Operational Bulletin 275-C - April 1, 2011

Temporary Foreign Worker Program—Operational Instructions for the Implementation of the Immigration and Refugee Protection Regulatory Amendments

Summary

The purpose of this Operational Bulletin (OB) is to provide operational instructions to Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) staff concerning amendments to the temporary foreign worker program within the Immigration and Refugee Protection Regulations (IRPR). The new Regulations come into effect April 1, 2011.

Table of Contents

1. Background

2. Instructions

3. WP Processing Instructions for LMO – Exempt Occupations

4. Live-in Caregiver Program (LCP)

5. System changes (Phase 1)

Annex A – Document List Tool

Annex B – Exceptions to Work Permit Refusals Based on Cumulative Duration

Annex C – Federal/Provincial Employment Information (HRSDC)

Annex D – Employer Declaration

Annex E – Job Offer


1. Background

On August 18, 2010, regulatory changes in regard to the Temporary Foreign Worker Program (TFWP) were published and will come into force April 1, 2011. Highlights of these changes that impact CIC, Human Resources and Skills Development Canada (HRSDC), Service Canada (SC) and CBSA are

  • A more rigorous assessment of the genuineness of the job offer;
  • A two-year ineligibility for employers who fail to meet their commitments to workers with respect to wages, working conditions and occupation;
  • A limit on the length of time a TFW may work in Canada.

Most Canadian employers are compliant with federal and provincial laws relating to the employment and recruitment of workers. Under the new regulations, an officer has the ability to deny work permits to TFWs where the employers have proven by their actions that they do not offer a safe and healthy work environment free from exploitation. These regulatory changes will improve the integrity of the TFWP by providing additional authorities to HRSDC/SC, CIC and CBSA officers that will help better protect foreign nationals working in Canada by ensuring employers adhere to the terms of their offers of employment.

1.1 Role of Human Resources and Skills Development Canada/Service Canada (HRSDC/SC)

An employer who wants to hire foreign nationals in occupations requiring a Labour Market Opinion (LMO) must apply to Service Canada for an opinion about a number of new factors in addition to those associated with labour market impact.

HRSDC/SC will issue their opinion in relation to the job offer to the employer, who can then advise the foreign national of the decision. If the opinion is positive, the foreign national must apply to CIC or CBSA for their work permit within the six-month validity period of the opinion.

As of April 1, 2011, HRSDC/SC, in providing their opinion, will assess the genuineness of the job offer, the consistency with the terms of applicable federal-provincial/territorial agreements and the employer’s past history of compliance with the items stated in previous job offers to foreign nationals.

HRSDC/SC processes and systems will continue to be enhanced in order to meet the objective of capturing more employer data, and sharing this information with CIC and CBSA.

1.2 Role of Citizenship and Immigration Canada (CIC)

Most foreign nationals who want to work in Canada require a work permit. Following receipt of an application for a work permit, and, if required, a copy of the letter confirming that an employer received a positive opinion from HRSDC, CIC determines whether the foreign national is eligible to receive a work permit.

As of April 1, 2011, CIC officers must also assess the genuineness of the job offer, consistency with federal-provincial/territorial agreements and compliance of employers with commitments to their foreign national workers for work permits applications that are employer-specific (associated with a job offer).

CIC processes and systems will continue to be enhanced after April 1 in order to capture more employer data, to provide the ability for CIC and CBSA officers to search for particular employers, and to share this information with HRSDC/SC.

1.3 Role of Canada Border Service Agency (CBSA)

The CBSA screens foreign nationals at Canadian ports of entry to ensure that they meet admissibility requirements before issuing work permits and allowing them to enter Canada.

Upon implementation of the new TFW Regulatory amendments, Border Service Officers (BSOs), in enforcing IRPA, have the additional authority to refuse issuance of work permits, where justified, due to non-genuineness of the job offer, inconsistency with federal-provincial/territorial agreements, or the failure to establish an employer’s past compliance with commitments to their workers. For LMO-required cases, these decisions will be supported by opinions provided by HRSDC. For LMO-exempt work permit applications for foreign nationals requiring visas, these decisions will be supported by the assessments done by visa offices abroad. At the port of entry, CBSA officers make the final decision on a foreign national’s admissibility, including eligibility for a work permit under the TFWP.

1.4 Foreign workers destined to Quebec

For foreign nationals destined to work in the province of Quebec, LMO requests and their associated work permit applications are also assessed by the Ministère de l’Immigration, de la Diversité et de l’Inclusion du Québec (MIDI) to determine if a Canadian Citizen or Permanent Resident is available for the job otherwise offered to the foreign national. The province of Quebec must give its approval through the issuance of a Certificat d’acceptation du Québec (CAQ) for every LMO required work permit application submitted by an employer as per Section 22 of the Canada-Quebec Immigration Agreement. In Quebec, HRSDC/SC and MIDI will jointly verify the genuineness and terms of the job offer and the terms of the Quebec job offers.

1.5 Employer information

The capturing of detailed employer information associated with work permit applications, and being able to build and maintain a database whereby officers can search for the history of each employer who has participated in the TFWP, is a fundamental change for CIC. This change will be implemented in phases throughout the coming years.

As of April 1, 2011, CIC and CBSA officers will have the ability to refuse a work permit as a result of a negative assessment in relation to a particular employer, and new system refusal codes will allow the capture and reporting of this event. HRSDC officers will also have the ability to do an enhanced review of the employer as the result of an application for an opinion. Officers should record information regarding the employer assessment portion of the work permit or opinion process in the system notes. The ability to search for a particular employer and view their history of assessments, in order to facilitate the processing of a current work permit application, is a feature to be implemented in the near-future.

CIC, CBSA and HRSDC will be able to share information under Information-Sharing Memorandums of Understanding (MOUs), and will strive for automation of this information sharing in the future.

Once information-sharing MOUs between CIC and the provinces and territories (Ps/Ts) are in place, it is expected that Ps/Ts will provide CIC with information regarding employers who have not complied with provincial/territorial legislation concerning labour or health and safety where it is relevant to the integrity of the TFW program in Canada. Guidelines on how or when officers may use this information, as well as how long CIC may retain it will be outlined as these MOUs are signed.

Authority and Legislation

The following are descriptions and IRPR references for the new TFW Regulatory changes. A more detailed description will be provided under the section titled “Instructions.

1.6 Genuineness

For all applications involving opinion requests processed by HRSDC/SC, and for all LMO-exempt WP applications processed by CIC that are connected with a specific employer, officers must make a determination of whether the offer of employment is genuine. Open work permits are not subject to employer assessment.

  • LMO required: R200(1)(c)(iii) & R200(1)(a);
  • HRSDC/SC opinion: R203(1)(a);
  • LMO exempt: R200(1)(c)(ii.1)(A);
  • Four factors on which to assess genuineness: R200(5);
    1. Job offer made by an employer who is ‘actively engaged’ in the business;
    2. Job offer is consistent with the reasonable employment needs of the employer;
    3. Employer is reasonably able to fulfill terms of the job offer;
    4. Employer or their authorized recruiter has shown past compliance with federal/provincial/territorial laws that regulate employment or recruitment in the province where the foreign national (FN) will be working.

1.7 Substantially the Same (STS)

Substantially the Same (STS) – An assessment of whether, during the period beginning two years prior to receipt of the opinion request by HRSDC/SC or the work permit (in LMO-exempt applications) employers have provided to foreign workers that they have employed, wages, working conditions and employment in an occupation that were substantially the same as those items set out in the employer’s offer of employment to those FNs.

  • LMO required: R203(1)
    • HRSDC/SC opinion on STS: R203 (1) (e) & R203 (2.1)
  • LMO-exempt: R200(1)(c)(ii.1)(B)
  • Reasonable justification: R203(1.1)
    • A change in federal/provincial law or change to a collective agreement;
    • Changes employer had to make in the workplace in response to a dramatic change in economic conditions that were not directed disproportionately at foreign workers;
    • Good faith employer error in interpreting obligations, wages, working conditions or occupation, and employer has provided or made sufficient efforts to provide compensation to any foreign nationals that have suffered a disadvantage;
    • Administrative accounting error by employer, and employer has provided or made sufficient efforts to provide compensation to any foreign nationals that have suffered a disadvantage;
    • Circumstances similar to those set out in the above criteria.
  • If a determination is made that the employer failed to meet their commitments and the failure is not assessed as justified, the employer will be ineligible to access the TFWP for a period of two years: R203(5) and (6).

R200(3)(h) and R183(1)(b.1): FNs cannot enter into an employment agreement, or extend the term of an existing employment agreement with an ineligible employer (R203(6)) – including for open work permits – without risk of losing status R183(1)(b.1).

Note: FNs can view a list of ineligible employers on the CIC TFWP Employer Ineligibility website at www.cic.gc.ca/english/work/list.asp.

Consistency with the terms of any Federal-Provincial/Territorial Agreement:

An assessment of whether the issuance of the work permit is consistent with terms of any federal-provincial/territorial agreement relating to employers or the employment of the FN»s as the case may be.

  • LMO exempt: R200(3)(f)
  • LMO required and HRSDC/SC assessment: R203(1)(c).

