Employers continue to be challenged with finding people with the right skills. One solution: hire foreign workers. Ask yourself these questions to help determine whether hiring a foreign worker could help you.
1. How quickly do you need them?
How quickly you need workers affects whether hiring a foreign worker is a viable solution at all and, if it is, the best immigration program to pursue. Canada continues to experience immigration processing backlogs, but the actual processing time for specific programs varies widely. For example, the processing time for workers for non-essential occupations from certain visa-requiring countries is over eight months. Port-of-entry applications for the intra-company transfer of executives or senior managers and specialized knowledge personnel from visa-exempt countries are processed immediately.
2. How long do you need them for?
If your goal is to hire foreign workers on an indefinite, long-term basis, you’ll likely have to follow the typical process. This includes obtaining a Labour Market Impact Assessment (LMIA), usually a time-consuming process, to confirm you’ve unsuccessfully attempted to hire Canadians and Permanent Residents. But if your goal is to hire a worker for a limited time, exceptions to the typical process might be available. For example, if you want to hire a foreign worker in a “high skilled position” for 15 or 30 days, they could be eligible for a work permit exemption under the Global Skills Strategy.
3. What position do you need to fill?
Depending on the position, you might be able to access specialized or expedited immigration programs. For example, certain positions are eligible for a Global Talent Stream LMIA with a two-week expedited process for the LMIA and the work permit. Other positions are LMIA exempt under international trade agreements such as the CUSMA and the CETA. Or you might be able to use the Francophone Mobility Program, a specialized LMIA-exempt stream allowing foreign workers to live and work anywhere in Canada outside Quebec if French is their habitual language of daily use.
4. Where are you recruiting from?
This affects the time it’ll take to get the foreign worker into Canada, the available immigration programs, the process you must follow, and the costs.
· If you’re recruiting workers that already work in a foreign location of your company, there are LMIA-exempt processes for intra-company “transfers” of employees to a position in an executive, senior managerial, or specialized knowledge capacity.
· Foreign workers from visa-requiring countries (for example, the Philippines and India) must apply for a work permit at the Canadian embassy in their country of residence; processing times vary from two weeks to more than eight months.
· Foreign workers from visa-exempt countries (for example, the US and the UK) can apply for a work permit at the Canadian border (port of entry). Applicants must still meet the eligibility requirements for a work permit and all admissibility rules before they’re allowed into Canada, but the processing is virtually immediate.
5. What immigration programs are available to Newfoundland and Labrador employers?
The available programs affect the timing, process, and costs. Newfoundland and Labrador employers can access the following:
· Federal programs, such as the Temporary Foreign Worker Program and the Express Entry Program, are available for positions anywhere in Canada,
· The Atlantic Immigration Program is a regional program available for positions only within Atlantic Canada.
· Newfoundland and Labrador’s Provincial Nominee Program, which has a number of streams each with different eligibility criteria, is available for positions only within Newfoundland and Labrador.
6. Are you already posting job ads domestically?
Whether you’re already advertising to fill the position(s) domestically affects the time needed to recruit and hire a foreign worker. With some exceptions, to obtain an LMIA, you must typically advertise the position domestically, with very specific criteria such as mandatory content and a minimum duration of the posting. If you haven’t already started advertising domestically, you’ll be required to start that process from scratch. But if you’ve already started advertising domestically and if the advertising content meets the LMIA requirements, you’re that much farther ahead in the process.
7. How involved are you willing to be with the foreign worker (and their family)?
The extent to which you’re willing to be involved with the foreign worker(s), and in some cases their family, helps determine the most suitable immigration program. Some programs, such as the Atlantic Immigration Program, are employer-driven and require significant employer involvement. Some programs, like the Newfoundland and Labrador Provincial Nominee Programs, are applicant-driven and don’t require the same level of employer involvement.
8. Do you have the administrative bench strength?
You’ll need administrative resources to manage the foreign worker recruiting and processing requirements. Employer-driven immigration programs require even greater resources. For example, the Atlantic Immigration Program requires employers to file a robust endorsement application; the Temporary Foreign Worker Program requires employers to file an extensive LMIA application. You’ll also need the resources to manage ongoing immigration law compliance after you’ve hired a foreign worker. For example, Employment and Social Development Canada can randomly audit employers for compliance: the non-compliance consequences can be significant for you and for the foreign worker.
9. How many foreign workers are you recruiting?
The number of foreign workers you want to hire also helps determine the immigration program that best fits your needs. Some, including the Atlantic Immigration Program and some provincial nominee programs, have lower or no per-worker processing fees so these could be best for hiring multiple foreign workers. Others that require an LMIA have higher processing fees (currently $1,000 per worker) and thus overall greater cost. The number of foreign workers also affects the administrative resources necessary to manage recruiting, processing, and legal compliance demands.
10. What’s your budget?
Ensure you can cover the costs of recruiting and hiring foreign workers. For example, you might be required to pay government processing fees that vary depending on the immigration program and that increase with the number of foreign workers you’re hiring. Expect to also incur legal fees, though these could be reduced if you’re hiring multiple foreign workers.
Ask yourself these ten questions and you’ll be well-prepared to discuss with your immigration lawyer whether hiring a foreign worker is an appropriate strategy for your business.
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This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2023. All rights reserved.
Meghan Felt is a seasoned immigration lawyer based in McInnes Cooper’s St. John’s office. She represents employers seeking labour market impact assessments and work permits and individuals seeking temporary resident visas, study permits, work permits and permanent residency.
Contact Meghan at meghan.felt@mcinnescooper.com or 709.724.3628.
