Canada: Talent Beyond our Borders: Making the Most of Canada's Immigration Programs

INTRODUCTION

Educational institutions have a tradition of seeking out the best and brightest as well as those with unique talents who can share their knowledge with students and faculty. Whether it is guest lecturers, public speakers, visiting professors or new faculty members, foreign nationals can offer a great source of skill and talent.

However, inviting or hiring foreign nationals can also pose immigration concerns, especially as Canada's Temporary Foreign Programs are being increasingly monitored and Border Services Officers continue to exercise wide discretion at the port of entry.

Despite these challenges, immigration does not have to be a source of frustration. If you are able to plan ahead and maximize the use of programs aimed at increasing mobility of highly or uniquely skilled individuals, the process can be much easier.

MAKING A PLAN

Start thinking about an immigration strategy as soon as you know that the person you have invited or engaged is not a Canadian or a Permanent Resident. The sooner you understand what they will need in order to enter and stay in Canada, the easier it is to figure out an appropriate schedule for their arrival - making the process easier for everyone involved.

DOES THE PERSON NEED A WORK PERMIT?

The first question to ask is whether the individual needs a work permit or if they are exempt. While the Immigration and Refugee Protection Regulations define "work" very broadly, there are many exemptions tailored to educational institutions.

Public speakers or guest lecturers such as academic speakers at university or college functions can qualify for a work permit exemption. This exemption also extends to seminar leaders for small classes, short intensive courses or conferences lasting less than five days.

A relatively recent exemption exists for researchers coming to Canada for less than 120 days. This was introduced under the Global Skills Strategy in 2017 to allow researchers at publicly funded degree-granting institutions or affiliated research institutions to work in Canada for one 120-day period once every 12 months.

A similar exemption applies to highly skilled workers which includes those who are professionals (in accordance with the National Occupation Classification) who want to work for very short durations. These individuals can qualify for a work permit exemption for 15 consecutive days, once every six months or 30 days once a year.

Utilizing the above exemptions where applicable makes it easier to invite foreign nationals to your institution while complying with immigration laws.

WHAT KIND OF WORK PERMIT CAN THEY OBTAIN?

If the temporary worker requires a work permit, consideration needs to be made regarding the type of permit that should be obtained.

Generally, every foreign national requiring a work permit must also have a Labour Market Impact Assessment ("LMIA") to support their application. A positive LMIA is issued by Employment and Social Development Canada where the employer shows that there were no suitable Canadian or Permanent Residents for the position.

There are, however, some important exemptions to the LMIA requirement which may be applicable. For example, foreign nationals can qualify for work permits under programs designed to allow those creating significant social, cultural or economic benefits to work in Canada. This includes an exemption for academic exchanges for visiting professors or guest lecturers.

Another important type of work permit is based on international agreements including the North American Free Trade Agreement ("NAFTA"). Under NAFTA, librarians, college and university professors and research assistants from the United States or Mexico can qualify for LMIA-exempt work permits. This makes it much easier for those individuals to take temporary positions in Canada.

Post-graduate fellows and research award recipients can also qualify for work permits exempt from an LMIA. This allows those individuals to take time-limited positions to teach and advance their studies or research in Canada.

Lastly, depending on the longterm plan, Atlantic Canadian employers may consider enrolling in the Atlantic Immigration Pilot Program as an option for hiring global talent. This program is aimed at providing an avenue for permanent residence and has a stream dedicated to highly skilled workers. It also provides the option of applying for a work permit so that the individual can work in Canada while their permanent residency application is being processed.

No matter which of the programs apply, the employer must be mindful of their obligations. This includes upfront requirements such as applying for an LMIA or submitting an Online Offer of Employment and Compliance fee before the worker applies for a permit.

HOW DO THEY GET THEIR PERMIT?

Depending on a person's nationality they may or may not be eligible to apply for their permit at the Canadian border. Individuals requiring a visa to enter Canada will need to make their applications for work permits outside of Canada.

Applicants applying outside of Canada should be aware of the Global Skill Strategy introduced last year which provides for two week processing for highly skilled workers. This can significantly cut down on processing times for those ineligible to make their application at the Canadian border.

WHAT OTHER OFFICIAL DOCUMENTATION DO THEY NEED?

Depending on the purpose of the visit or the type of permit the individual is eligible for, there are a number of documents they will need to gather. The foreign national must carefully consider the requirements of the program and prepare their application package with the necessary documents even if they intend to apply at the port of entry. However, there are a few requirements which will need to be considered each time a foreign national is preparing to enter Canada in order to avoid delays or surprises.

All travellers to Canada must consider what they require to be admissible to the country whether they are going to be working or visiting. This can include a Temporary Resident Visa ("TRV") for which the applicant may need a letter from the institution who has invited them to visit. Alternatively, they may simply need to obtain an electronic Travel Authorization ("eTA") for their trip to Canada.

Another consideration is whether the individual requires an Immigration Medical Examination before applying for a work permit. Applicants from designated countries coming to Canada for more than six months will need to undergo a medical examination by a designated panel physician prior to their application.

Finally, this summer Immigration, Refugees and Citizenship Canada have increased the requirements for biometrics (fingerprints and photographs) in order to enter Canada. This tool is being used to establish identity for immigration purposes. As of July 31, 2018 individuals applying for visitor visas, work permits, study permits, or permanent residence from Europe, the Middle East or Africa will need to give biometric data as part of their application. Those from Asia, Asia Pacific and the Americas will need to provide biometrics beginning December 31, 2018.

CONCLUSION

Inviting or hiring foreign nationals at your institution requires some up front planning, but there are many programs and exceptions tailored to educational institutions.

For assistance in making the most of immigration programs, or in determining the best options and requirements, Stewart McKelvey would be happy to assist.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.