1.8 Cumulative Duration

This regulation establishes a maximum cumulative duration for the period that a TFW can work in Canada. The policy objective of this provision is primarily to prevent situations in which TFWs remain in Canada for such a prolonged period that they begin to lose ties with their country of origin without gaining permanent residence in Canada. This situation is more likely to apply to TFWs working in lower-skilled occupations. The Regulations also allow for certain exceptions to a work permit refusal based on having reached the four-year maximum. These are outlined below.

The four year limit will only be counted starting from April 1, 2011. In essence, all TFWs will start with a “clean slate” on April 1, 2011 in that work performed by a TFW prior to that date will not be counted towards the four year cumulative period.

All work in Canada counts towards the four year total whether or not it is authorized by a work permit, except for work that is performed by a FN during a period in which they were authorized to study on a full time basis in Canada R200 (4). Once a foreign national has accumulated 4 years of work, this regulation authorizes an officer to refuse to issue the foreign national another work permit. However, if the foreign national is seeking to enter Canada to do work that does not require a work permit, or that is among the exceptions to a work permit refusal based on cumulative duration, there is no basis to refuse entry. For example, a work permit issued pursuant to R186.

Four years maximum: R200(3)(g)

Exceptions:

  • R200(3)(g)(i): A period of 48 months has elapsed since the day on which the foreign national accumulated 4 years of work in Canada.
  • R200(3)(g)(ii): the foreign national intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens/PRs
  • R200(3)(g)(iii): the foreign national intends to perform work pursuant to an international agreement between Canada and one or more countries, including an agreement concerning seasonal agricultural workers.

Note: See Annex B for detailed information on exceptions to work permit refusals for the purpose of cumulative duration

1.9 Live-In Caregiver Program (LCP)

HRSDC/SC will consider three additional factors in providing their opinion relating to an LCP application, then indicate its findings in its opinion to CIC/CBSA and the employer. CIC and CBSA officers must review and consider this opinion in making their determination to issue a WP under the LCP.

  • R203(1)(d)(i): The FN will reside in a private household in Canada and provide childcare, senior home support care or care of a disabled person in that household without supervision;
  • R203(1)(d)(ii): The employer must demonstrate that they have the adequate accommodations in order to be able to provide adequate furnished and private accommodations in the household;
  • R203(1)(d)(iii): The employer must demonstrate that he/she has sufficient financial resources to pay the FN the wages offered.
  • R200(1): […] an officer shall issue a WP to a FN if they are satisfied that:
  • (c)(iii): The FN has been offered employment and an officer has made a positive determination under paragraphs 203(1)(a) to (e).

2. Instructions

2.1 Overview

Although CIC and CBSA officers currently conduct an assessment of the genuineness of the job offer, the new TFW regulations provide CIC, CBSA and HRSDC/SC with the authority to evaluate the job offers and the employers to a greater extent and require extra diligence in recording details of the job offers so that an accurate history of employer assessments can be maintained for future application issuance decisions.

Creation of standardized tools, and development of system enhancements will help officers assess the genuineness of the job offers and the employers’ record within the TFWP.

2.2 Employer Ineligibility List

Before beginning to assess an LMO-exempt work permit application/request, CIC and CBSA officers must verify that the employer named in the offer of employment is eligible to participate in the TFWP.

Under the new TFW Regulations, an employer can be found to be ineligible to participate in the TFWP for a period of two years if it is determined that they have failed, without reasonable justification, to provide substantially the same wages, working conditions or employment in an occupation to any foreign national who has worked for them during the prescribed period. The prescribed period begins two years from the date that the request for an opinion or the application for the work permit was received.

In general, a negative STS decision is intended to make an employer ineligible in situations where it has been determined that there has been a difference in wages, working conditions or the occupation from an original job offer made by that employer to foreign nationals and for which there is no reasonable justification.

Since a negative STS determination makes an employer ineligible to hire TFWs for a period of two years, and this information will be made public on the CIC website, it is important that officers assess cases of possible negative STS carefully, and take into account the significance of the differences in wages, working conditions or occupation. More specifically, a negative STS assessment should reflect situations where the differences relating to wages, working conditions or occupation that were provided to a foreign national as compared to those in the job offer are considered detrimental or disadvantageous to the foreign national and/or would compromise program integrity.

Depending upon the circumstance, STS compliance is assessed by HRSDC, CIC or CBSA. If there is a negative STS assessment by HRSDC, the information is forwarded to CIC for review and decision concerning adding the employer to the Ineligibility List should an application for a work permit be submitted.

2.3 Genuineness and STS

A negative assessment of the genuineness of the job offer can result in work permit refusal. A negative assessment of the STS requirement can result in a work permit refusal as well as the employer’s ineligibility to access the TFWP for a period of two years.

Under R183 (1)(b.1), a foreign national may not accept a job offer to work for an employer who is named on the ineligibility list and remain in legal status in Canada. This applies to new contracts and extensions of existing contracts. A foreign national may, however, continue to work for an employer who has been found ineligible until the end of the contract term if the ineligibility determination occurs subsequent to the start of employment, provided they have authorization to work. If one of these existing employees departs Canada and then reenters Canada on the same work permit to continue working for the same employer under the same contract or agreement, they are not in breach of any conditions or otherwise inadmissible.

LMO-required occupations – HRSDC/SC Genuineness Assessment – For LMO-required applications and extensions, including for the LCP and SAWP programs, HRSDC/SC will assess the employer’s past record and the genuineness of the job offer and will provide details of this to CIC/CBSA through the system interface. HRSDC will use information provided in the employer application, and as required will verify information. Officers can continue to view details of the HRSDC/SC opinion using existing system functionality. Reports of negative genuineness and STS assessments will be sent from HRSDC to NHQ and, until an employer database can be developed in GCMS, will be manually shared with officers.

As per R203(1), HRSDC/SC will also assess the following applicable sections when providing their opinion:

  1. Genuineness – 4 elements as per [R200(5)]:
  2. Labour Market Impact – 6 elements as per [R203(1)(b)]:
  3. Consistency with the terms of any federal-provincial/territorial agreement where this applies to the employers of foreign nationals as per [R203(1)(c)];
  4. Live-In Caregiver Program (LCP) – 3 elements as per [R203(1)(d)];
  5. Substantially the Same (STS) – 3 elements as per [R203(1)(e)].

A negative assessment of the job offer/employer will result in a negative opinion from HRSDC, and could result in refusal of the associated work permit application. Where the refusal is based on a negative STS determination, it could also lead to placement of the employer on the ineligibility website. This relieves HRSDC from the obligation to provide any opinion to such an employer for 2 years. Nonetheless, this does not prohibit an LMO-exempt work permit application, where that employer is identified in the job offer, from being received by CIC or CBSA. Future system enhancements will allow CIC or CBSA officers to view past HRSDC/SC, CIC and CBSA assessments of employers (matched by a common Employer ID).

See Section 4 for instructions specific to LCP.

LMO-exempt, employer-specific occupations – CIC and CBSA Genuineness assessmentCIC officers at a mission overseas (LMO-exempt/visa-required), BSOs at a port of entry (LMO-exempt/visa-exempt), and officers at CPC-Vegreville, who assess LMO exempt, employer specific applications, will record the decision clearly in system notes.

The four factors of employer genuineness shall be assessed:

  • Job offer was made by an employer who is ‘actively engaged’ in the business.
  • Job offer is consistent with the reasonable employment needs of the employer.
  • Employer is reasonably able to fulfill the terms of the job offer.
  • Employer or their authorized recruiter has shown past compliance with federal/provincial/territorial laws that regulate employment or recruitment in the province where the foreign national will be working.

As well as the STS assessment:

  • Over the past two years, the employer, if he/she has hired TFWs in the past, provided substantially the same wages, working conditions and employment in an occupation as those items set out in the offer of employment to the FN.

For the STS assessment, until CIC and CBSA have the ability to search an employer database for information on an employer’s past history of employing TFWs and the related job offers, the STS assessments will consist mainly of checking the TFWP Employer Ineligibility website and the list of employers who have a negative opinion based on an STS assessment done by HRSDC/SC. It is expected to be rare at the outset of the coming into force of these new regulations, that a comprehensive STS assessment involving verification of proof of wages documents, or of complaints related to working conditions, will be done unless information indicating non-compliance with past offers on the part of the employer becomes available to the officer during the work permit processing for the foreign national, and the officer submits a request for a more rigorous STS assessment to be conducted.

Comprehensive (full) STS Assessment – Processes and instructions will be provided in a separate OB. On April 1st, NHQ-OMC-TRPD will review any requests for full STS assessments.

2.4 LCP

In addition to the new requirements associated with genuineness, STS, and consistency with federal-provincial/territorial agreements, failure to meet one or more of the 3 new LCP factors can also result in a negative opinion or a refusal to issue the work permit to an LCP applicant.

Following are the three new LCP-specific factors assessed by HRSDC/SC as part of their opinion processing:

  • The foreign national will reside in a private household in Canada and provide childcare, senior home support care or care of a disabled person in that household without supervision.
  • The employer will provide adequate furnished and private accommodations in the household.
  • The employer has sufficient financial resources to pay the caregiver the wages offered.

