'There are obligations that come with hiring foreign workers,' says lawyer offering tips for HR
Are Canadian recruiters seeing a rise in job applications since President Donald Trump inauguration? Just last month, an Ivy League professor from Yale University made headlines for planning on relocating to Canada to work at the University of Toronto, according to CTV. In Manitoba, Health Minister Uzoma Asagwara, who has been using this opportunity to recruit American nurses and physicians, said in an interview that she’s seen interest from a dozen U.S. doctors looking to come to Canada, as reported by CTV.
Hiring Americans is often seen as easier than hiring foreign nationals from other countries due to specific pathways for U.S. job seekers to make their way to Canada.
However, there are certain compliance risks that employers should keep in mind before making that jump.
There are several ways for Canadian employers to bring talent to Canada. However, the main one is through the United States-Mexico-Canada Agreement (CUSMA).
“It's sort of the first place that a Canadian employer looking to hire an American would go as it's available, and it's straightforward,” says Lainie Appleby, an immigration lawyer from Guberman Appleby.
CUSMA is a trilateral agreement to promote more trade and investment between the three countries. The agreement also provides opportunities for certain professionals, traders and investors to be able to work in Canada temporarily without facing the many challenges of securing work permits. Workers can enter Canada under a CUSMA professional work permit.
This agreement replaced the North American Free Trade Agreement (NAFTA) which operated similarly.
Appleby explains that while there are three main categories under CUSMA, employers should focus on two: the professional category and intercompany transfers.
“For the intercompany transfer, if the American who is approaching the Canadian company for a job is already working for their U.S. operation, it's fairly straightforward to apply for a work permit as an intercompany transferee, provided that the person has worked for the U.S. operation,” Appleby says.
For the ‘designated professional categories,’ employers must make sure to hire an American or Mexican citizen who fits within one of 63 approved professions. These can include positions such as engineers, accountants, doctors, scientists, nurses, teachers, among many others.
Appleby notes if the U.S. job seekers don't fit in the CUSMA list, then they need to look at “general work permit categories.”
However, many employers avoid this route as it requires a Labour Market Impact Assessment (LMIA). An LMIA requires companies to wait weeks for approval and to advertise for a 30-day period.
According to the government of Canada, to hire any temporary foreign workers, employers must do an LMIA to show the need for the temporary foreign worker and that no Canadian permanent residents are available to do the job.
Elena Ashford, an immigration lawyer from Siskinds law firm, notes that with CUSMA, a U.S. citizen can apply at the port of entry to Canada, and it can be adjudicated on the same day. Employers, however, must be prepared to provide job support to foreign workers.
However, employers need to be aware of the compliance requirements and risks that extend beyond issuing a job offer.
“There are obligations that come with hiring foreign workers, and the primary obligation is that you cannot deviate significantly from the conditions of the work permit,” explains Ashford. This includes the job title, duties, wages, and location of employment.
If employers hire a worker on a closed permit—a permit designed for a specific role for a Canadian company — employers must follow strict rules on how much wages or bonuses can be offered, she says.
Additionally, if employers want to add or significantly modify the conditions of the worker's employment — such as relocation —that can trigger a need for a new work permit. According to Canada Visa, CUSMA work permits for professionals fall under the category of a closed permit.
Failing to comply with the permit terms or not keeping proper records can be seen as non-compliance and carries serious risks and penalties, Ashford adds.
Ashford highlights that employers might also need to assist employees transitioning to permanent residents. Since work permits in Canada are valid for only three years at a time, employers might need to assist with permit renewals.
“Employers must also be mindful that if they're hiring an individual who is a foreign national, whether they are U.S. citizens or citizens of another country, it may take years and years for that individual to transition to permanent residency,” she says.
This year, Immigration, Refugees and Citizenship Canada tabled a plan to decrease Canada's temporary residence population from seven per cent to five per by 2027 by tightening eligibility for temporary programs and decreasing the number of permanent resident’s admissions.
“My advice to Canadian employers is to consult an immigration lawyer just to understand the record-keeping part of hiring even someone on a work or an open work permit,” Ashford says.
