Canadian public policy supports the international movement of workers and Canada’s immigration laws set out various mechanisms for individuals to apply for temporary work permits.
Normally, before a foreigner is allowed to work in Canada, the Canadian company offering the position must first obtain a Labour Market Impact Assessment (LMIA) from ESDC (Employment and Social Development Canada). The LMIA, as it is commonly referred to, is a type of labour certification that confirms that the employment will not adversely affect the Canadian labour market, i.e. deprive a Canadian permanent resident or citizen from work they could have obtained.
However, Canadian immigration laws contain exceptions that allow prospective employees to apply directly to Citizenship and Immigration Canada for a work permit, by-passing the employer’s need to obtain a Labour Market Opinion. These exceptions are framed by international agreements such as the United States-Mexico-Canada Agreement (the “USMCA”) and the General Agreement of Trade in Services (the “GATS”) or are driven by public policy considerations.
International agreements such as the USMCA is designed to stimulate trade between Canada, the United States and Mexico by abolishing trade barriers and tariffs.
USMCA’s function:
USMCA facilitates temporary entry for business persons who are citizens of the United States, Mexico and Canada and who are involved in the trade of goods or services, or in investment Activities;
There are four principal categories for business persons under USMCA:
With regard to Professionals, Appendix 2 of Chapter 16 of USMCA lists the occupations covered by the Agreement. Individuals who meet the work experience and educational requirements under the list may apply for a work permit without the need for an LMIA. Click here to view the complete list of Professional Occupations.
Intra-company transferees are employed by an American or Mexican enterprise in a managerial or executive capacity, or in one which involves specialized knowledge, and are being transferred to the Canadian enterprise, parent, branch, subsidiary, or affiliate, to provide services in the same capacity.
Traders and investors carry on substantial trade in goods or services between the United States or Mexico and Canada or have committed, or are in the process of committing, a substantial amount of capital in Canada. Traders and Investors must be employed in a supervisory or executive capacity or one that involves essential skills.
Intra-Company transfers are governed by the Immigration and Refugee Protection Regulations, as well as international agreements such as GATS and USMCA. Qualified intra-company transferees are exempt from the LMIA requirement. In order to qualify as an intra-company transferee, the employee must:
Intra-Company transferees are eligible for an initial work permit of one year, which may be extended for up to 5 years for specialized knowledge employees and up to 7 years for executives and senior managers.
Specialized knowledge workers are considered “key personnel”. They will possess knowledge not readily available in the Canadian labour market that is considered both “unique” and “uncommon”. An Intra-Company transferee in the specialized knowledge category must possess “knowledge at an advanced level of expertise” and “proprietary knowledge of the company’s product, service, research, equipment, techniques or management”. The applicant must demonstrate BOTH proprietary knowledge and advanced expertise.
Advanced Expertise is defined as specialized knowledge gained through significant and recent experience with the organization, and used by the individual to contribute significantly to the employer’s productivity.
Proprietary knowledge is company-specific. It is not enough for an applicant merely to demonstrate that he or she is knowledgeable in the field. The employee must show company-specific knowledge not widely held by other professionals in the field.
Intra-Company transferees under the specialized knowledge category must earn a wage equal to or greater than the median wage for their occupation and region as calculated by Employment and Social Development Canada.
Executives and Senior Managers operate at the highest levels within an organization. Only senior management positions will qualify under this category. IRCC will look at the applicant’s level of experience with the company, as well as the level of discretion the applicant exercises in their decision-making and the control they have over the goals and policies of the organization. Indications that an applicant is employed in a senior management or executive capacity include:
Functional Managers (i.e. managers who are in charge of an essential function of the company but who do not necessarily manage staff) may also qualify. An applicant in this role must demonstrate that he or she manages a function that is indispensable to achieving the organization’s goals, and must operate at a senior level within the organization.
The Executive/Senior Management category expressly excludes junior management positions such as a foreman or a shift supervisor.
In addition to negotiated international agreements, individuals can obtain a work permit directly from Citizenship and Immigration Canada without the need for an LMIA, based on the following public policy considerations:
The above categories are non-exhaustive and are only meant to provide a snapshot of the often complex Canadian work permit regime. When deciding on work permit options, many considerations come into play, such as the intended start dates and other time restrictions, amount of remuneration, duration of employment, number of intended foreign workers and long term plans. These and other factors are taken into account when determining a proper work permit strategy for an individual or corporation.2
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