In addition to assessing the three factors noted above, HRSDC/SC will review the proposed employment contract signed by the employer and prospective caregiver to ensure the terms of the contract meet LCP requirements. In assessing the prospective caregiver’s LCP work permit application, visa officers are also to review the contract that has been signed by the employer and caregiver, to ensure that the terms of the contract meet LCP requirements. The signed employment contract provided in support of the prospective caregiver’s work permit application should be consistent with the employment contract provided to HRSDC/SC by the employer in support of their LMO application. However, it may be necessary for the employer and prospective caregiver to renegotiate some aspects of the employment contract. If the contract is revised after being approved by HRSDC/SC as part of the employer’s LMO application, any changes to the contract must be clearly identified and explained in the version provided to the visa office as part of the prospective caregiver’s work permit application. Any revised employment contract must bear the signatures of both the employer and prospective caregiver. If the revised contract has hand written changes, the original wording must remain legible, be struck out and the signatures of both parties must appear next to any change, indicating mutual agreement. For further information on assessing employment contracts against LCP requirements, refer to the OP 14 – Processing Applicants for the Live-in Caregiver Program chapter.

Visa officers should also assess the genuineness of the job offer and LCP-specific factors, and must satisfy themselves that all LCP requirements are met in making a determination to issue a work permit under the LCP. Officers should avoid duplicating the upfront assessment of employer genuineness and LCP-specific factors undertaken by HRSDC/SC and should generally base their decision on HRSDC’s assessment. However, as a general guideline, officers are encouraged to re-assess these factors if they have reasonable grounds to consider that these elements are not being met or there may be a question as to whether these elements continue to be met. For instance, visa officers may decide to re-assess and confirm the employer’s financial capacity to honour the terms of the employment contract if a significant amount of time has elapsed since HRSDC/SC’s initial assessment at the time the work permit application is being assessed at the visa office. Similarly, re-assessment of the LCP-specific factors may be warranted as the result of information obtained through an interview of the prospective caregiver in the course of processing the work permit application (e.g. the caregiver’s understanding of the job duties, working conditions, wages, etc. are inconsistent with the information in the contract).

The level of assessment to be done by a CBSA BSO or an officer at CPC also depends on the extent to which they are satisfied by previous assessments of the three LCP-specific factors done by HRSDC/SC and/or the visa office. POE and inland officers need to be aware of the new changes, but will generally continue status quo processing of live-in caregivers. Only if during the POE exam, or during assessment of a LCP work permit application at CPC, evidence suggests these elements are not being met, would a CBSA BSO or CPC officer likely consider it necessary to further explore and re-assess these LCP-specific provisions.

LCP & STS:

For the LCP, HRSDC is responsible for conducting the STS assessment in order to provide an opinion as to whether, over the past two years, employers who are applying for an LCP opinion and who have hired TFWs in the past provided the wages, working conditions and employment in an occupation that were substantially the same as those items set out in the offer of employment to the foreign national.

2.5 Consistency with Federal-Provincial/Territorial Agreements

Using the authority found in R204(c), CIC and PTs have developed Annexes that deal with the entry of temporary foreign workers to respond to Provincial/Territorial labour needs. The Annexes support federal-provincial/territorial cooperation through various means, including some provincial/territorial directed LMO exemptions, and pilot projects.

HRSDC/SC will assess the employer for all LMO-required job offers, which will include ensuring consistency with the terms of any federal-provincial/territorial TFW Annex agreement in place that apply to the employers of foreign nationals. Employers will be advised if the job for which they are seeking to hire a FN falls under a pilot program under a federal-provincial/territorial agreement where they would be exempt from the requirement to obtain an LMO. HRSDC/SC will also advise employers of any applicable obligations under a federal-provincial/territorial agreement, for example, where a Workplace and Orientation Plan for TFWs is required.

CIC and CBSA officers will verify that the foreign national meets the eligibility requirements outlined under these pilots or programs. Failure to meet these criteria can result in a work permit refusal.

For a list of current pilots under these Annexes, refer to section 5.27 of the FW 1 manual.

As per TFW Annexes currently in place, a province can allow an employer to select FNs to work temporarily in their province outside of the Provincial Nominee Program. If information becomes available to an officer subsequent to the province’s verification that leads the officer to question the genuineness of the employment offer, or suggests the employer has not met the STS test the officer may refuse the issuance of the WP based on the genuineness or STS factors of the new TFW regulations. The officer may also refuse the work permit application for any other breach of the applicable Regulations.

A letter from CIC-NHQ to the Province and Territories outlining their responsibilities under R204(c) and a template of a letter to provide to the FN to attach to their WP application will be sent to each province. This letter contains information about the employer, details of the job, salary and duties as well as identification of the selected TFWs and information on their expected arrival to Canada. This instruction refers specifically to instances where the FN is named.

2.6 Cumulative Duration

The accumulation of time worked, per this regulation, begins April 1st, 2011. This means that refusals of work permits as a result of this prohibition will potentially begin April 1st, 2015.

WebPages (worker and employer) and Letters of Introduction to TFWs will be updated to notify workers that as of April 1st, they have to begin to keep track of their time worked in Canada.

WPs may be issued prior to 2015 for a shorter duration than requested by the employer in cases where the foreign national will soon reach the maximum time worked in Canada. Additionally, WPs may be refused if the foreign national is close to reaching their maximum time worked and the officer is not satisfied that the foreign national will return home if a WP were to be issued for a short duration, i.e. one month.

All work in Canada counts towards the four year total, including work done while under implied status, unless the work was performed during a period in which the FN was authorized to study full time in Canada. Once a foreign national has accumulated 4 years of work (Definition R2), this regulation authorizes an officer to refuse to issue the foreign national another work permit. However, if the foreign national is seeking to enter Canada to do work that does not require a work permit (i.e. R186) there is no basis to refuse entry. Similarly, if a foreign national is intending to work in an occupation that is included in the exceptions to work permit refusals based on cumulative duration (see below), the WP would not be refused on this basis.

In applying sub-paragraph 200(3)(g)(i), a TFW who spends four consecutive years either a) outside of Canada, or b) in Canada but provides evidence of not working, can start accumulating another four years of work.

Exceptions

  • FN’s seeking to work in managerial (NOC O) and professional (NOC A) occupations;
  • FN seeking to work in Canada who fall under one of the exceptions in Annex B;
  • With regard to spouses and dependants of TFWs who are LMO-exempt, only spouses and dependents of TFWs in managerial (NOC 0) and professional (NOC A) occupations would not be refused a work permit based on the cumulative duration provisions;
  • Permanent Residence Applicants: Foreign nationals who have applied for permanent residence (PR) and who have received a positive assessment in the PR category for which they have applied as follows:
    • a Certificat de sélection du Québec (CSQ) if applying as a Quebec Skilled Worker;
    • a Provincial Nominee Program (PNP) certificate if applying as a provincial nominee;
    • an approval in principle letter if applying under the Live-in Caregiver Class;
    • a positive selection decision if applying under the Federal Skilled Worker Class;
    • a positive selection decision if applying under the Canadian Experience Class.

All other groups (i.e. workers in NOC B, C, and D level occupations) would be subject to the cumulative duration limit of four years.

Periods of work

With regard to the accounting of work periods for the purpose of cumulative duration, the approach envisioned is that the duration of the TFW’s work permit (viewed in FOSS) would generally indicate the actual period of work for the calculation of cumulative duration.

The calculation would take into account periods not actually worked, if the TFW can satisfy a CIC officer, using appropriate documentation, that there were breaks in work due to legitimate reasons (such as extended sick-leave, maternity leave, absence from Canada, etc.).

The FN is also expected to advise of any periods of work while not on a work permit (R186).

A TFW’s work permit will be deemed to equate with his/her period of employment, unless there is evidence of a gap that clearly should not be counted towards the 4-years’ cumulative duration pursuant to 200(3)(g). A TFW will be considered to be working during any period of employment for the purposes of the cumulative duration calculation, even while not on a WP, unless the work was performed when the foreign national was a full-time student.

Gaps in employment

In some cases a TFW will work in Canada for a period of time, leave the country or change status so as not to be working in Canada, then begin additional periods of work. These periods of work need to be added together to determine whether the TFW has attained the four years’ cumulative duration. (Future system change initiatives will provide a quick-view of the workers accumulated time worked, with ability to edit this figure when documents are presented proving less or more time worked than stated on the WP. If a TFW wants to demonstrate that some of his/her work permit was not used to work in Canada, the TFW will need to provide evidence to the officer that this was the case. A TFW’s work permit in combination with the evidence provided by the TFW as to actual periods not worked during the validity period of a WP or worked but not on a WP, where applicable, will be deemed to constitute the period of time worked in Canada.

Gaps in employment could include the following:

  • Periods of time spent outside of Canada;
  • Periods of medical leave spent in Canada, if this period is not covered by the employment contract/agreement;
  • Maternity/paternity leave spent in Canada.

Until system changes are in place to automatically track or edit time worked, officers can make note in the workers file of any instances where TFWs have provided proof of gaps in employment after April 1st, 2011.

