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Staffing Up Your Canadian Operations: 5 Immigration Tactics

Published:

April 22, 2024

Author(s):

• Sarah McInnes
• Elizabeth Olufunke Salami

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Whether you’re entering the Canadian market by setting up a subsidiary or a branch office, you’ll need to staff your new operations up. And depending on the nature of your business, you might only be able to find the talent you need beyond Canada’s borders – and you might be under a time crunch to do it. But you’ll face a few key challenges:

Constant Change. Canada offers foreign nationals numerous immigration programs, within each of which are numerous “streams”. The programs and the streams are constantly changing, with existing ones being modified, “paused” and discontinued and new ones being piloted and added, some permanently and some temporarily. It’s tough for employers to stay up to speed on what’s available and which option is the best fit.

Labour Market Impact Assessment (LMIA). To work in Canada, a temporary foreign worker (and all foreign workers are “temporary” until they are a Permanent Resident or a Citizen) needs a Work Permit. And, with some exceptions, to get a Work permit a Canadian employer requires the federal government’s authorization to hire a foreign worker in the form of a Labour Market Impact Assessment (LMIA). A positive LMIA means the employer has tried but has been unable to find a Canadian or Permanent Resident for the job, that the job offer is legitimate and that there’s a genuine need for the skills and expertise of a foreign worker in the Canadian job market. But the LMIA process can be lengthy, time consuming and costly (you pay whether you get the LMIA or not).

Processing Backlogs. The COVID-19 Pandemic combined with post-pandemic immigration increases has led to a processing backlog that still isn’t resolved. For example, as of February 29, 2024, 48% of temporary residence applications were “backlog” (exceeding service standards). And this translates to potential delays for Canadian employers.

To help you meet – and overcome – the challenges and get your Canadian operations staffed up in a timely manner, use these five tactics.

1. Have a (Flexible) Immigration Strategy

The worst way to approach an immigration challenge is to be reactive. A proactive approach allows you to develop a well-considered strategy for your Canadian workforce. A reactive approach leaves you trying to fix problems. Immigration shouldn’t be an afterthought; being under the gun could lead to circumventing applicable immigration rules – and exposing yourself to significant non-compliance risks. By taking the time upfront to consider whether hiring foreign workers is a viable strategy for your business and if so, to develop an immigration strategy, you’ll be prepared to properly staff your Canadian operations up with the foreign talent you need in a proactive and legally compliant way. However, because immigration laws are constantly changing, existing immigration programs are consistently changed or ended and new immigration programs are regularly introduced, it’s crucial that your strategy is flexible so you can adapt to the legal environment. Your immigration strategy should include:

• Research so you can understand the available Canadian talent in the market, including competitors, universities, job postings, and so on.
• Understand Canadian immigration rules and the relevant timelines so you can plan effectively.
• Consider new or short-term or pilot immigration programs that reflect shifting government priorities.

With this information, you’ll be in the best position to create an immigration strategy to meet your workforce needs.

2. Move Key Existing Foreign Employees to Canada

The easiest and most expeditious tactic to staff up your Canadian operations is by intra-company transfer: transferring existing, non-Canadian employees of your non-Canadian operations to your Canadian operations. To be eligible as an “Intra-Company Transferee”, an individual must meet four criteria:

• Be currently employed by a multi-national company and seeking entry to work in a parent, a subsidiary, a branch, or an affiliate of that company.
• Be undertaking employment at a legitimate and continuing establishment of that company.

• Be transferred to a position in an executive, senior managerial, or specialized knowledge capacity.

• Have been employed continuously by the employing company in a similar full-time position (not accumulated part-time) for at least one year.

There is a high risk Immigration, Refugees and Citizenship Canada (IRCC, the federal government department responsible for immigration) will refuse the application for intra-company transfer if your Canadian subsidiary or branch isn’t well-established. However, you can mitigate this risk by:

• Establishing the Canadian entity, obtaining space and hiring staff before you make the intra-company transferee application.
• Demonstrating to IRCC a credible plan for the entry of your business offering into the Canadian market.

3. Hire From Visa-Exempt Countries 

Canada requires that foreign workers from some countries have a visa (authorization permitting a foreign national to enter Canada) – and those from others do not. Visa-requiring countries include China, India, Mexico, Russia, Philippines and most of Asia; Visa-exempt countries include the U.S., U.K., Ireland, France, Germany, Italy, Norway, Poland, Japan, South Korea and Australia. Foreign workers from visa-exempt countries can apply for a Work Permit at the port of entry rather than making their application at the Canadian embassy in their country. Port of entry applications are immediately processed and aren’t subject to the normal processing times, which can be varied and lengthy.

4. Focus on Expedited Immigration Processing Programs

The Canadian government has developed immigration programs or streams within programs specifically intended to expedite the entry of targeted foreign workers, either by exempting them from the LMIA requirement altogether or by offering a specialized LMIA. The Global Talent Stream is a particularly attractive example of an immigration stream offering a specialized LMIA. There are two categories of Global Talent Stream LMIAs, each targeted to different employer needs.

• Unique & Specialized Talent. Targets employers that need unique and specialized foreign nationals to grow and compete on an international level.

• Global Talent Occupations List. Targets employers that need to fill an in-demand highly-skilled position listed on the Global Talent Occupations List.

The Global Talent Stream LMIA process has three distinct advantages over the “standard” LMIA process:

Super Service Standards. Employment & Social Development Canada (ESDC, the federal government department responsible to process all LMIAs) has committed to a service standard of processing Global Talent Stream LMIAs in 10 business days, 80% of the time, and has adhered closely to this standard. Once an employer has received a positive Global Talent Stream LMIA, the foreign worker applicants are eligible to have IRCC process their work permits in 10 business days, 80% of the time.

No Canadian Recruitment Requirement. Employers applying for a Global Talent Stream LMIA are encouraged to recruit Canadians and permanent residents and will be asked about their recruitment efforts on the Global Talent Stream LMIA application form – but it’s not mandatory to do so.

More Flexibility. A key difference is that employers can hire multiple foreign workers for different occupations and at different wages under a single Global Talent Stream LMIA. Another is that employers can increase the wages paid to temporary foreign workers whose work permit was issued under a positive Global Talent Stream LMIA. Neither of these options are available under a regular LMIA.

5. Spotlight International Students

Look in your own (school) backyard. Hiring foreign nationals straight out of school might not always be a solution; some positions require developed skills or experience. But it could be a solution for some positions. There are several immigration programs that target international graduates from Canadian post-secondary schools. In particular, under the International Mobility Program (IMP) Post-Graduate Work Permit (PGWP), an international graduate of any “Designated Learning Institution” – which is broader than just a university –  in Canada can work immediately upon graduation, anywhere in Canada and for any employer, if they’ve submitted their work permit application.

Please contact your McInnes Cooper lawyer or any member of our Immigration Law Team @ McInnes Cooper to discuss getting you the foreign workers you need for your Canadian operations.

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