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Every foreign worker must obtain a work permit under Canada's immigration regulations in order to legally work in Canada. Canada needs foreign workers possessing skills required, while simultaneously protecting the Canadian work force. The reconciliation of these two competing interests has led to the development of a complex employment confirmation scheme involving the departments of Human Resources and Skills Development Canada (Service Canada) and Citizenship and Immigration Canada (CIC).
As a general rule a visa and immigration officer is not authorized to issue a work permit to a foreign worker unless in the opinion of the officer the employment of the person in Canada will not adversely affect the employment opportunities for Canadian citizens or permanent residents.
The involvement of Service Canada is a convenient way for immigration and visa officers to consider the opinion of Service Canada or whether the employment of the foreign worker would adversely affect the employment of Canadians.
With a favourable opinion known as the "confirmation" from Service Canada, these immigration officers will then issue a work permit to the foreign worker once other security and medical qualifications have been met.
Once confirmation has been issued by Service Canada, the immigration officers will accept it as a basis for approving a work permit if the foreign worker has the qualifications required for the position and meets general immigration requirements.
The issue of employment confirmations is promised on the principle that only Canadian citizens or permanent residents have a right to work in Canada, referred to as the "Canadians first" policy.
Although the confirmation process was designed to be the primary means of securing work permits for foreign workers, it has proven to be a time consuming and onerous process. The confirmation process generally requires consultation with the employer and the Service Canada, extensive advertising and/or recruitment efforts, substantial documentary support and possible involvement of other government agencies. The processing time for work permits involving confirmations is often two to four months. As a result of these drawbacks, it is often preferable to obtain work permits under the various exemptions to the confirmation process in order to expedite and facilitate entry.
Exemptions
Therefore immigration lawyers obtain or attempt to obtain exemptions so as to avoid the whole process of the Service Canada confirmation.
A number of employment related activities are exempt from the employment application process. Generally the various exempted categories include: buyers and sellers, employees visiting a Canadian branch office, emergency service workers, guest speakers, clinical observers, trainees of a Canadian office or of a multinational corporation, convention organizers, business visitors under North America Free Trade Agreement (NAFTA), or under the General Agreements on Trades and Services (GATS).
NAFTA Exemptions
NAFTA's immigration sections were designed to provide a straightforward procedure for qualified individuals in Canada, the U.S. and Mexico to have access to each other's labour markets. The four categories under which individuals can come to Canada without the Service Canada validation under NAFTA are:
- Business visitors
- Professionals
- Intra-company transferees
- Investors
NAFTA streamlines the applications for processing by eliminating the requirement for confirmation from Service Canada and enables applicants to apply directly to Canadian Immigration for a work permit. Another substantial benefit is that most applicants can apply directly at a Canadian port of entry as opposed to a Canadian visa office abroad for their work permits. This means that prospective employees can (in the West, for example) simply fly to Vancouver International Airport or drive through the Peace Arch border crossing and obtain their work permits directly.
Business visitors are described as business persons who plan to carry on business activities related to research and design, growth and manufacturing and production, marketing, sales, distribution, after sale services and general sales.
Intra-company transfers enable transfer of business persons employed by an enterprise seeking to render services to a branch, parent, subsidiary, or affiliate of the enterprise in a managerial or executive capacity or in a manner that involves specialized knowledge. Its purpose is to facilitate the transfer of key personnel between affiliated enterprises. This is particularly useful in that it specifically contemplates executives and managers as well as those with "specialized knowledge," which is defined fairly broadly so as to fit many classes or types of employees.
Investors are business individuals who seek temporary entry to develop and direct operations of an enterprise in which they have invested or are actively in the process of investing, a substantial amount of capital.
Provisions of NAFTA concerning professionals represent in many respects the most useful category of the Agreement. This allows workers from designated professional occupations relaxed entry which supplements the intra-company transfer procedure in that a worker does not actually have to be employed by the subsidiary, parent, or affiliate before coming to Canada.
Software Workers
On May 5th, 1997 the Federal Government introduced a pilot project which allowed certain kinds of software development specialists or professionals to apply for work permits without obtaining a confirmation. The purpose of the project was to attract software specialists and professionals in demand in Canada. This project has now been included in a permanent policy structure for admitting skilled workers to Canada geared toward information technology workers. The following seven software development occupations are currently in demand in Canada:
- Embedded systems software designer
- Software products developer
- MIS software designer
- Multimedia software designer
- Senior animation effects editor
- Software developer - services
- Telecommunications software designer
Conclusion
In conclusion when one is seeking a foreign worker much of the energy must first be directed to determine whether that particular foreign worker can fall into one of the categories which exempts Service Canada confirmation periods. If successful this exemption itself will expedite the entry of the foreign worker into Canada without the necessary bureaucratic red tape. The exemptions must be carefully crafted to the individual who is being sought to be qualified for entry into Canada, but given the vast exemptions which exist under not only NAFTA, GATS and the Immigration Regulations, it should not be difficult to do so.
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