Proof documents (not exhaustive)

  • Passport entry and exit stamps;
  • Official documents indicating that the employment started and/or ended on certain dates; for example, a Records of Employment submitted by employers to Service Canada or proof of receipt of severance pay;
  • Letter from a foreign educational institution stating that the TFW was attending their institution for a period of time during the work permit authorization;
  • Travel receipts including ticket and boarding passes demonstrating that the TFW was out of the country for a period of time during the work permit authorization, other than a period of paid leave (e.g. sick leave, vacation leave) from their employment; compare with information regarding period of employment to see whether leave was covered by contract terms;
  • Proof of receipt of maternity/parental benefits;
  • Letter from physician confirming TFW was on medical leave for a certain period of time; compare with information regarding period of employment to see whether leave was covered by contract terms;
  • In Alberta, if a FN did not complete the full duration of a work permit due to poor working conditions, a letter can be provided by the TFW Advisory Office;
  • For TFWs working under a Group of Employers (GOE) agreement, there may be short periods of no work between projects, and a letter from the GOE Administrator can be accepted.

Call Centre

  • The Call Centre may receive requests from TFWs about the cumulative duration regulation:
    • When does the count start?
    • What periods of work are excluded from the calculation?
    • What applications are included or exempt from the prohibition?
    • How can a TFW keep track of their time worked?
    • What proof can a TFW retain for any gaps in employment?
    • What is CIC’s current estimation of the TFWs time worked as per WP (employment authorizations) issued (view in FOSS).
    • What will happen when they seek to enter Canada at a port of entry, if they are close to reaching the maximum of four years?
  • Call Centre agents can estimate the FNs accumulated time worked by viewing the ‘EA’ or work permits issued in FOSS, but must also check for any EA changes following the EA issuance that would indicate that they didn’t work the full duration or that the period does not count (for example, worked while full-time student).

For example, Jan 1 EA issued for 1 year. Mar 1 status changed to Student. Then CD would only be 2 months. The student would not need to provide proof that they did not work provided they were authorized to study full-time as per sub-section 200(4).

  • Call Centre agents would need to find out if the TFW worked in Canada in any jobs that were exempt from requiring a WP and include that in the calculation. Agents may also need to inquire if the TFW worked under implied status, as this would also figure into the estimation.
  • If a work permit was issued prior to April 1st, 2011, only the time worked after April 1st will be counted.

WP applications and opinion requests will eventually be updated with an advisory warning to ensure that the 4-year maximum is not exceeded. WP application may also be modified to ask the TFW to confirm the number of months the TFW has been working in Canada since 2011. Enforcement of this regulation will occur near the year 2015, and officers will be able to request proof documents from the TFW if they have adverse information that contradicts the TFW’s declaration on the application form.

HRSDC/SC’s role

HRSDC/SC, when processing an opinion request, will not verify the accumulated time worked in Canada for any FNs named in the opinion. If the opinion is still valid, and the TFW named on the opinion has been refused a WP due to reaching the maximum time allowed to work in Canada, the employer can submit a request to HRSDC under the same system file number to select another TFW for the opinion.

Sample scenarios

Scenario 1

In 2011, TFW is issued a WP for 2 years. TFW returns home for 1 year. In 2015, TFW is issued a WP for 2 years. Time accumulated in Canada is now 4 years. TFW cannot work in Canada for a period of 4 years before clock resets.

Scenario 2

TFW has 3 months remaining in accumulated time worked in Canada. TFW has a job offer for a duration of 1 year. The officer may refuse the WP unless h/she is satisfied that the TFW intends to stay temporarily and will respect the validity period of his/her work permit. Letter (2015) to state “we are refusing your request for a WP because we do not believe you will leave Canada by the end of the period authorized for your stay….”

3. WP Processing Instructions for LMO – Exempt Occupations

Instruction for Labour Market Opinion

Note: For LMO-required job offers, HRSDC/SC will have already assessed employer STS and genuineness, consistency of the job offer with FPT laws and labour market impact, so if the officer is satisfied with the opinion, he/she can continue with processing the work permit and the assessment of the worker. In a case where an LMO is not required, CIC/CBSA officers are required to assess employers and the job offer against the applicable criteria.

When future initiatives are implemented that enable a database search of employer information, officers will be able to view and consider information related to past genuineness assessments done by HRSDC/SC, CIC and CBSA, as well as general information or complaints received about the employer. Until this time, officers should use reasonable discretion when determining how detailed (or not) an employer assessment is required.

3.1 Verifying the eligibility of the employer for the TFWP

Officers must always check the CIC TFWP Employer Ineligibility website as the first step in processing the application.

  • If the employer is not listed on the website, the officer can continue with the processing.
  • If the employer is listed on the website, the officer will not continue with the process, but will refuse the work permit using the new system codes or refusal grounds developed for the new TFW Regulation changes and make appropriate note in the remarks, i.e. “Employer currently listed on Ineligibility list; work permit refused”.

3.2 Assessing the foreign national

The officer will assess the foreign national’s eligibility for the LMO exemption and/or any P/T pilot program, qualifications for the job and admissibility to Canada as per current processes.

Assessment of the cumulative duration regulation will not be required until closer to the year 2015 when TFWs working in occupations not exempt under the regulation may reach their maximum time worked in Canada.

3.3 Assessing the genuineness of the job offer

For work permit extension requests, the same genuineness factors apply. If the employment offer is found to be non-genuine under any one of the four genuineness factors, the officer is to refuse the WP.

3.3.1 R200(5)(a) – Job offer made by an employer who is “actively engaged” in the business

The assessment of this criterion is important to ensure that the offer of employment is coming from an employer that not only legally exists but can also demonstrate the ability to provide stable employment for the requested period. The employer must have an operating/functioning business, providing either a good or service and must have a work location in Canada where the TFW could work.

Assessing actively engaged:

Should an employer’s information raise concerns with respect to an employer’s active engagement in their business, or if the officer is aware that this employer is new to the TFWP, the officer may request the information listed in the Employer Declaration (Annex D) or consider an internet search and/or conducting a comprehensive assessment by requesting the employer’s T4 Summary of Remuneration paid and/or other relevant business documents. (See document list tool in Annex A).

If the employer is unknown to the officer, or is a start-up company, the officer may request the employer provide a copy of their business contract (for their work in Canada). Officers can also consider requesting an attestation by a lawyer, notary public or chartered accountant substantiating that they are actively engaged in the operation of their business in Canada.

The refusal of an employer to supply information to satisfy this assessment will result in a refusal to issue the work permit.

3.3.2 R200(5)(b) – The offer is consistent with the reasonable employment needs of the employer

Assessing reasonable employment need:

Officers must be satisfied that the offer of employment is reasonable in relation to the type of business the employer is engaged in.

Should the program officer have questions with regards to this genuineness factor, he/she could either write or call the employer requesting more information. The employer must be able to satisfactorily explain the role the TFW(s) will play in their business and that it is a reasonable employment need, both in terms of occupation and business-wise.

The refusal of an employer to supply information to satisfy this assessment will result in a refusal to issue the work permit.

3.3.3 R200(5)(c) – Whether the terms of the job offer are terms that the employer is reasonably able to fulfill

Assessing ability to fulfill the terms of the job offer

Whether the employer is a well-known frequent participant of the TFWP can be used to determine whether additional documentation will be required to render an opinion on this factor.

Note: Ability in the future to refer to an employer database will make it possible to include the employer’s past history of genuineness assessments, LMO revocations, and complaints, investigations and/or infractions related to the employer in these assessments.

If the employer is unknown to the officer, additional documentation could be requested, if not already provided, such as: (please note: this is not an exhaustive list).

  • T4 Summary of Remuneration paid – provides a summary of employment income paid out by the employer in a given year. The absolute amount of income paid (see line 14 of the T4 – Employment Income) will reveal the general size of the employer, which should give the officer an indication of whether that employer can easily absorb TFWs.
  • T2 schedule 100/125 (if employer is a corporation) – provides insight into the solvency of a business by providing information on operating income and the overall financial position/retained earnings of the business.
  • T2125/equivalent financial statement (if sole proprietorship or partnership) – is the most commonly used template to submit financial information to CRA. It provides information on the operating income (business income) of the employer (but not retained earnings – profits).
  • Workers’ compensation clearance letter – declares that the employer is registered with the appropriate workers’ compensation board and has an account in good standing.

Foreign employers may be requested to provide:

  • business contracts – are legally-binding written agreements between two or more parties that describes all obligations they are expected to fulfill, and sets parameters, such as a time frames, terms of a sale/lease, payment terms, risks and responsibilities of the parties. For the purposes of the program they substantiate the capacity for future earnings. Program officers should ensure that the business contract is at least as long as the job offer to the TFW and that the financial/payment terms are sufficient to pay the TFW (at least as much as the salary and benefits offered to the TFW, and that of any others pre-approved who have not commenced work) and to provide required coverage (e.g. interim health insurance), or
  • business documents similar to those requested for business visitors, entrepreneurs or other business category applicants in the host country.

If the officer is otherwise satisfied with the assessment, but media sources reveal information that would lead the officer to doubt the employer’s ability to fulfill the terms of the job offer; or if the employer is, or has been, the subject of a serious complaint, infraction or investigation, the officer should contact OMC.

