terms and conditions. If you look at the LMIA approval itself, you will see that you have agreed to these terms as a pre-condition to hiring the foreign worker. If you do not respond or cooperate with ESDC, you could be found to have violated the terms and conditions, and could face the following penalties:
- warnings;
- administrative monetary penalties ranging from $500 to $100,000 per violation, up to a maximum of $1 million over one year, per employer;
- a ban of one, two, five or ten years, or permanent bans for the most serious violations from the Temporary Foreign Workers Program (TFWP) and International Mobility Program (IMP);
- the publication of their name and address on the IRCC public website with details of the violation(s) and/or consequence(s);
- the revocation or suspension of previously-issued LMIAs.
While it is very true that going through a compliance review can be a significant inconvenience, it is generally worth cooperating and providing the required documents. If there is a problem in doing so, it would be highly advisable to seek legal counsel prior to responding to the request.
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