Officers would receive applications under Division 2 for work permits from foreign nationals – other than foreign nationals referred to in subparagraphs 200 (1) (c) (i) to (ii.1). In this scenario, officers would need to determine certain things. They would base their information based on:
- The assessment they receive from the Department of Employment and Social Development
- The information provided by the employer making the offer (on the request of the officer) and,
- Any other relevant information
The officers would use the above-mentioned information to determine if:
- The job offer is genuine under the provisions specified in subsection 200 (5)
- The employment of the foreign national is likely to have a neutral or a positive effect on the labour market in Canada (refer to the section titled ‘The Effect on the Labour Market’)
- The issuance of a work permit would not be inconsistent with the terms of any federal-provincial agreement that applies to the employers of foreign nationals
- In the case of foreign nationals seeking to enter Canada as live-in caregivers:
- The foreign national would reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in that household without supervision
- The employer would provide the foreign national with adequate furnished and private accommodations in the household and,
- The employer has ample financial resources to pay the foreign national the wages offered to the foreign national and,
- In the case of the employer:
- The employer provided each foreign national with employment in the same occupation as specified in the foreign national’s offer of employment, with wages and working conditions that were substantially the same (but not less favourable than) the details specified in the offer of employment during the period beginning six years prior to the day on which the Department of Employment and Social Development receives the request for an assessment (refer to the section titled ‘The Assessment on Request) ’under the provisions specified below and ending on the date on which the Department receives the application for the work permit or,
- The employer is able to justify any failure to satisfy the criteria specified in subparagraph (i) – refer to the section titled ‘Justification’
The Effect on the Labour Market
The employment of a foreign national would be unlikely to have a positive or a neutral effect on the labour market in Canada if the offer of employment specifies the ability to communicate in a language other than English or French, unless:
- The employer or group of employers can demonstrate that the ability to communicate in the other language is a bona fide requirement for performing the duties associated with the employment
- The offer of employment relates to the performance of work under an international agreement between Canada and one or more countries concerning seasonal agricultural workers or,
- The offer of employment relates to other work requiring action in the primary agriculture sector, within the provisions specified in subsection 315.2 (4)
Justification
Officers would need to note that a failure to satisfy the criteria specified above is worthwhile if it results from:
- A change in federal or provincial law
- A change in the provisions of a collective agreement
- The implementation of measures by the employer in response to a dramatic change in the prevailing economic conditions that directly affected the employer’s business
- This is applicable as long as the employer adopted or introduced measures that were not disproportionately directed at foreign nationals employed by the employer
- Any error in interpretation made in good faith by the employer about the employer’s obligations to a foreign national
- This is applicable as long as the employer provided a suitable compensation subsequently to all foreign nationals who suffered a disadvantage as a result of the error
- Situations could arise where the employer is not able to provide a suitable compensation to the foreign nationals who suffered a disadvantage as a result of the error
- In this scenario, the officers would need to assess whether the employer made sufficient efforts to provide a suitable compensation to the affected individuals
- Any unintentional accounting or administrative errors made by the employer
- This is applicable as long as the employer provided a suitable compensation subsequently to all foreign nationals who suffered a disadvantage as a result of the error
- Situations could arise where the employer is not able to provide a suitable compensation to the foreign nationals who suffered a disadvantage as a result of the error
- In this scenario, the officers would need to assess whether the employer made sufficient efforts to provide a suitable compensation to the affected individuals
- Any circumstances similar to the ones specified above or,
- Force majeure
The Assessment on Request
The Department of Employment and Social Development would need to provide the assessment on the request of:
- An officer
- A group of employers or,
- An employer
The individual making the request could file the request in respect of:
- An offer of employment to a foreign national and,
- Any offers of employment made, or anticipated offers of employment still awaiting issuance, by an employer or a group of employers
This requirement does not apply to:
- Employers who offer striptease, erotic dances, escort services or erotic massages on a regular basis or,
- Employers whose names appear on the list referred to in subsection 209.91 (3) if a period of two years has not elapsed since the day on which the authorities made the determination referred to in subsections (5), 209.91 (1) or 209.91 (2)
The Basis of Assessment
The Department of Employment and Social Development would base the assessment on the matters specified above on:
- Any information provided by the employer making the offer and,
- Any information that they possess
However, officers would need to note that the period beginning six years prior to the day on which the Department of Employment and Social Development receives the request for an assessment ends on the day on which the Department receives that specific request for the assessment.
The Factors and their Effect on the Labour Market
Any assessment provided by the Department of Employment and Social Development about the matters referred to earlier in this section (i.e. whether the employment of the foreign national is going to have a neutral or a positive effect on the labour market in Canada) will typically depend on the following factors:
- Whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents
- Whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents
- Whether the employment of the foreign national will or is likely to fill a labour shortage
- Whether the wages offered to the foreign national are consistent with the prevalent wage rates for the occupation and whether the working conditions generally comply with accepted Canadian standards
- Whether the employer will hire or train Canadian citizens or permanent residents (or has made or has agreed to make) reasonable efforts to ensure this
- Whether the employment of the foreign national will or is likely to have an adverse effect on the settlement of any labour dispute in progress or the employment of any person involved in the dispute and,
- Whether the employer has fulfilled or has made reasonable efforts to fulfill any commitments made, in the context of any assessment on request (refer to the segment titled ‘The Assessment on Request’) the employer received previously, with respect to the following matters:
- Whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents
- Whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents and,
- Whether the employer will hire or train Canadian citizens or permanent residents (or has made or has agreed to make) reasonable efforts to ensure this
This is applicable on all assessments provided by the Department of Employment and Social Development. However, this is not applicable in the case the officers find that the employment of the foreign national is unlikely to have a positive or a neutral effect on the labour market in Canada as a result of the application of the following subsection:
- The employment of a foreign national would be unlikely to have a positive or a neutral effect on the labour market in Canada if the offer of employment specifies the ability to communicate in a language other than English or French, unless:
- The employer or group of employers can demonstrate that the ability to communicate in the other language is a bona fide requirement for performing the duties associated with the employment
- The offer of employment relates to the performance of work under an international agreement between Canada and one or more countries concerning seasonal agricultural workers or,
- The offer of employment relates to other work requiring action in the primary agriculture sector, within the provisions specified in subsection 315.2 (4)
The Period of Validity of the Assessment
Any assessment provided by the Department of Employment and Social Development would need to indicate the period during which the assessment is in effect for the purposes specified in the section at the beginning of this appendix.
The Province of Quebec
Situations could arise where officers come across foreign nationals who intend to work in the Province of Quebec. In this scenario, the Department of Employment and Social Development would provide the assessment in conjunction with the competent authority of that specific Province.
The Process in the Event of Failure to Satisfy the Criteria
In some cases, the officers could determine that the applicant did not satisfy the criteria specified in:
- Sub clause 200 (1) (c) (ii.1) (B) (I) or,
- Sub paragraph (1) (e) (i)
In addition, the officers might find that the employer was unable to provide any justifications (refer to the section titled ‘Justification’ as well. In this scenario, the Department would need to notify the employer of that determination. They would need to add the employer’s name and address to the list referred to in subsection 209.91 (3) too.
Source: Citizenship and Immigration