The failure of an employer to satisfy this assessment will result in a refusal to issue the work permit.

3.3.4 R200(5)(d) – Compliance (current and past) with federal or provincial laws regulating employment and recruitment

For the purpose of this assessment, federal and provincial laws are defined as laws related to the regulation of ERs, employer consultants and/or recruiters, as well as the employment of TFWs, Canadians and Permanent Residents. Violations by ERs and/or third parties reported by federal and/or provincial government department or ministries via signed information-sharing MOUs could be considered whether the violations involved Canadians, Permanent Residents or TFWs.

While many provinces and territories maintain websites listing employers who have violated their legislation, these jurisdictions have told us that these convictions do not, in and of themselves, indicate that the employer does not offer a workplace suitable for workers, including TFWs. CIC is working with provinces and territories to establish a process by which we can determine which convictions should be a basis for a work permit refusal, but this work has not yet been completed. In the meantime, officers can and should consider information they might have regarding employer non-compliance with federal or provincial laws, but additional inquiries would be required to support a refusal on the basis of R200(5)(d).

Provincial TFW/Recruiter Related Legislation:

If a recruiter, who is working for the employer, is not licensed in a province that requires by law, that TFW recruiters/employment agencies must be licensed (i.e. Manitoba’s Worker Recruitment and Protection Act (WRAPA) and Alberta’s Fair Trade Act), by the province, a WP can be refused.

Recruitment Fees – If, during the processing of a WP application, it becomes known that the TFW paid recruitment fees, contrary to provincial legislation (i.e. Alberta and Manitoba) this would NOT necessarily result in a WP refusal under R200(5)(d) since the employer or recruiter may not yet have been found guilty by the province. Details should be forwarded to OMC for transmission to the province for investigation. It is important to note that under the requirements of the Low Skilled Pilot and the LCP, workers cannot be charged any recruitment fees (i.e. fees for finding the foreign national a job, not fees related to applying for a work permit). In these cases a work permit could be refused under another genuineness factor.

The refusal of an employer to supply information to satisfy this assessment can also result in a refusal to issue the work permit.

NOTE: Instructions on how to assess compliance with federal or municipal legislation will be provided in a future bulletin.

3.4 Assessing Substantially the Same (STS)

Since a negative STS determination makes an employer ineligible to hire TFWs for a period of two years, and this information will be made public on the CIC website, it is important that officers assess cases of possible negative STS carefully, and take into account the significance of the differences in wages, working conditions or occupation. More specifically, a negative STS assessment should reflect situations where the differences relating to wages, working conditions or occupation that were provided to a foreign national as compared to those in the job offer are considered detrimental or disadvantageous to the foreign national and/or would compromise program integrity.

Until an employer database can be established that would provide officers with information on employers so that assessments of compliance with STS in the last two years are possible, officers will rely primarily on information provided by HRSDC/SC of a negative opinion issued to an employer based on an STS assessment done by HRSDC/SC.

In order to be able to conduct more comprehensive STS assessments in the future, job offer or contract should be retained in the worker file. A list of information which should be in the job offer is provided in Annex E.

Assessing STS

If information is available to the officer that the employer has received a negative opinion based on an STS assessment done at HRSDC/SC, officers are to consult with OMC and must provide the employer with an opportunity to provide justification. OMC will verify the nature of the assessment done by HRSDC/SC and provide this to the officer. Based on this information, if the WP is to be refused the officer will use these WP codes/grounds.

Moreover, if the officer has concerns about the employer or information comes to light (perhaps a media story that an employer is being investigated for labour violations again TFWs) indicating that there could be grounds to make a negative STS determination, an officer should send this information to OMC which may result in:

  1. a decision to do a comprehensive STS assessment leading to a possible negative STS determination (and potential addition to the TFWP Employer Ineligibility website), or
  2. advise that current information is insufficient to warrant a comprehensive assessment at this time.

Other scenarios:

Scenario 1

A foreign national is issued a work permit (either before or after April 1st, 2011). During the validity period of the WP, the foreign national leaves Canada. Prior to the foreign national’s return to Canada, the employer named on the WP becomes ineligible to participate in the TFW Program under R203(3)(h) and now appears on the Temporary Foreign Worker Program – Employer Ineligibility website. The foreign national would not be considered inadmissible to enter Canada. Work done under a WP that was authorized while the employer was still in good standing can be performed to the end of the authorization period or the term of the existing employment contract. It is only the extension of that authorization that would be refused.

Scenario 2

If an opinion from HRSDC states that the employer meets all requirements, including STS, then, in between the issuance of the opinion and the processing of the WP application, or even after the WP application is received but before the decision is made, information regarding a failed genuineness or STS assessment is received from HRSDC/SC (via NHQ) based on a subsequent opinion request, an officer, could a) if only genuineness is negative, perform a more rigorous genuineness assessment of the job offer, or b) if STS was negative, ask OMC to obtain details for the STS assessment.

CPC – will assess the STS factor for applications for all LMO-exempt, employer-specific (associated with a job offer) WP extensions. In the future, CPC may play a stronger role in assessing STS, as applications for extensions would be a good opportunity to verify wages paid to the worker by the same employer during the previous contract.

4. Live-in Caregiver Program (LCP)

LCP opinion requests received on or after April 1, 2011 will be assessed by HRSDC/SC against the new LCP-specific assessment factors in accordance with the regulations which came into force on that date.

The new LCP-specific assessment factors noted below will not apply to LCP opinion requests received by HRSDC/SC prior to April 1, 2011.

The details of the HRSDC/SC opinion are recorded in the HRSDC Foreign Worker System (FWS) which is accessible to CIC officers through the FWS-FOSS and FWS-CAIPS/GCMS links.

4.1 R203(1)(d)(i) – The foreign national will reside in a private household in Canada and provide childcare, senior home support care or care of a disabled person in that household without supervision.

This factor will be assessed by HRSDC/SC in providing their opinion on an LCP related opinion request. It may be verified again by visa officers and CBSA if required.

4.1.1 Definitions

Under the LCP:

A child is defined as being a person 18 years of age or under.

A senior is defined as being a person 65 years of age or older.

A disabled person is a person who is physically or mentally impaired, or is lacking one or more physical or mental capacities, as per the attestation of a medical doctor.

In cases of applications for a live-in caregiver to provide childcare, officers must be satisfied that the employer-child relationship is bona fide, including in cases of a legal guardian or an adoption. The new TFW regulations provide HRSDC/SC and CIC/CBSA officers with the authority to request documentation such as birth certificates and/or official adoption documents to determine the bona fides.

Officers should focus on establishing “reasonable need” for live-in childcare on a full-time basis. For example, the child could be 17 years old, as long as the officer is satisfied that there is justification for the need to hire a live-in caregiver on a full-time basis. The officer may inquire as to what childcare arrangements were in place previously, and what has changed that would necessitate full-time live-in care.

In order to build employer history for the purpose of determining past compliance, visa officers MUST clearly note details of their employment contract review and provide a clear justification for the refusals of LCP work permit applications in the file narrative in the system of record.

4.2 R203(1)(d)(ii) – The employer will provide adequate furnished and private accommodations in the household.

This factor will be assessed by HRSDC/SC in providing their opinion on an LCP related opinion request. It can be verified again by visa officers and CBSA, if required.

The onus is on the employer to provide sufficient evidence and satisfy the officer that they will provide adequate accommodations for the live-in caregiver. Officers have the authority to refuse a work permit on the grounds of inadequate accommodations (see refusal grounds for GCMS in section 5).

Adequate accommodations under the LCP are generally considered to be a private, furnished, habitable room in the home in which the live-in care will take place. Such accommodations are used for living and sleeping purposes, and exclude bathrooms, toilet compartments, hallways, storage space or any other utility spaces.

Suitable accommodation is housing that meets municipal building requirements and health standards set by the province/territory. This includes a private, properly heated and ventilated unit or a room with a lock which provides living and sleeping facilities intended for human habitation with no visible or structural repairs required. The door of the room must be equipped with a lock and a safety bolt from within the room, and the live-in caregiver is to be provided with the corresponding key. The live-in caregiver must be provided with independent access (for example, house keys, security code) to the residence in which they will be providing care.

Accommodation provisions under the LCP must be above and beyond temporary accommodation arrangements. They must allow a live-in caregiver to comfortably and reasonably perform his/her duties for the duration of the job offer, and to live in accordance with generally accepted Canadian standards.

Officers should avoid duplicating the upfront assessment of adequate accommodations undertaken by HRSDC/SC. However, as a general guideline, officers are encouraged to re-assess this factor if they have reasonable grounds to consider that this element is not being met or there may be a question as to whether this element continues to be met. For instance, visa officers may decide to re-assess and confirm the employer’s ability to provide adequate accommodations if a significant amount of time has elapsed since HRSDC/SC’s initial assessment and the time the work permit application is being assessed at the visa office.

In order to re-assess the accommodations factor, officers may choose to ask that the employer furnish additional information such as confirmation of the number of family members in the household, proof of property ownership or rental agreement, proof of number of bedrooms, official floor plan, MLS property listing, building/renovation permit, written attestation of the employer, etc. Visa officers may choose to phone the employer to corroborate the information provided.

