The hiring process for skilled foreign workers is subject to immigration requirements, which vary depending on the type of work permit which is sought. The process of obtaining a work permit has a number of steps which can often take unwary employers by surprise.
1. Location, location, location!
If the foreign worker is applying for a type of work permit which requires “prevailing wages” (e.g.: certain intra-company transferee for specialized knowledge workers, labour market impact assessment, and applicable provincial nominee programs), employers must pay the foreign workers at or above the median wage that is established by Employment and Social Development Canada. The prevailing wage is set out for occupations based on geographic locations, and is updated regularly based on statistical data.
The prevailing wage can have quite a discrepancy between different geographical locations across Canada even for the same occupation. For instance, in order to hire a foreign software engineer under the applicable programs, employers will have to pay at minimum CAD$37.95 per hour in Nova Scotia, but $52.88 per hour in the Lower Mainland area of British Columbia.¹ Therefore, employers should verify that they have the budget for the foreign worker’s salary that meets the prevailing wage for the occupation in the geographical work location.
2. Some foreign workers may be work permit exempt
The Immigration and Refugee Protection Act, Regulations and policy enumerate certain work situations in which foreign workers may be exempt from work permits such as business visitors, foreign diplomats, military personnel, expert witnesses or investigators, and public speakers.² Even where there are work permit “exemptions”, however, this does not mean that foreign nationals will automatically be granted this status at the border. They may be required to present certain documents and undergo an interview with the immigration officer who will make the determination on their eligibility under the applicable program and their admissibility to enter Canada.
3. Retention of relevant documents for 6 years
Employers who hire foreign workers under employer-specific work permit programs must retain relevant documents for a period of six (6) years from the commencement of the foreign workers’ employment based on their work permits. During the six-year period, Immigration Canada may request documents from employers to verify their compliance with the work permit program requirements (such as adhering to the recruitment requirements of the programs prior to making the offer of employment to the foreign worker, paying the prevailing wage, and providing same occupation to the foreign worker as set out in the job offer). Depending on the severity and number of violations, failure to retain documents can be costly, with fines ranging between $500 and $100,000. Additionally, employers may be banned temporarily or permanently from utilizing the work permit programs to hire foreign workers and added to the government’s public list of non-compliant employers.³
If you have questions about hiring temporary foreign workers to work in Canada, please contact Jae-Yeon Lim.
¹ The figures provided herein for the prevailing wages are subject to change without notice. You can check prevailing wages for the occupation on Job Bank Website (https://www.jobbank.gc.ca/trend-analysis/search-wages).
² Work permit exemption scenarios are highly case-specific and we would highly recommend obtaining legal advice on applicable entry requirements for the proposed activities in Canada.
³ https://www.canada.ca/en/immigration-refugees-citizenship/services/work-canada/employers-non-compliant.html
