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Hiring Foreign Workers? 10 Questions to Ask First

Published:

June 7, 2023

Author(s):

• Meghan Felt
• Kim Collier

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Many Canadian employers continue to be challenged not only with hiring the right number of people, but with finding candidates with the right skills to hire. One potential solution is to recruit and hire foreign workers. But before even considering how to hire a foreign worker, you need to evaluate whether hiring a foreign worker is a viable solution for you. Ask yourself these 10 questions and you’ll be well-prepared to discuss with your immigration lawyer whether hiring a foreign worker(s) is an appropriate strategy for your business.

1. How quickly do you need the foreign worker(s)?

The speed with which you need the workers will affect whether hiring a foreign worker will meet your needs and, if so, the best immigration program to do so. Canada continues to experience immigration processing backlogs. As of December 3, 2022 there were 2.243 immigration applicants in the Immigration, Refugees and Citizenship Canada inventory; of these approximately 1.09M applications were considered “backlog” (that is , not processed withing the service standards for the relevant program). However, the actual processing time for various immigration streams varies widely depending on the circumstances. For example, the processing time varies from over eight months for workers from certain visa-requiring countries for non-essential occupations, to immediate processing of port of entry applications for the intra-company transfer of executives/Senior Managers and specialized knowledge personnel from visa exempt countries.

2. For how long do you need the foreign worker(s)?

If your goal is to hire foreign workers on an indefinite, long-term basis, you’ll likely have to follow the “typical” process, including obtaining a Labour Market Impact Assessment (LMIA). The LMIA confirms the employer has unsuccessfully attempted to hire Canadians and Permanent Residents and is usually a time-consuming process because of the strict advertising requirements to obtain one. However, if your goal is to hire a foreign worker for a limited time only, you might be able to take advantage of exceptions to the typical process. For example, if you want to hire a foreign worker in a “high skilled position” for 15 or 30 days, that worker could be eligible for a work permit exemption under the Global Skills Strategy. This exemption could significantly streamline the process and reduce the associated time and cost.

3. What’s the position you need to fill?

The Federal Government has established a National Occupation Classification (NOC) detailing every job in the Canadian labour market and the related education, training and job duties. Depending on the position or occupation you’re trying to fill, you might be able to access specialized or expedited immigration programs that reduce your time and cost. For example, certain technology positions are eligible for a Global Talent Stream Labour Market Impact Assessment that’s exempt from the typical LMIA advertising requirements and offers a two-week expedited process for both the LMIA & the work permit. Other positions are eligible for a LMIA exemption under international trade agreements such as the Canada-United States-Mexico Agreement (CUSMA) and the Canada European Union Comprehensive Economic and Trade Agreement (CETA). Or you might be able to use the Francophone Mobility Program, a specialized immigration stream allowing Francophone skilled workers to live and work anywhere in Canada outside of Quebec that’s LMIA-exempt if the position is high skilled and the foreign worker’s habitual language of daily use is French.

4. Where are you recruiting from?

Where you’re recruiting from affects the time it will take to get the foreign worker into Canada, the immigration programs that are available, the process you and the worker must follow, and the costs. For example:

Intra-Company Transfers. If you’re recruiting foreign workers that already work in a foreign location of your company, there are Labour Market Impact Assessment -exempt processes for intra-company “transfers” of employees to a position in an executive, senior managerial, or specialized knowledge capacity. 

Visa-Requiring Country. Foreign workers from visa-requiring countries (for example, the Philippines, China and India) must apply for a work permit at the Canadian embassy in their home country; processing times vary from two weeks to more than eight months. 

Visa-Exempt Country. Foreign workers from visa-exempt countries (for example, the U.S., the U.K. and Australia) 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 will be allowed into Canada but the processing is virtually immediate.

5. Where’s the position located?

Where in Canada the position you’re filling is located affects the immigration programs that are available, which in turn affects the applicable timing, process and costs.

Federal Programs. Federal programs are available to positions anywhere in Canada. Examples include the Temporary Foreign Worker Program (TFWP), Start-up Visa and the Express Entry Program.

Regional Programs. Regional programs exist and are available for positions only within the relevant region of Canada. For example, the Atlantic Immigration Program (AIP) applies only to positions in Atlantic Canada.

Provincial Programs. Each Canadian province has a Provincial Nominee Program each with their own streams, eligibility criteria and processing fees.

6. Are you already posting job ads domestically?

Whether you’re already advertising to fill the positions domestically will affect your timing to recruit and hire a foreign worker(s). While there are some exceptions, to obtain a Labour Market Impact Assessment you typically must advertise domestically to fill the position, meeting very specific criteria such as mandatory content and minimum duration of the posting. So, if you haven’t already started advertising domestically to fill the position, you’ll be required to start that process from scratch. If, however, you’ve already started advertising the position domestically and assuming the advertising content meets the LMIA requirements, you’re that much ahead in the process.

7. How much are you willing to be involved with the foreign worker (& their family)?

The degree to which you’re willing to be involved with the foreign worker(s) and in some cases, their family, is a factor that will help determine the most suitable immigration program for you. Some immigration programs are employer-driven and require significant employer involvement. For example, the Atlantic Immigration Program (AIP) requires employers to be more involved in the settlement of the foreign worker and their family. In contrast, some immigration programs, such as Provincial Nominee Programs, are applicant-driven and don’t require the same level of employer involvement.

8. Do you have the administrative bench strength?

Hiring and employing foreign workers demands administrative time and resources to do it properly – and to avoid the risks of doing it improperly. You’ll need to be prepared to manage the foreign worker recruiting and processing requirements. Employer-driven immigration programs require even greater resources from the employer. For example, the Atlantic Immigration Program requires employers to file a robust endorsement application; similarly, the Temporary Foreign Worker Program (TFWP) requires employers to file an extensive Labour Market Impact Assessment (LMIA) application. And once you’ve hired a foreign worker(s) you’ll still have ongoing immigration law compliance requirements. For example, Employment and Social Development Canada (ESDC) has the authority to randomly audit employers for immigration law compliance. It’s crucial that you have the administrative resources in place to ensure immigration law compliance: the non-compliance consequences can be significant for both 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.  For example, some programs, including the Atlantic Immigration Program and some Provincial Nominee Programs, could be preferable if you’re recruiting multiple foreign workers because of lower processing fees per foreign worker. Other programs that require a Labour Market Impact Assessment have higher processing fees (currently $1,000 per foreign worker) and thus an overall greater cost. The number of foreign workers you’re hiring also creates a higher administrative burden, requiring more internal resources to manage recruiting, processing and legal compliance demands.

10. What’s your budget?

Hiring a foreign worker(s) isn’t a free endeavour, so make sure you have the budget to cover the costs. For example, you might be required to pay government processing fees that vary depending on the immigration program, and that go up the more foreign workers you’re hiring. Expect to incur legal fees as well, though these fees could be reduced if you’re hiring multiple foreign workers.

Please contact your McInnes Cooper lawyer or any member of our Business Immigration Team @ McInnes Cooper to discuss whether hiring a foreign worker(s) is an appropriate strategy for you.

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