In order to build employer history for the purpose of determining past compliance, visa officers MUST clearly note details of their accommodations assessment and provide a clear justification for refusals of LCP work permit applications in the file narrative in the system of record.

4.3 R203(1)(d)(iii) – The employer has sufficient financial resources to pay the caregiver the wages offered.

This factor will be assessed by HRSDC/SC in providing their opinion on an LCP related opinion request. It can be verified again by visa officers and CBSA if required. The onus is on the employer to provide sufficient evidence and satisfy the officer that they have sufficient financial resources to pay the live-in caregiver the wages specified in the employment contract.

Officers should avoid duplicating the upfront assessment of sufficiency of financial resources undertaken by HRSDC/SC. However, as a general guideline, officers are encouraged to re-assess this factor if they have reasonable grounds to consider that this element is not being met or there may be a question as to whether this element continues to be met. For instance, visa officers may decide to re-assess and confirm the employer’s ability to pay the live-in caregiver the wages specified in the employment contract if a significant amount of time has elapsed since HRSDC/SC’s initial assessment and the time the work permit application is being assessed at the visa office. The employer’s circumstances may well have changed in this period of time, as could the prevailing minimum wage rates in the province/territory of destination.

In order to re-assess the financial capacity factor, officers may choose to ask that the employer furnish personal financial information such as CRA Notices of Assessment, T4 slips, CRA “Option C” Printout, bank statements, letters from employers, etc.

Note: In cases where an employer is self-employed, unemployed or on maternity or parental leave, visa officers should request additional documents as proof of employer financial capacity. Refer to Annex A for a list of suggested additional documents to request in such cases.

When assessing the employer’s financial resources, officers should consider the entire household salary, which shall include the salaries of occupants of the dwelling who are living together in marital or common-law relationships, excluding that of extended family members.

Sponsored relatives are and should be considered as part of the household (if living with the employer), since the employer has a commitment to them and, at least during the early months, is most likely the main source of financial support for any sponsored relatives.

A group of individuals, if all listed as the employers, may also be considered if they are joining together to hire a live-in caregiver for a senior or a person with a disability. Financial assistance provided by a province, intended to pay for care, would also be acceptable.

The Low Income Cut-Off (LICO) produced by Statistics Canada can be used by visa officers as a benchmark to determine the minimum income level required to hire a live-in caregiver. An employer’s annual income, including the deduction for a caregiver’s salary, should be above the up-to-date LICO.

Officers have the authority to refuse a work permit on the grounds of the employer’s inability to demonstrate that he/she is financially capable of providing stable and full-time employment for a caregiver for the full duration of the employment specified in the contract.

In order to build employer history for the purpose of determining past compliance, visa officers MUST clearly note details of their assessment of employer financial capacity and provide a clear justification for refusals of LCP work permit applications in the file narrative in the system of record.

5. System changes (Phase 1)

Minor system changes will be in place for April 1, 2011, to allow the capture and reporting of work permits that have been refused in relation to the TFW regulatory changes. It is important to make use of the refusal reason codes/grounds so that statistics can be gathered to inform senior management of the effectiveness of these new regulations. Future system changes will enable searches by employer and the electronic sharing of employer information and assessments between departments and provinces/territories.

Annex A – Document List Tool

R200(5)(a)
Whether the offer is made by an employer, other than an employer of a live-in caregiver, who is actively engaged in the business in respect of which the offer is made.

R200(5)(b)
Whether the offer is consistent with the reasonable employment needs of the employer?

R200(5)(c)
Whether the terms of the offer are terms that the employer is reasonably able to fulfill.

R203(1)(d)(i) (LCP only)
Will the FN reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in that household w/o supervision?

R203(1)(d)(ii) (LCP only)
Will the employer provide adequate furnished and private accommodations in the household?

R203(1)(d)(iii) (LCP only)
Does the employer have sufficient financial resources to pay the FN the wages offered the FN?

  Live in Caregiver only
Documents R200 (5)(a) R200 (5)(b) R200 (5)(c) R203 (1)(d)(i) R203 (1)(d)(ii) R203 (1)(d)(iii)
Contract/job offer or letter from employer on official company letterhead, describes job duties, duration and wage. *Can be provided by TFW X X   X X  
PD7A (Statement of Account for Current Source Deductions) X   X      
T4 Remittance Summary X   X     X
HR plan – future projections and resourcing X X X      
CRA:
T2125 (Statement of Business Activities)
X   X     X
(if self-employed)
T2032 (Statement of Professional Activities)
T2 – 100 Balance sheet information
T2 – 125 – Income Statement Information
Commercial rental/lease agreement; deed of property in case of new ownership X          
Provincial/
municipal business license
X         X
(if self-employed)
Business registration or legal incorporation documents/
BN #/WCB#
X   X     X
Letter from lawyer of existence of company X   X     X
(if self-employed)
Letter from Union X          
Company organization chart X X        
Employer’s property assessments X          
Employer’s annual reports/ brochures X         X
Service contracts with other companies, service providers or clients X X        
Letter from a licensed/certified accountant (CA, CGA or CMA) that the company has the financial capacity     X      
Public advertisements   X   X    
OPTION C printout (CRA) confirming name and marital status of that tax year           X
LMO       X X X
Google earth (view address)       X X  
Medical certificate or physician’s note that confirms health situation and clarify/describes the nature of the care requested (elderly/disabled)       X    
Long-form birth certificate (child); birth certificate for senior       X    
Adoption Certificate of child or proof of legal guardianship       X    
Written rationale for need for childcare – especially if school-aged       X    
Old Age Security Card if care is for senior       X    
Proof of rental agreement or property ownership – proof of # of bedrooms         X  
Official floor plan         X  
Building/Renovations Permit         X  
T1 Notice of Assessment (NOA)           X
*(T1 Tax Form is not acceptable)
Statement of Business Activities (if self-employed)           X
T4 slips + additional proof (alternative to NOA)           X
(Self-Employed or unemployed)           X
Bank statements – 3 months back
Proof of other sources of income
Statement/Certificate of Interest on Deposit           X
LICO (low-income cut-off) assessment – see StatsCan website for tool           X
*10% surplus or shortfall is acceptable
Pay stubs (12 months back)           X
(Maternity leave)           X
Proof of employment and copy of final pay stub + letter from employer confirming the continued employment agreement, anticipated return date and salary

Annex B – Exceptions to Work Permit Refusals Based on Cumulative Duration

International agreements (R204)

  • Canada-International
    • Non-Trade
    • Trader (FTA)
    • Investor (FTA)
    • Professional/Technician (FTA)
    • Intra-company transferee (FTA)
    • GATS Professional
  • Provincial-International

Canadian interests (R205)

  • Significant benefit
    • Entrepreneurs
    • Intra-company transferees (including GATS)
    • Emergency repairs
  • Reciprocal employment
    • Youth Exchange Programs
    • Exchange Professors, Visiting Lecturers
  • Designated by Minister
    • Research, educational or training programs
    • Competitiveness and public policy
      • Spouses of skilled workers
      • Spouses of students
      • Post-grad employment
      • Post-doctoral fellows and award recipients
      • Off-campus employment (Pilot)
    • Charitable or religious work

Self-support (R206)

  • Refugee claimants
  • Persons under an unenforceable removal order

Permanent Residence Applicants in Canada (R207)

  • Live-in-caregiver class
  • Spouse or common-law partner class
  • Protected persons under A95(2)
  • Section A25 exemption
  • Family members of the above

Humanitarian reasons (R208)

  • Destitute students
  • Holders of a TR Permit valid for a minimum of six months.

Annex C – Federal/Provincial Employment Information (HRSDC)

Federal
Employment Standard Minimum Standard
Minimum Wage The minimum wage rate applicable in regard to employees under federal jurisdiction is the general adult minimum rate of the province or territory where the employee is usually employed.
Standard Hours 8 in a day; 40 in a week.
48 in a week maximum
Periods of Rest 1 day per week
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime No
Averaging Agreements Yes
General and Public Holidays 9 public holiday days per year.
Holiday pay is regular rate of wages + 1½ times regular rate for time worked.
Must meet eligibility requirements.
Vacation 2 weeks; 3 weeks after 6 consecutive years of employment.
Vacation pay is 4% of annual wages; 6% after 6 years.
Unpaid Leave Maternity – 17 weeks
Parental – 37 weeks
Adoption – 37 weeks
Family Responsibility – N/A
Sick Leave – 12 weeks
Bereavement – 3 days
Compassionate Care – 8 weeks
Reservist – N/A

Alberta
Employment standard Minimum Standard
Minimum Wage $8.80 /hour effective 01-Apr-2009
Standard Hours 8 in a day; 44 in a week
12 consecutive hours in a day
Periods of Rest 8 hours between shifts
1 day per week
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime Yes, overtime hours to be ‘banked’ and later taken off with pay, hour for hour, during regular working hours. Overtime hours can be banked for a period of up to 3 months. ‘Banked’ time not taken within the 3 month period must be paid out at a rate of 1.5 times the employees hourly wage rate.
Averaging Agreements Yes.
General and Public Holidays 9 public holiday days per year.
Holiday pay is average daily wage + 1½ times regular rate for hours worked;
or regular rate for hours worked + paid day off
Must meet eligibility requirements.
Vacation 2 weeks; 3 weeks after 5 consecutive years of employment.
Vacation pay is 4% of annual wages; 6% after 6 years.
Some exemptions do apply.
Unpaid Leave Maternity – 15 weeks
Parental – 37 weeks
Adoption – 37 weeks
Family Responsibility – N/A
Sick Leave – N/A
Bereavement – N/A
Compassionate Care – N/A
Reservist – N/A
Record keeping Must be kept for a minimum 3 years from the date the record is made.
In addition to keeping an employees name, address and date of birth, every employer must keep a record of an employees regular wage rate, overtime hours, earnings for each pay period (statement), deductions, vacation pay and holiday pay.

