TECHNOLOGY LAW CORNER

Crossing Borders, Part 2: Getting Your Technology Employee to Canada

Crossing Borders, Part 1: The Intellectual Property Implications

In general, hiring a foreign technology employee to work in Canada on a temporary basis entails a two-step process. First, the employer needs to obtain a Human Resources and Skills Development Canada (HRSDC) job offer confirmation. If the HRSDC provides a positive or neutral Labour Market Opinion (LMO), the foreign worker then must obtain a work permit from Citizenship and Immigration Canada (CIC).

Step 1: HRSDC Confirmation (LMO)

When assessing an employer’s job offer to a foreign worker, HRSDC and CIC consider the following factors:

  • the occupation that the foreign worker will be employed in;
  • the wages and working conditions of the position offered;
  • the employer’s advertisement and recruitment efforts;
  • the labor market benefits related to the entry of the foreign worker;
  • the consultations, if any, with the appropriate union;
  • whether the entry of the foreign worker is likely to affect the settlement of a labor dispute; and
  • whether the job is within a regulated field, requiring the foreign worker to obtain a license to work in their field.

Occupation and Job Title

The position offered to the foreign technology employee must fall within one of the job titles in the National Occupational Classification (NOC) system. The specific title of the position being offered to the foreign technology employee will depend on the main duties that the employer expects the foreign worker to perform.

The NOC assists the HRSDC and CIC to identify wages and labor market trends which, in turn, may determine whether the wage offered meets or exceeds the prevailing wages within the occupation being offered, and whether the foreign worker’s entry into the Canadian labor market would have a positive, neutral or negative effect on that market.

Wages and Working Conditions

The wage and benefits offered must be consistent with the wages paid and benefits extended to Canadian citizens and permanent residents working in the same occupation and geographical area.

In addition, the wage range identified in the employer’s advertisement for the position must also be consistent with the prevailing wage, which is the average hourly wage for the requested occupation in the specified geographical area. However, HRSDC/Service Canada has discretion to set the prevailing wage rate that an employer must offer in order to address unique circumstances in specific cases.

Lastly, employers must offer working conditions that are consistent with federal and provincial standards for the occupation and workplace.

Minimum Advertising Requirements

Employers seeking to hire temporary foreign technology employees must demonstrate that they undertook efforts to recruit Canadian citizens or permanent residents to fill the position offered to the foreign worker.

The minimum advertising requirements for employers of foreign technology employees are as follows:

  1. Conduct recruitment activities consistent with the practice within the occupation — e.g., advertise on recognized Internet job sites, in journals, newsletters or national newspapers or by consulting unions or professional associations; and/or
  2. Advertise on the national Job Bank (or its equivalent in Newfoundland and Labrador, Saskatchewan or the Northwest Territories) for a minimum of fourteen (14) calendar days, during the three (3) months prior to applying for a LMO.

The minimum advertising requirements require one or both steps depending on the skill type or level required for the IT position being offered (i.e., 0, A or B).

Advertisement criteria vary slightly in the province of Quebec.

Union Consultation

The employer must consult with the union if the position being filled by the foreign worker is part of a bargaining unit. These consultations must include efforts to work with the union to identify unemployed Canadian citizens or permanent residents.

Furthermore, the employer must confirm that the foreign worker and the position being offered are subject to the conditions of the collective agreement.

Labor Disputes

HRSDC and CIC will not provide an LMO or issue a work permit to a foreign worker under certain circumstances:

  • where the position being offered to that worker affects current or foreseeable labor disputes; or
  • where it affects the employment of any Canadian citizen or permanent resident involved in labor disputes.

Regulated Occupations

CIC will not issue a work permit to a foreign worker who does not meet certification and licensing requirements for a regulated occupation in Canada.

Both the employer and the foreign technology employee must take the necessary steps and arrangements with the relevant regulatory body to ensure that the foreign worker obtain the required certification and licensing, if required.

Exceptions to the Rules

The two-step process described above is of general application to all employers in Canada seeking to hire foreign technology employees.

However, exceptions apply for employers offering positions to foreign technology employees from countries with whom Canada has specific international trade agreements such as the North American Free Trade Agreement (NAFTA) and General Agreement on Trade in Services (GATS), and intra-company transferees with highly specialized or advanced knowledge.

For employers seeking to hire foreign technology employees who fall into any of these categories, an LMO from HRSDC is not required.

NAFTA

For employers seeking to hire a foreign technology employee who is a citizen of the United States of America or Mexico, an LMO is not required for the following positions:

  • Computer systems analysts with a bachelor’s degree, a post-secondary degree, or a post-secondary diploma and three years work experience;
  • Engineers with a bachelor’s degree or state/provincial license;
  • Graphic designers with a bachelor’s degree, a post-secondary diploma, or a post-secondary certificate and three years’ work.

Foreign workers who meet the conditions above may apply for a work permit abroad or at a port of entry, without the need for providing an LMO from their employer.

GATS

For employers seeking to hire a foreign technology employee who is a citizen of a member country under the GATS, an LMO is not required for the position of senior computer specialist.

Applicants for senior computer specialist positions must possession at least a master’s degree in computer sciences or related discipline from an accredited academic institution and 10 years of experience in computer sciences.

The Canadian government currently imposes a limit of 10 senior computer specialist entrants per project. The work permit is also limited to a period of 90 days within any 12-month period.

Intra-Company Transferees: Specialized or Advanced Knowledge

Intra-company transferees are exempt from the LMO requirement and may apply for work permits if theya) are seeking entry to work in a parent, subsidiary, branch, or affiliate of a multinational company;

b) will be undertaking employment at a legitimate and continuing establishment of that company; or

c) have been employed (via payroll or by contract) by the company outside Canada in a similar full-time position (not accumulated part-time) for one year in the three-year period immediately preceding the date of the application for a work permit.The worker must demonstrate “specialized knowledge” of a company’s product, processes or service, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

The knowledge that the applicant possesses is not generally held knowledge or common in the business; rather, it is uncommon, unusual and knowledge not generally found in a particular industry. It is truly specialized knowledge.

Oftentimes, a worker with specialized knowledge is critical to the well-being of the company. On the other hand, advanced knowledge is complex or high-level knowledge. It is not necessarily unique or highly specialized; however, a foreign worker with advanced knowledge has a specific background and extensive experience with the employer who is transferring the worker, or experience from within the same industry as the employer’s company.

Due to the highly specialized or advanced knowledge of the worker, the employer would need to undertake extensive and time-consuming efforts to recruit such essential workers; accordingly, CIC and HRSDC recognize that an LMO would not be required in such unique cases.

Step 2: Work Permit

Once an employer has obtained a positive or neutral LMO from HRSDC, the foreign employee must submit the LMO with his or her work permit application. The foreign employee’s credentials, including education and work experience, will be assessed by CIC to determine that the employee meets the requirements for the position offered to him or her.

Furthermore, foreign employees must meet the standard requirements for all foreign individuals who wish to enter Canada. For example, all foreign individuals must be have a valid travel document, be in good health, and not inadmissible on the basis of criminality.

A work permit allows a foreign employee to work in Canada on a temporary basis. If the employer or employee desires to enter or remain Canada on a permanent basis, the employee must apply for permanent residence under one of several categories, including federal skilled worker and provincial nominee program.

Crossing Borders, Part 3: Getting Your Technology Employee to the United States

Maria Margarita L. Primero, BSc (Hons), LLB, BCL, is a barrister and solicitor withHeydary Hamilton PC.

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