British Columbia
Employment standard Minimum Standard
Minimum Wage $8.00/hour effective  01-Nov-2001
$8.75/hour effective  01-May-2011
$9.50/hour effective  01-Nov-2011
$10.25/hour effective  01-May-2012
Standard Hours 8 in a day; 40 in a week
Periods of Rest 8 consecutive hours between shifts
32 consecutive hours in a week
Overtime 1 ½ or 2 times reg. rate
Time off in Lieu of Overtime Yes, employers and employees may create their own written overtime agreements. This agreement allows overtime hours to be ‘banked’ and later taken off with pay for a mutually agreed upon period, hour for hour, during regular working hours rather than being paid out in the regular pay period in which the hours are earned. Upon an employees request the ‘bank’ may be closed and the employer must pay the outstanding balance to the employee.
Averaging Agreements Yes, to meet the need for flexibility in the workplace, the Employment Standards Act also allows employers and employees to enter into Averaging Agreements which permit hours of work to be averaged over a period of one, two, three or four weeks. In this case, employees may agree to work up to 12 hours in a day, averaging 40 hours a week, without being paid overtime.
General and Public Holidays 9 public holiday days per year.
Holiday pay is 1½ times regular wage for first 11 hours and 2 times regular wage for each additional hour as well as a paid day off.
Must meet eligibility requirements.
Vacation 2 weeks; 3 weeks after 5 consecutive years of employment
Vacation pay is 4% of total wages earned in the year of employment (if employee has completed at least 5 calendar days of employment); 6% after 5 consecutive years of employment.
Unpaid Leave Maternity – 17 weeks
Parental – 37 weeks
Adoption – 37 weeks
Family Responsibility – 5 days
Sick Leave – N/A
Bereavement – 3 days
Compassionate Care – 8 weeks
Reservist – N/A
Record keeping Must be kept for a minimum of 2 years after the employment terminates.
The employee’s name, date of birth, occupation, telephone number and residential address; the date employment began; the employee’s wage rate, whether paid hourly, on a salary basis or on a flat rate, piece rate, commission or other incentive basis; the hours worked by the employee on each day, regardless of whether the employee is paid on an hourly or other basis: the benefits paid to the employee by the employer; the employee’s gross and net wages for each pay period; each deduction made from the employee’s wages and the reason for it; ;the dates of the statutory holidays taken by the employee and the amounts paid by the employer; the dates of the annual vacation taken by the employee, the amounts paid by the employer and the days and amounts owing; and how much money the employee has taken from the employee’s time bank, how much remains, the amounts paid and dates taken.

Manitoba
Employment standard Minimum Standard
Minimum Wage $9.00/hour effective 01/Oct/2009
Standard Hours 8 in a day; 40 in a week
Periods of Rest 24 consecutive hours in a week
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime Yes, Employers and employees may create their own written overtime agreements which allow employees to ‘bank’ their overtime hours. In such a case, the employee is entitled to 1 ½ hours off work with regular pay during regular working hours. The ‘banked’ hours must be taken within 3 months of being earned. An employee may also request in writing that their employer close the ‘bank’ at which time the employer must pay the outstanding balance to the employee.
Averaging Agreements Yes, with a permit, the Manitoban Employment Standards Code allows employers to enter into Averaging Agreements which permit hours of work to be changed. Permits may be granted to qualified businesses but are not generally given to individual employees to accommodate ”flex-time”. Employers may apply to increase the daily hours in a 40-hour work week or to average the hours across a longer period. Under such an agreement an employee would only qualify for overtime pay if the average hour’s worked per week during the Averaging Agreement exceeded 40 hours.
General and Public Holidays 7 public holiday days per year.
Holiday pay is regular wages plus 1½ times regular rate for hours worked.
Vacation 2 weeks; 3 weeks after 5 consecutive years of employment.
Vacation pay is 2% of wages earned in the year of employment for each week of vacation.
Unpaid Leave Maternity – 17 weeks
Parental – 37 weeks
Adoption – 37 weeks
Family Responsibility – 3 days
Sick Leave – N/A
Bereavement – 3 days
Compassionate Care – 8 weeks
Reservist – N/A
Record keeping Must be Kept for a minimum of 3 years from the date the record is made.
Employers must keep records for all employees that show an employees name, address, date of birth and occupation; date the employee starts work; regular wage and overtime wage when employment starts, the dates of changes to the wage and the new wage; regular and overtime hours of work, recorded separately and daily; dates wages are paid and the amount paid on each date; deductions from wages, dates and reasons for each deduction; dates of time off taken instead of overtime wages; dates each general holiday is taken; dates and wages paid for hours worked or required to be worked on a general holiday; start dates of annual vacations, dates work resumes, period of employment in which it is earned, amount of vacation allowance paid and date paid; amount of outstanding vacation allowance paid upon termination, and payment date; copies of documents on maternity leave, parental leave, compassionate care leave or other leaves, including dates and number of days taken as leave; and dates of termination of the employment

New Brunswick
Employment standard Minimum Standard
Minimum Wage $ 8.50/hour effective 01/Apr/2010
$9.00/hour effective 01/Sept/2010
$9.50/hour effective 01/Apr/2011
$10.00/hour effective 01/Sept/2011
Standard Hours 44 in a week
Periods of Rest 24 consecutive hours in a week
Overtime 1 ½ times min. wage
Time off in Lieu of Overtime No time off may be taken in lieu of overtime.
Averaging Agreements No averaging agreements are permitted.
General and Public Holidays 6 public holiday days per year.
Holiday pay is regular wages plus 1½ times regular rate for hours worked.
Must meet eligibility requirements.
Vacation 2 weeks or 1 day per month worked during vacation pay year (whichever is less); 3 weeks or 1¼ days per month worked during vacation pay year (whichever is less) after 8 consecutive years of service.
Vacation pay is 4% of wages earned in the vacation pay year; 6% after 8 consecutive years of employment.
Unpaid Leave Maternity – 17 weeks
Parental – 37 weeks
Adoption – 37 weeks
Family Responsibility – 3 days
Sick Leave – 5 days
Bereavement – 5 days
Compassionate Care – 8 weeks
Reservist – 18 months
Record keeping Records must be kept for a minimum of 3 years from the date the record is made.

Employers are required to keep payroll records for each employee showing the employees name, address, date of birth and social insurance number; date the employment began; number of hours worked each day and each week; wage rate and gross earnings for each pay period; amount and reason for each deduction from gross earnings; other payment to which the employee is entitled, amount of any living allowance and the dates of payment; vacation dates, vacation pay due or paid, and the dates of payment; public holiday pay due or paid, and the dates of payment;  net amount of money paid; dates and reason the employee was on a leave of absence and any document or certificate relating to a leave of absence; and date of any dismissal, suspension or layoff, and the dates of the notices thereof.

Newfoundland & Labrador
Employment standard Minimum Standard
Minimum Wage $9.50/hour effective 01/Jan/2010
$10.00/hour effective 01/July/2010
Standard Hours 40 in a week
Maximum of 14 hour in a day.
Periods of Rest 8 consecutive hours in a 24-hour period.
24 consecutive hours in a week.
Overtime 1 ½ times min. wage
Time off in Lieu of Overtime Yes, employers and employees may create their own written overtime agreements which allow employees to ‘bank’ their overtime hours. In such a case, the employee is entitled to 1 ½ hours off work with regular pay during regular working hours. The ‘banked’ hours must be taken within 3 months of being earned. An employee may also request in writing that their employer close the ‘bank’ at which time the employer must pay the outstanding balance to the employee.
Averaging Agreements No averaging agreements are permitted
General and Public Holidays 5 public holiday days per year.
Holiday pay is regular wages plus normal wages, a paid day off within 30 days or
one additional day of vacation.
Vacation 2 weeks; 3 weeks after 15 years of continuous employment.
Vacation pay is 4% of total wages earned during 12-month period; 6% after 15 years of continuous employment.
Unpaid Leave Maternity – 17 weeks
Parental – 35 weeks
Adoption – 52 weeks
Family Responsibility – 1 week
Sick Leave – 7 days
Bereavement – 3 days
Compassionate Care – 8 weeks
Reservist – N/A
Record keeping Records must be kept for a minimum of4 years from the date of the last entry.
Every employer must keep payroll records for each employee showing an employees name, address and birth date of the employee; date of the start of the employment and the dates of a temporary lay-off or termination; rate of wages, number of hours worked in each day, the amount paid showing all deductions made from wages paid; the date of annual vacation and the amount of vacation pay paid; and the dates on which each 24 hour rest period is given.

Nova Scotia
Employment standard Minimum Standard
Minimum Wage $9.20/hour effective 01/Apr/2010
$9.65/hour effective 01/Oct/2010
Standard Hours 48 in a week
Periods of Rest 24 consecutive hours in a 7 day period
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime No, time off may not be taken in lieu of overtime.
Averaging Agreements Yes, to meet the need for flexibility in the workplace, the Nova Scotia Employment Standards Act allows employers and employees to enter into Averaging Agreements which permit hours of work to be averaged over a period of one, two, three or four weeks. Under such an agreement an employee would only qualify for overtime pay if the average hour’s worked per week during the Averaging Agreement exceeded 48 hours.
General and Public Holidays 5 public holiday days per year.
Holiday pay is regular pay plus 1½ times regular rate for time worked.
Must meet eligibility requirements.
Vacation 2 weeks; 3 weeks after 8 continuous years of employment.
Vacation pay is 4% of wages; 6% after 8 continuous years of employment.
Unpaid Leave Maternity – 17 weeks
Parental – 52 weeks
Adoption – 52 weeks
Family Responsibility – 3 days
Sick Leave – N/A
Bereavement – 3 days
Compassionate Care – 8 days
Reservist – N/A
Record keeping Must be kept for 1 year after the employment terminates. In the case of vacation pay, the employer must be able to show payroll records going back 28 months.
Employers must keep the following information for each employee, a list of the names of all employees, showing the employees’ age, sex, and last known home address; a record of the rates of wages, hours of work, vacation periods, leaves of absence, pay, and vacation pay each employee received; a record of the date each employee began work and, if the employee no longer works for that employer, the last day he was employed; a record of when employees were laid off or fired and the dates when those employees received notice of the end of their jobs; and a record of how much each employee has been paid.

Ontario
Employment standard Minimum Standard
Minimum Wage $10.25/hour effective 31/Mar/2010
Standard Hours 8 hours in a day; 44 in a week.
Maximum of 48 hours in a week.
Periods of Rest 8 hours between shifts.
11 consecutive hours in a day.
24 consecutive hours in a week or 48 consecutive hours in a 2-week period.
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime Yes, employers and employees may create their own written overtime agreement. This agreement allows overtime hours to be ‘banked’ and later taken off with pay, hour for hour, during regular working hours. Overtime hours are ‘banked’ instead of being paid-out in the regular pay period in which they are earned. An employee may also request time off with pay for some mutually agreed period or request in writing that the bank be closed at which time the employer must pay the outstanding balance to the employee.
Averaging Agreements Yes, to meet the need for flexibility in the workplace, the Ontario Employment Standards Act also allows employers and employees to enter into averaging agreements which permit hours of work to be averaged over a period of one, two, three or four weeks. Under such an agreement an employee would only qualify for overtime pay if the average hour’s worked per week during the averaging agreement exceeded 44 hours.
General and Public Holidays 8 public holiday days per year.
Holiday pay is the total amount of regular wages in 4 work weeks preceding week of holiday divided by 20 plus 1½ times regular rate for hours worked or
regular rate for hours worked plus a paid day off
Must meet eligibility requirements.
Vacation 2 weeks
Vacation pay is 4% of wages earned in the applicable period (normally a 12-month period).
Unpaid Leave Maternity – 17 weeks
Parental – 37 weeks
Adoption – 37 weeks
Compassionate Care – 8 weeks
Reservist – N/A
Personal emergency leave: 10 days/year (combined) for personal medical reasons, the death, illness or injury of a child, spouse, same-sex partner, parent, grandparent, grandchild, or sibling, or an “urgent matter” involving any of these relatives
Record keeping Records must be kept for a minimum of 3 years after the employment terminates.
Every employer must keep payroll records for each employee showing an employees name, address and starting date of employment; hours worked by the employee each day and week; written agreements to work excess hours or average overtime pay; vacation time records; vacation pay records; information contained in an employee’s wage statement; and documents relating to an employee’s pregnancy, parental, family medical, organ donor, personal emergency, declared emergency, or reservist leave.

Prince Edward Island
Employment standard Minimum Standard
Minimum Wage $8.40/hour effective 01/Oct/2010
Standard Hours 48 in a week
Periods of Rest 24 consecutive hours in a 7-day period
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime No, time off may not be taken in lieu of overtime.
Averaging Agreements No, averaging agreements are not permitted.
General and Public Holidays 7 public holiday days per year.
Holiday pay is one day’s pay plus 1½ times regular rate for time worked or
regular rate for time worked plus a paid day off
Must meet eligibility requirements.
Vacation 2 weeks
Vacation pay is 4% of wages.
Unpaid Leave Maternity – 17
Parental – 35 weeks
Adoption – 52 weeks
Family Responsibility – 3 days
Sick Leave – N/A
Bereavement – 3 days
Compassionate Care – 8 weeks
Reservist – N/A
Record keeping Must be kept for a minimum of 3 years from the date the record is made.
Every employer must keep payroll records for each employee showing an employees name and address and Social Insurance Number; date of birth; wage rate and actual earnings; number of hours worked in each day and week; gross earnings per pay period; deductions from gross earnings and nature of each deduction; starting date of employment and date of termination; type of work performed by the employee; period in which employee received vacation with pay; and amount of vacation pay paid to the employee in lieu of vacation.

Quebec
Employment standard Minimum Standard
Minimum Wage $9.00/hour effective 01/May/2009
$9.50/hour effective 01/May/2010
Standard Hours 40 in a week
Periods of Rest 32 consecutive hours in a week
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime Yes, employers and employees may create their own written overtime agreements which allow employees to ‘bank’ their overtime hours. In such a case, the employee is entitled to 1 ½ hours off work with regular pay during regular working hours. The ‘banked’ hours must be taken within 3 months of being earned. An employee may also request in writing that their employer close the ‘bank’ at which time the employer must pay the outstanding balance to the employee.
Averaging Agreements Yes, to meet the need for flexibility in the workplace employers and employees may enter into Averaging Agreements which permit hours of work to be averaged over a period of one, two, three or four weeks.
General and Public Holidays 8 public holiday days per year.
Holiday pay is wages for work done, plus an average daily wages or a paid day off.
Must meet eligibility requirements.
Vacation 2 weeks; 3 weeks after five years of uninterrupted service.
1 additional week of unpaid annual leave may be taken in certain cases.
Employees with less than one year of uninterrupted service are entitled to one day per month of uninterrupted service during reference year (2 weeks maximum).
4% of gross wages during the reference year; 6% of gross wages for employees entitled to three weeks of annual leave; special provisions apply to employees who are absent because of sickness, accident or maternity leave.
Unpaid Leave Maternity – 18 weeks
Parental – 52 weeks
Adoption – 52 weeks
Family Responsibility – 10 days
Sick Leave – 26 weeks
Bereavement – 5 days
Compassionate Care – 12 weeks
Reservist – 18 months
Record keeping n/a

Saskatchewan
Employment standard Minimum Standard
Minimum Wage $9.25/hour effective 01/May/2009
Standard Hours 8 in a day; 40 in a week. Maximum of 44 hours in a week.
Periods of Rest 8 consecutive hours in a 24-hour period.
24 or 48 consecutive hours in a 7-day period
Overtime 1 ½ times reg. rate
Time off in Lieu of Overtime No, time off may not be taken in lieu of overtime.
Averaging Agreements Yes, to meet the need for flexibility in the workplace, the Saskatchewan Labour Standards Act allows employers and employees to enter into Averaging Agreements which permit hours of work to be averaged over a period of one, two, three or four weeks. Under such an agreement an employee would only qualify for overtime pay if the average hour’s worked per week during the Averaging Agreement exceeds 40 hours.
General and Public Holidays 9 public holiday days per year.
Holiday pay is regular wages (or pro-rated amount) in addition to 1½ times the regular rate for time worked.
Vacation 3 weeks; 4 weeks after 10 years of employment.
Vacation pay is 3 / 52 of total wages earned in year of employment and 4 / 52 of total wages for employees entitled to 4 weeks of annual holidays.
Unpaid Leave Maternity – 18 weeks
Parental – 37 weeks
Adoption – 52 weeks
Family Responsibility – 3 days
Sick Leave – 12 days
Bereavement – 5 days
Compassionate Care – 12 weeks
Reservist – N/A
Record keeping Records must be kept for a minimum of 5 years after the employment terminates.
All employers must keep payroll records for each employee, including the employees name and address; brief job description; start and end dates of employment; hours at which work begins and ends each day; times for breaks; total number of hours worked each day and each week; regular rate of wages; total wages paid; dates on which each holiday is taken; total wage and annual holiday pay for any period of employment; and, all deductions from wages and the reason for each deduction.

Annex D – Employer Declaration

This form is no longer available.

Annex E – Job Offer

Job Offer – Please ensure that the job offer to the foreign national contains the following information:

  • Job title;
  • Job requirements: education, language, skills and qualifications;
  • Employment location;
  • Hours of work;
  • Salary to be paid to the employee; and
  • Benefits that will be provided to the employee.
Date Modified: