Canada: Immigration Comparative Guide

1 Legal framework

1.1 Which legislative and regulatory provisions govern corporate immigration in your jurisdiction?

In Canada, immigration is governed by a large range of laws and regulations at the federal and provincial levels. The boundaries of immigration law in Canada are determined by the Constitution. Section 95 of the Constitution Act, 1867 attributes the power to legislate on immigration matters to both the federal and provincial government, with the condition that in case of conflict, federal law prevails.

At the level of the federal government, corporate immigration in Canada is mainly governed by the following laws:

• the Immigration and Refugee Protection Act, SC 2001, c 27;
• the Immigration and Refugee Protection Regulations, SOR/2002-227;
• the Citizenship Act, RSC 1985, c C-29;
• the Citizenship Regulations, SOR/93-246; and
• an Act to amend the Citizenship Act and to make consequential amendments to other Acts LC 2014, ch 22.

In addition to federal laws and regulations, corporate immigration is governed by multiple policies, laws and regulations on a provincial level. For example, corporate immigration in the province of Quebec is governed by the Quebec Immigration Act, LRQ c I-0.2.1. In Ontario, corporate immigration is mainly governed by the Ontario Immigration Act, 2015, SO 2015, c 8.

In conformity with the Canadian legal system, the decisions of the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada are also used to interpret the application of the immigration laws.

1.2 Do any special regimes apply in specific sectors?

The federal government manages its own business immigration programmes. However, since the responsibility for corporate immigration is shared between the federal and provincial/territorial governments, most of the provinces and territories also partly manage their corporate immigration programmes, called 'provincial nominee programmes' (PNPs). The provinces manage these programmes with the cooperation of the federal government. Quebec is the only province in Canada that is not a part of the PNP system and instead has its own system to select business immigrants.

1.3 Which government entities regulate immigration in your jurisdiction? What powers do they have?

Following the Canadian Constitution, the federal government is mainly responsible for immigration in Canada. The organisation responsible for immigration in Canada is Immigration, Refugees and Citizenship Canada (IRCC), a department of the government of Canada, which has overall responsibility for corporate immigration.

However, the responsibility for immigration is shared between the federal and provincial/territorial governments. The federal, provincial and territorial governments plan and consult each other on immigration issues. In addition, IRCC has agreements with all provinces and territories on how they share responsibility for immigration. The Canada-Quebec Accord is by far the most wide-ranging of these agreements.

Each agreement is negotiated separately by the federal government with the province or territory to address unique needs and priorities and the level of shared responsibilities. Following the level of responsibilities shared from those agreements, the provinces and territories can be allowed to make their own immigration policies and regulations, and be in charge, for example, of the nomination or selection of their immigrants.

1.4 What is the government's general approach to immigration in your jurisdiction?

Immigration has historically played a vital role in the development of the Canadian economy and society. The government of Canada has always adopted an open approach to immigration, with world-leading laws and policies. Furthermore, Canada's multicultural heritage is specifically included in the Canadian Charter of Rights and Freedoms. As a result of these policies, Canada has long been a destination of choice for immigrants from every region of the world and every year the country welcomes hundreds of thousands of new residents.

The key categories of Canadian immigration are as follows:

• Federal Skilled Worker;
• Quebec Skilled Worker;
• PNP;
• Family Sponsorship;
• Business Immigrant;
• Canadian Experience Class; and
• asylum.

In many programmes, the selection of immigrants by the federal or provincial programmes is mainly based on different criteria and points systems.

The 2021‒23 Immigration Levels Plan of the federal government of Canada includes responsible increases in immigration targets to help the Canadian economy recover from COVID-19, drive future growth and create jobs for Canadian society.

2 Business travel

2.1 Do business visitors need a visa to visit your jurisdiction? What restrictions and exemptions apply in this regard?

In general, most non-Canadian citizens or permanent residents need a visa or an electronic travel authorisation (ETA) to travel to Canada. In some circumstances, some business visitors may only need their valid passports. Visa requirements, where applicable, also apply to temporary residents who are only transiting in Canada. The visitor visa covers all visitors, including those coming to Canada on business.

The Immigration and Refugee Protection Regulations define a 'business visitor' as someone who comes to Canada:

• to conduct international business activities without directly entering the Canadian labour market; or
• to visit temporarily to look for ways to grow business, invest or advance business relationships.

Business visitors must demonstrate that their main source of income and their main place of business are outside Canada. Business visitors can usually stay for up to six months.

Some business travellers are exempt from business visa requirements to visit Canada based on their citizenship or the nature of the business activities they will have during their trip to Canada. Article 190 and Schedule 1.1 of the Immigration and Refugee Protection Regulations (SOR/2002-227) provide various details concerning the related exemptions and restrictions. The Canadian government has created an interactive tool online to enable travellers to determine whether there is a need to apply for a visa or an ETA based on keys factors such as their country of citizenship (www.cic.gc.ca/english/visit/visas.asp).

2.2 Do the requirements vary depending on sector or purpose?

Immigration, Refugees and Citizenship Canada (IRCC) considers a series of criteria in order to issue visitor visas to business travellers. The criteria can vary depending on the business sector and the purpose of the business conducted by the person in Canada.

According to the requirements, business travellers looking to qualify as a business visitor to Canada must show that they:

• are coming for international business activities without directly entering the Canadian labour market;
• are coming to visit Canada temporarily to look for ways to grow business, invest or advance business relationships;
• plan to stay for less than six months;
• have a main place of business and source of income and profits outside Canada;
• have documents that support the visitor visa application; and
• meet Canada's basic entry requirements, including:
• • have a valid travel document, such as a passport;
  • have enough money for the stay and to return home;
  • plan to leave Canada at the end of the visit; and
  • are not a criminal, security or health risk to Canadians.

2.3 What is the maximum stay allowed for business visitors?

Business visitors can usually stay in Canada for up to six months.

If the business visitor can enter Canada, the border services officer may allow the person to stay for more or less than six months. The border services may issue a document, called a 'visitor record', to the business visitor in order to extend or restrict his or her stay in Canada. Business visitors must tell the border services officer if they intend to stay in Canada for more than six months. If a business visitor is allowed by the border services to stay more than six months, the border services will note the date by which the business visitor must leave Canada in his or her passport.

2.4 What activities are business visitors allowed to conduct while visiting your jurisdiction?

IRCC sets out a list of activities allowed for business travellers under the status of business visitor, as follows:

• buying Canadian goods or services for a foreign business or government;
• taking orders for goods or services;
• going to meetings, conferences, conventions or trade fairs;
• giving after-sales service as part of a warranty or sales agreement;
• being trained by a Canadian parent company of their employer outside Canada;
• training employees of a Canadian branch of a foreign company; and
• being trained by a Canadian company that has sold equipment or services.

Under the Canada-United States-Mexico Agreement, a US or Mexican national may also take part in other activities, such as research, marketing and general services.

The requirements are in constant evolution. In some specific situations – such as carrying out secretarial, managerial, technical or production activities, or staying longer than six months in Canada – the business visitor has no choice but to apply for a work permit.

In some circumstances, business visitors can be allowed to conduct business activities in Canada that usually require a work permit. This is the case where a business visitor is considered as "not planning to enter the Canadian labour market". As an example, IRCC considers that a foreign national is not directly entering the Canadian labour market if, for that person:

• the primary source of the remuneration for the business activity remains outside Canada;
• the principal place of business of the foreign national is located outside Canada; and
• the accrual of profits remains outside Canada.

A business visitor will also be allowed to work in Canada without the need for a work permit if the business activity of the foreign national is international in scope. As an example, IRCC considers that the business activities of a foreign national are international in scope if he or she:

• is not engaging with the general public in Canada; and
• is either purchasing for a foreign company or receiving training from a Canadian parent or subsidiary of a foreign company.

2.5 Is authorisation required for business visitors to provide or receive short-term training?

Business visitors can provide or receive short-term training in Canada under some circumstances. The immigration regulations, and particularly Paragraph 187(2) of the Immigration and Refugee Protection Regulation define the following individuals as business visitors for the purpose of Paragraph 186(1)(a):

1. foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services;
2. foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of goods or services that results from the training is incidental; (...)

IRCC considers that business visitors are normally allowed to:

• be trained by a Canadian parent company that they work for outside Canada;
• train employees of a Canadian branch of a foreign company;
• be trained by a Canadian company that has sold equipment or services to the business visitor;
• be trained by a Canadian company in product use, sales and other business transaction functions; and
• train prospective users or maintenance staff of the Canadian purchaser or leaser of specialised equipment obtained outside of Canada. This training service should take place after the installation has been completed.

This provision may also apply to a trainer or specialised installer pursuant to an after-sales contract by the foreign branch, as long as the service is provided company-wide and not just for the Canadian office.

3 Work permits

3.1 What are the main types of work permit in your jurisdiction? What restrictions and exemptions apply in this regard?

Work permits in Canada fall under one of two categories:

• the Temporary Foreign Worker Program; or
• the International Mobility Program (IMP).

The TFWP applies to all work permit applications pursuant to a labour market impact assessment (LMIA). This is the default work permit programme for most applicants who do not qualify for any of the exemptions to the LMIA requirement. It is considered a last resort to allow employers to hire foreign workers for jobs that demonstrably cannot be filled by qualified Canadians. This programme is led by Employment and Social Development Canada and is jointly administered with IRCC. Applications under the Temporary Foreign Worker Program are further divided between the High-Wage Stream and the Low-Wage Stream, based on whether the salary for the position filled is higher or lower than the median salary for the province in which it is located. LMIA requirements will vary based on the applicable stream.

The IMP applies to work permit applications that are exempted from LMIA requirements. The IMP aims to provide competitive advantages to Canada and benefits to Canadians abroad and is administered directly by Immigration, Refugees and Citizenship Canada (IRCC). It includes exemptions to the LMIA requirement based on, among other things:

• international trade agreements such as the Canada-United States-Mexico Agreement;
• reciprocal agreements on employment such as working holiday visas under International Experience Canada; and
• significant benefits to Canada, including in particular the Intra-Company Transfer Program.

3.2 What is the maximum stay allowed under each type of work permit? Can this be extended?

Work permits relying on an LMIA are given for the duration of the LMIA, which is typically one to two years. Such a work permit can be extended as long as a new LMIA is approved. However, the employer will need to demonstrate that its need for foreign workers continues despite its efforts to transition to a Canadian workforce.

Most LMIA-exempt work permits are valid for an initial duration of one to three years and may be extended. Some specific programmes may, however, be limited to a maximum total period of stay. A common example of such a programme is the Intra-Company Transfer Program, which can only be renewed up to a maximum stay of five to seven years.

Some other programmes – such as the Post-Graduation Open Work Permit and the International Experience Canada Program – are designed to offer a one-off opportunity to work in Canada in specific circumstances and may not be extended beyond their initial duration.

3.3 What criteria must be satisfied to obtain each kind of permit?

Specific criteria vary depending on the type of work permit application. However, applicants must establish the following in all cases:

• They will leave Canada upon the expiration of the work permit;
• They have enough money to take care of themselves and their family while they are in Canada and to return to their home country;
• They will obey the law and that they have no record of criminal activity;
• They are not a danger to Canada's security;
• They are in good health;
• They do not plan to work for an ineligible employer; and
• They do not plan to work for an employer offering sexual services;

3.4 Do any language requirements apply for each kind of permit?

Most work permits have no specific minimal language requirements.

However, according to Section 200(3)(a) of the Immigration and Refugee Protection Regulations, "an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought".

As a result, immigration authorities will assess whether the applicant's language skills in English or French are sufficient to reasonably allow him or her to perform the job for which he or she was hired.

This determination will take into consideration:

• LMIA requirements;
• working conditions as specified in the job offer;
• National Occupational Classification requirements for the specific occupation; and
• specific work conditions, including accommodations made by the employer to address an applicant's limited language ability.

If the immigration authorities have doubts as to whether the applicant can perform the work for which he or she was hired, his or her language ability can be assessed through an interview, official testing or in-house mission testing practice.

Specific language skills in English or French are required for application for permanent residence under most programmes.

3.5 Are any work permits subject to quotas?

There is no annual quota for work permits in Canada.

A few specific programmes – including, most prominently, the International Experience Canada Program – have limits on the number of applications accepted per country, but the vast majority of work permit applicants are not affected by these limits.

Most permanent immigration programmes, such as the skilled worker programme, are limited by annual targets.

3.6 Do any specific rules apply with regard to the following:
(a) Work in specific sectors?
(b) Shortage occupations?
(c) Highly skilled workers?
(d) Investors and high-net worth individuals?

(a) Work in specific sectors?

Specific exceptions to the general work permit regime apply to the following, among others:

• agricultural workers;
• academics;
• foreign workers whose position is essential to a television or film production;
• religious workers and charitable workers;
• repair and maintenance workers for industrial or commercial equipment;
• professional athletes or coaches;
• employees of foreign diplomatic missions and international organisations;
• camp counsellors; and
• dancers, actors, orchestral musicians or opera singers.

(b) Shortage occupations?

In general, Canada has no exemptions to usual work permit and LMIA requirements on the basis of shortage occupation.

The province of Quebec does have a list of in-demand occupations that entitle employers to a facilitated LMIA process. Employers applying under the facilitated process are not required to provide proof of their recruitment efforts. Furthermore, the requirement for a transition plan is waived for the first LMIA application request for the same occupation and same work location, but not for subsequent applications.

(c) Highly skilled workers?

Employers looking to recruit highly skilled workers may qualify to apply for a work permit under the Global Talent Stream if:

• the employee has been referred by one of the stream's designated partners and has a unique and specialised talent; or
• the position to be filled is in one of the in-demand occupations enumerated on the Global Talents occupation list.

Work permits under the Global Talent Stream benefit from a streamlined application process and a two-week processing time.

(d) Investors and high-net-worth individuals?

Investors and high-net-worth individuals looking to invest in an innovative new business may qualify for work permits and permanent residence under the Start-Up Visa Program.

Investors and high-net-worth individuals may also be eligible to apply for permanent residence under the Quebec Immigrant Investor Program (QIIP) or various provincial nominee programmes for entrepreneurs.

3.7 What are the formal and documentary requirements for obtaining each kind of permit?

The following documents are required to process a work permit application:

• Application for Work Permit made Outside of Canada (IMM 1295);
• Family Information Form;
• Schedule 1 – Application for temporary resident visa, if the applicant requires a visa to enter Canada;
• passport, valid for at least six months;
• two photographs;
• if the applicant is residing outside of his or her country of citizenship, proof of legal status in the country of residence;
• if accompanied by dependants, proof of relationship (eg, marriage certificate, birth certificate);
• proof that the applicant meets the requirements of the job offer (eg, CV, education credentials, proof of work experience);
• LMIA issued by Employment and Social Development Canada (ESDC) and a copy of the job offer, or an offer of employment number after submission in the IMP Employer Portal;
• if applying for a work permit in the province of Quebec, a valid Certificat d'Acceptation du Québec (CAQ);
• if applying for a post-graduation work permit, a final transcript and formal notice of graduation; and
• a police clearance from any country where the applicant has lived for six months or more since reaching the age of 18, if required by the local visa office.

In addition, a border services officer may ask for proof that the applicant has sufficient funds to support himself or herself for the first three months of his or her stay.

Medical tests are required from work permit applicants residing in specific countries.

3.8 What fees are payable to obtain each kind of permit?

Fees can vary depending on the type of work permit chosen.

The following fees apply to the vast majority of employer-specific work permit applications:

• LMIA fee (unless exempt): C$1,000
• If LMIA exempt, employer compliance fee: C$230
• Work permit application fee: C$155
• Biometrics fee: C$85
• If applicable, medical examination costs.

Additional fees apply to most applications made in the province of Quebec, as applicants must take the additional step of applying for a CAQ.

3.9 What is the process for obtaining a permit? How long does this typically take?

Applications for a work permit involve the following steps:

• For work permits that are not exempt from the LMIA requirement, the employer must first make an application to ESDC for an LMIA and wait for its approval.
• In the case of LMIA-exempt work permits under the IMP, the employer must first submit an offer of employment to IRCC through the Employer Portal and pay the employer compliance fee. An offer of employment number will then be generated.
• The applicant will then be able to directly submit a work permit application to IRCC using the LMIA or offer of employment number.
• The majority of applicants will be required to provide their biometrics (fingerprints and photographs) following the application.
• If applying from overseas, upon approval, the applicant will be granted a port of entry letter of introduction. The applicant must then present this letter at the port of entry upon arrival to Canada, where he or she will be given a work permit.

Applicants subject to LMIA requirements in the province of Quebec must also apply for a CAQ before applying for a work permit.

In specific circumstances applicants may be able to enjoy expedited 14-day priority processing times under the Global Skills Strategy.

Processing times for applications that do not qualify for 14 days priority processing will depend on processing times in individual visa offices and will vary from a few weeks to several months based on the applicant's country of origin.

The most up-to-date data on processing times may be found on the IRCC website at www.canada.ca/en/immigration-refugees-citizenship/services/application/check-processing-times.html.

3.10 Once a work permit has been obtained, what are the rights and obligations of the permit holder? What are the penalties in case of breach?

Work permit holders are entitled to work in Canada within the conditions of their work permit. They are also entitled to all the rights and protections granted to Canadian workers by the labour laws in the province where they are employed. These include:

• the right to a safe and healthy workplace;
• workers' compensation benefits in the case of an accident; and
• protection from unlawful dismissal.

Foreign workers must at all time comply with the conditions of their work permit. These conditions may include:

• a period of authorised stay in Canada;
• a specific employer;
• a type of work, as listed in the 'occupation' field of the work permit;
• a location of work; and
• times and periods of work.

Possible penalties for non-compliance with the conditions of the work permit include fines, prison terms, and expulsion from Canada. Consequences may also include an exclusion order barring the foreign worker from entering Canada for a period of up to two years.

4 Settlement

4.1 What are the criteria for obtaining settlement in your jurisdiction? What restrictions apply in this regard?

Foreign workers looking to immigrate to Canada permanently may qualify for permanent residence under the Federal Skilled Worker Program, the Federal Skilled Trade Program or the Canadian Experience Program, all of which are processed through the Express Entry system.

Applicants under these programmes must meet specific requirements regarding:

• their work experience in or outside of Canada;
• their language skills in French or English; and
• their education credentials.

The Skilled Trades Program also requires:

• experience in a skilled trade and a full-time job offer or a certificate of qualification in that skilled trade issued by a Canadian authority; and
• that applicants meet a minimum score on a points system based on their age, language skills, work experience, adaptability and whether they have a job offer in Canada.

Applicants who meet the minimal requirements of the programme are given a Comprehensive Ranking System (CRS) score based on a wide range of factors, including:

• age;
• education level;
• family in Canada
• work experience in Canada;
• work experience abroad;
• for skilled trades, whether they hold a certificate of qualification from a Canadian province;
• whether they have a job offer in Canada; and
• the profile of their spouse, if applicable.

Eligible applicants will be ranked based on their CRS scores and only the highest-ranking applicants will be selected to receive an invitation to submit a complete application.

Foreign workers may also be eligible for provincial nomination programmes. The requirements of these programmes vary according to the destination province.

In the province of Quebec, a foreign employee may qualify for permanent residence under the Regular Skilled Worker Program or the Quebec Experience Class.

4.2 Do any specific rules apply to foreign citizens with ancestral connections?

Individuals born prior to 17 April 2009 may be automatically eligible for Canadian citizenship if:

• they were born in Canada; or
• they were born outside of Canada and at least one of their parents is a Canadian citizen.

Individuals born on or after 17 April 2009 may be automatically eligible for Canadian citizenship if:

• they were born in Canada; or
• they were born outside Canada and at least one of their parents was born in Canada or became a naturalised citizen before their birth.

4.3 What are the formal and documentary requirements for obtaining settlement?

Applicants under the Express Entry programmes are assessed based on a wide variety of factors, and as a result must be ready to provide comprehensive documentation supporting their education, work history and knowledge of English or French. As additional points can be given for the education, work history and language skills of the applicant's spouse, full documentation should be prepared for both spouses whenever possible.

Applicants who have completed their education outside of Canada will be required to complete an educational credential assessment to determine their degree's equivalent in the Canadian education system.

Applicants under the Skilled Worker Program and the Skilled Trades Program must also establish that they have enough money for themselves and their family to settle in Canada, unless the applicant is currently authorised to work in Canada and has a valid job offer from an employer in Canada.

The applicant and their dependants will need to undergo a medical examination prior to being granted permanent residence. An applicant may be found inadmissible for immigration to Canada if he or she or his or her dependants suffer from a medical condition that will cause a danger to public health or safety, or will result in an excessive demand on health or social services.

Applicants must also provide a criminal background check and may be inadmissible for immigration to Canada if they have a criminal record.

4.4 What fees are payable to obtain settlement?

The following fees apply to applications for permanent residence under the Express Entry programmes:

• Processing fee: C$825 per person
• Right of permanent residence fee: C$500 per person
• Processing fee for dependent child: C$225 per child
• Biometrics fee: C$85 per person.

Additional costs payable to third parties include the fees for the educational credential assessment and the medical examination costs.

Applications submitted for immigration to the province of Quebec will incur the following processing fees in addition to those listed above:

• Principal applicant: C$822
• Spouse or common-law partner: C$176
• Each dependent child: C$176

Fees are updated as of 1 June 2021.

4.5 What is the process for obtaining settlement? How long does this typically take?

Applications under the Skilled Worker Program, the Skilled Trade Program and the Canadian Experience Program must be made through the Express Entry system and involve the following steps:

• The applicant must first submit an online expression of interest.
• Every few weeks, Immigration, Refugees and Citizenship Canada (IRCC) sends invitations to apply (ITAs) to the applicants with the highest CRS scores.
• Once the ITA has been received, a full application must be submitted along with all necessary supporting documents.
• Upon approval, applicants outside Canada will receive a confirmation of permanent residence to present at the port of entry. Applicants within Canada must make an appointment for an interview at their local IRCC office.

IRCC aims to complete the processing of all applications under the Express Entry programmes within six months of submission of the full application. However, the time required to receive an ITA will vary considerably based on the profile of the applicant.

In the province of Quebec, applicants must receive a Certificat de Selection du Québec (CSQ) from the Ministry of Immigration, Francisation and Integration before applying for permanent residence.

Current processing times for permanent residence applications under the Quebec Skilled Worker Program or Quebec Experience Class are:

• approximately six months for the processing of the CSQ application; and
• approximately 15 to 17 months for the processing of the permanent residence application by IRCC.

The most up-to-date data on processing times may be found on the IRCC website at www.canada.ca/en/immigration-refugees-citizenship/services/application/check-processing-times.html.

4.6 Is the settlement process the same for EU citizens?

The permanent residence application process is the same for EU citizens.

5 Dependants

5.1 What are the criteria to qualify as a dependant? What restrictions apply in this regard?

According to Canadian regulations, family members may qualify as dependants of the main applicant for immigration if they are:

• the 'spouse', defined as a legal marriage partner. This term includes both opposite and same-sex relationships, but does not include common-law partnerships;
• the 'common-law partner', defined as a person who has been living with another person in a conjugal relationship for at least one year. The term refers to opposite-sex and same-sex relationships;
• a dependent child;
• the dependent child of the spouse or common-law partner of the main applicant; and
• a dependent child of a dependent child.

For immigration purposes, the age limit of a dependent child was changed by the Canadian authorities from 'under 19 years old' to 'under 22 years old' at the time of the submission of the immigration application. This change applies to all new applications received on or after 24 October 2017. According to Canadian regulations, there are specific requirements to meet the definition of 'dependent child' for immigration purposes. A dependent child must be in one of the following situations when the immigration application is formally submitted:

• be under 22 years of age and not have a spouse or partner; or
• be 22 years of age or older, having depended substantially on the financial support of his or her parents since before the age of 22, and be unable to support himself or herself financially due to a physical or mental condition. (The financial dependency must have been continuous and ongoing since before reaching the age of 22. The physical or mental condition need not have existed before the age of 22.)

The dependent child's age is locked when the complete application is received by the Canadian government. A dependent child who does not have a physical or mental condition must remain unmarried and not in a common-law relationship for the entire duration of the processing of the permanent residence application, up until the point of becoming a permanent resident.

The Canadian authorities offer an online interactive tool to determine whether the child of the main applicant qualifies as a dependant: www.cic.gc.ca/english/immigrate/sponsor/aod-tool.asp.

5.2 What rights do dependants enjoy once admitted as such?

Qualified dependants can be formally included by the main applicant for the processing of the permanent residence application. Once they are admitted as permanent residents, they can enjoy the same rights as the main applicant.

If they are qualified for the family reunion programme, the dependants can also be sponsored by the applicant following the specific immigration requirements.

In some cases, the qualified dependent spouse or common-law partner may be able to apply for an open work permit. When the main applicant submits a permanent or temporary application to Canada, he or she may choose to include dependent children when they meet the definition as per Canadian regulations. The dependent children must apply for their own visitor visa or study or work permit, but they can submit the applications together with the main applicant either online or in the same application package. For some categories of applications, the main applicant can pay the family fee and use one payment receipt for all the applications.

5.3 How are civil/unmarried partners and same-sex partners treated in this regard?

Canadian regulations include civil/unmarried partners and same-sex partners as dependants for immigration purposes if they meet specific legal requirements. The Canadian regulations use the concept of 'common-law partner' or 'conjugal relationship' to designate unmarried partners. In the context of immigration, many criteria and key definitions are considered by Immigration, Refugees and Citizenship Canada (IRCC) to consider a civil/unmarried partner for immigration.

The key criteria used by IRCC to assess the relationship include the following:

• A 'common-law partner' refers to a person who is living in a conjugal relationship with another person (opposite or same gender) continuously for a period of at least one year. A conjugal relationship also requires a significant degree of commitment between two people, as evidenced by sharing a home, providing each other with financial and emotional support, having children together or presenting themselves in public as a couple;
• It is possible for common-law partners who are unable to live together to qualify if they have been in a conjugal relationship for at least one year and are unable to live together due to legal restrictions in their country of origin or due to reasons beyond their control, such as armed conflict;
• The conjugal partnership category requires that both common-law partner status and marriage is impossible, typically due to marital status or sexual orientation, and that this causes a barrier to immigration. This category applies only to the family class and applies only to foreign citizens outside of Canada sponsored by a Canadian citizen or permanent resident living in Canada; and
• The term 'spouse' is defined as either of the two persons (of opposite or same gender) in a marriage legally recognised in the country in which it took place, as well as in Canada. IRCC will not consider a marriage valid if one or both parties were not physically present at the time of the union.

6 Intra-company transfers

6.1 Is there a specific regime for the transfer of employees from an overseas branch of a multinational to your jurisdiction?

Employees who are transferred from an overseas branch of a multinational to its Canadian branch can often qualify for the Intra-Company Transfer category of the Significant Benefits to Canadian Interests section of the International Mobility Program (IMP).

Employees transferred to a position in an executive, senior managerial or specialised knowledge capacity are considered to provide a significant benefit to Canadian interests as per Immigration and Refugee Protection Regulation 205(a), through the transmission of their specialised knowledge and skills to a Canadian company. As a result, these positions are exempted from applying for a labour market impact assessment before applying for a work permit, therefore greatly simplifying and accelerating the application process.

This applies to foreign employees from any country, although different regimes may be available under Canada's various free trade agreements, including the Canada-United States-Mexico Agreement.

6.2 What is the maximum stay allowed under this regime? Can this be extended?

Work permits issued under the Intra-Company Transfer scheme are typically valid for an initial period of up to three years, or one year for new start-ups.

The work permit may be renewed if the following criteria are met:

• The Canadian and foreign companies still have a qualifying relationship;
• The Canadian company has engaged in the continuous provision of goods or services for the past year; and
• The Canadian company has been staffed.

An employee may remain in Canada under the Intra-Company Transfer Scheme only for a maximum duration of seven years for executives and senior managers and five years for specialised knowledge workers. At this point, the employee must spend one full year of employment outside Canada before again being eligible for the Intra-Company Transfer scheme.

6.3 What criteria must the employer satisfy to obtain a permit under this regime?

The employer must satisfy the following requirements in order to qualify for the Intra-Company Transfer scheme:

• The multinational must be a parent, a subsidiary, a branch or an affiliate of the Canadian company where the employee is being transferred; and
• The Canadian company must be a legitimate and continuing establishment of the multinational.

In addition, the employee must meet the following requirements:

• The employee must have been working continuously for the foreign company for at least one year out of the last three years;
• The employee must be being transferred to a position in an executive, senior managerial or specialised knowledge capacity; and
• The employee must be coming to Canada for a temporary period and not permanently.

Companies that are new start-ups in Canada may qualify for the Intra-Company Transfer regime if they meet the following requirements:

• The company has secured physical premises to house the Canadian operation. However, cases involving senior managers or executives may be considered before premises have been secured;
• The company must provide realistic plans to staff its new operation;
• The company must have the financial ability to start business in Canada and pay its employees;
• In cases involving executives or senior managers, the company must demonstrate that it will be large enough to support an executive or management function; and
• In cases involving specialised knowledge workers, the company must demonstrate that it is expected to be doing business, and that the work of the specialised knowledge worker will be guided and directed by management at the Canadian operation.

6.4 What are the formal and documentary requirements to obtain a permit under this regime?

In addition to the documents that are usually required for a work permit application, the following documentation is required for an intra-company transfer application:

• confirmation that the foreign worker is the employee of a multinational outside Canada and is being transferred to its parent, subsidiary, branch or affiliate in Canada;
• proof that the foreign worker has been continuously employed in a similar full-time position in the multinational outside Canada for at least one year during the three years preceding the date of initial application, such as payroll or employment contract;
• an outline of the applicant's position in an executive, managerial or specialised knowledge position outside Canada;
• an outline of the applicant's position in an executive, managerial or specialised knowledge position in Canada;
• in the case of a specialised knowledge worker, proof that the employee holds specialised knowledge and that this knowledge is required for the position in Canada; and
• a description of the relationship between the Canadian company and its foreign counterpart. Proof of this relationship may be requested.

6.5 What fees are payable to obtain a permit under this regime?

The following costs apply to Intra Company Transfer work permit applications in Canada:

• Employer compliance fee: C$230
• Work permit application fee: C$155
• Biometrics fee (except US citizens): C$85
• If applicable, medical examination costs

Fees are updated as of 1 June 2021.

6.6 What is the process for obtaining a permit? How long does this typically take?

A foreign worker will need to go through the following steps to secure a work permit under the Intra-Company Transfer scheme:

• The employer must first submit an offer of employment to Immigration, Refugees and Citizenship Canada (IRCC) through the Employer Portal of the IMP and pay the employer compliance fee. An offer of employment number will then be generated.
• The applicant will then be able to directly submit a work permit application using this offer of employment number.
• Applicants will normally be required to provide their biometrics (fingerprints and photograph) following the application.
• If applying from overseas, upon approval, the applicant will be granted a port of entry letter of introduction. The applicant must then present this letter at the port of entry upon arrival to Canada, where he or she will be given a work permit.

Applicants under the Intra-Company Transfer scheme may be able to enjoy expedited 14-day priority processing under the Global Skills Strategy if their occupation is listed in Skill Type 0 (management) or Skill Type A (professional) of the National Occupational Classification.

The processing times for applications that do not qualify for 14-day priority processing will depend on the processing times in individual visa offices and will vary from a few weeks to several months based on the applicant's country of origin. The most up-to-date data on processing times may be found on the IRCC website at www.canada.ca/en/immigration-refugees-citizenship/services/application/check-processing-times.html.

7 New hires

7.1 Are employers in your jurisdiction bound by labour market testing requirements before hiring from overseas? Do any exemptions apply in this regard?

A labour market impact assessment (LMIA) is typically required before hiring a new employee from overseas.

A wide variety of exceptions to the LMIA requirement exist, including:

• the Global Talent Stream;
• International Experience Canada;
• the French Mobility Programme;
• the Post-Graduation Open Work Permit;
• the Open Work Permit for recent Hong Kong graduates; and
• exceptions under Canada's free trade agreements.

7.2 If labour market testing requirements apply, how are these satisfied and what best practices should employers follow in this regard?

In order to secure an LMIA approval, employers must meet stringent requirements regarding their recruitment and position advertising process. These requirements vary according to the wages associated with the position. Positions that command a salary exceeding the median wages of the province in which the position is located are considered high-wage positions; while those below this threshold are considered low-wage positions.

Before applying for an LMIA, the position must have been advertised using at least three methods of recruitment – including the government of Canada's Job Bank and its Job Match service – for a period of no less than four consecutive weeks in the three months prior to the LMIA. At least one of the three recruitment activities must remain ongoing until the decision is issued. Qualified applicants recommended by the Job Match service must be invited to apply.

The wages offered must be similar to those paid to Canadian employees in the same job and location. In addition, the job posting should not contain any language requirement other than English or French, unless a clear justification for this requirement can be provided.

Employers are advised to keep detailed records of their recruitment and advertising efforts in order to facilitate their LMIA applications.

Employers that apply for a position under the high-wage stream must also provide a transition plan, which is valid for the duration of employment, detailing what activities it will undertake to reduce its reliance on foreign workers. If a transition plan has been provided in the past for the same position, the employer must report on the progress made on the commitments made under the previous transition plan.

Employers may not hire more than 10% of their workforce under the low-wage stream. However, this does not apply to employers with fewer than 10 employees.

Please consult the website of Economic and Social Development Canada (EDSC) for a complete list of requirements for both the high-wage and low-wage streams.

7.3 Which work permits are primarily used for new hires? What is the process for obtaining them and what fees are applicable, for both employer and employee?

Applications for a work permit under the Temporary Foreign Worker Program (TFWP) involve the following steps:

• The employer must first make an application to EDSC for an LMIA.
• Once the LMIA decision letter has been issued, the applicant will be able to submit a work permit application to Immigration, Refugees and Citizenship Canada directly.
• Applicants will normally be required to provide their biometrics (fingerprints and photograph) following the application.
• If applying from overseas, upon approval of the work permit application, the applicant will be granted a port of entry letter of introduction. The applicant must then present this letter at the port of entry upon arrival to Canada, where he or she will be given a work permit.

In addition, foreign workers may require a medical examination, depending on their country of residence within the last year.

The process for employers in the province of Quebec is slightly different, as they must first successfully make an application to the Ministry of Immigration, Francisation and Integration for a Certificat d'Acceptation du Québec before applying for a work permit, in addition to applying for an LMIA.

The following costs are applicable to work permit applications under the TFWP:

• LMIA fee (unless exempt): C$1,000
• If LMIA exempt, employer compliance fee: C$230
• Work permit application fee: C$155
• Biometrics fee: C$85
• If applicable, medical examination costs.

Applications submitted in the province of Quebec will incur the following costs in addition to those listed above:

• Application fee for an assessment of a job offer's impact on the Quebec job market: C$205
• Application fee for temporary selection for a temporary foreign worker: C$205

Fees are updated as of 1 June 2021.

7.4 Is labour market testing required if the new hire is to extend his or her residence?

A new LMIA is required at the moment of renewal.

If a transition plan was required in the initial LMIA application, the employer will be required to report on the progress made on the commitments made under this transition plan, in addition to meeting the other requirements of the LMIA.

7.5 Can new hires apply for permanent residence?

New hires may apply for permanent residence under several different programs.

Outside the province of Quebec, foreign employees living in Canada under a work permit may qualify for the Federal Skilled Worker Program, the Federal Skilled Trade Program or the Canadian Experience Program. In the province of Quebec, a foreign employee may qualify under the Regular Skilled Worker Program or the Quebec Experience Programme. These programmes are explained in further detail above in question 4.

In both cases, work experience in the jurisdiction and a validated job offer can greatly contribute to reaching the required threshold to qualify for permanent residence.

8 Sponsorship

8.1 Are any licences or authorisations required to sponsor foreign nationals? What other criteria apply in this regard?

No specific licences or authorisations are required to sponsor a foreign worker. However, employers must meet the specific requirements of the applicable work permit stream.

An employer that requires a labour market impact assessment (LMIA) must be able to demonstrate to Employment and Social Development Canada (ESDC) the following:

• It is a genuine and legitimate business;
• It has no past compliance issues in the employment of foreign workers;
• It can fulfil all of the terms of the job offer, and in particular that it has the financial capacity to pay for the salary agreed;
• It is providing a good or service in Canada; and
• The employment offered is consistent with the needs of its business.

An employer filling a position exempt from the LMIA through the International Mobility Program (IMP) must be able to establish that it meets the requirements of the specific stream applicable.

8.2 What obligations do sponsoring employers have to ensure continued immigration compliance?

Employers must at all times meet the requirements of the Immigration and Refugee Protection Regulation, as well as any requirements listed in the LMIA or the conditions of the offer of employment and the conditions of the work permit.

Furthermore, employers must immediately report any significant change to the working conditions of the foreign worker. In the case of work permits under the Temporary Foreign Worker Program (TFWP), employers must maintain the occupation, wages and employment conditions listed in the LMIA. Under the IMP, employers must substantially maintain the occupation, wages and employment conditions as per the offer of employment. Significant changes to these conditions may mean that a new LMIA or offer of employment and work permit are necessary.

It is also particularly important for employers to retain all documentation relevant to the employment and recruitment of the foreign worker for a period of a least six years, beginning at the moment of issuance of the work permit. This includes all documents relevant to the LMIA if applicable, or to the offer of employment in the case of applications under the IMP.

8.3 Are sponsoring employers subject to any local training requirements?

Employers applying for an LMIA under the high wage stream must submit a transition plan explaining how they intend to reduce their reliance on foreign workers. The transition plan includes detailed undertakings to recruit, retain and train Canadian citizens and permanent residents. The employer's progress against the goals listed in the transition plan will be assessed by ESDC when applying for subsequent LMIAs.

8.4 How is compliance with the sponsorship regime monitored? What are the penalties for non-compliance?

Employer compliance inspections can be triggered in the following circumstances:

• due to a known history of non-compliance with the conditions of the TFWP or IMP by the employer;
• as a result of random selection; or
• based on information giving an officer reason to suspect non-compliance from the employer, such as a complaint from the public or information from ESDC or the Canada Border Services Agency.

Inspections may be conducted by Immigration, Refugees and Citizenship Canada (IRCC) or by ESDC. An inspection may take place at any time from the first day of employment for which a work permit is issued up to six years later.

Employers that are found to be non-compliant may be faced with a wide range of penalties, including:

• warning letters;
• monetary penalties ranging from C$500 to C$100,000 per violation, up to a maximum total of C$1 million per year;
• a ban from hiring foreign workers through the TFWP or the IMP for a period of one, two, five or 10 years; and
• for the most serious violations, a permanent ban from hiring temporary foreign workers through the TFWP or the IMP.

Furthermore, the names of non-compliant employers are published on the IRCC website and LMIAs issued to these employers may be suspended or revoked.

9 Trends and predictions

9.1 How would you describe the current immigration landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The Canadian 2021‒23 Immigration Levels Plan sets out a path for responsible increases to immigration targets to help the Canadian economy recover from COVID-19, drive future growth and create jobs for middle-class Canadians. The Canadian government recognises that the pandemic has highlighted the contribution of immigrants to the wellbeing of Canadian communities and across all sectors of the economy.

The government has confirmed that although Immigration, Refugees and Citizenship Canada (IRCC) continued to accept and process applications throughout the pandemic, the global travel restrictions and capacity constraints led to a shortfall in admissions over the last several months. Canada aims to welcome 401,000 new permanent residents in 2021, 411,000 in 2022 and 421,000 in 2023 in order to compensate for this shortfall and fill crucial labour market needs in order to remain competitive on the world stage.

In this context, Canada will continue in the coming years to pay specific attention to the selection of immigrants in the economic class, which account for about 25% of all the immigrants Canada welcomes each year. The federal government also launched a new programme in 2021 to provide accelerated permanent residence pathways to essential workers and international graduates. Some 90,000 additional individuals living in Canada will be able to begin to apply for permanent residence in 2021.

10 Tips and traps

10.1 What are your top tips for businesses seeking to recruit talent from abroad and what potential sticking points would you highlight?

In a world where businesses are competing with each other to recruit international talent, it is critical for them to put in place a comprehensive approach in order to be able to attract and retain them. They should not hesitate to ask for advice from professionals on the following important points:

• Qualified immigration professionals should be consulted to research and determine what immigration programmes best suit the specific needs of the business, as well as the responsibilities of the business under these programmes.
• Since the steps and processing time of international recruitment can sometimes be long and complex, it is essential to plan as early as possible for future needs for foreign employees. Clear and precise job descriptions, open recruitment practices and accurate assessment processes will help businesses to select the best workers for the job.
• It is important to be visible in order to attract good potential international candidates. Businesses must make efforts to be visible on different platforms to attract the best talent, such as specialised international recruitment websites, social media, involvement with the relevant local immigration employment council, associations, organisations or networks that match employers with skilled potential immigrants, and participation in international job fairs.
• Businesses should implement culturally sensitive evaluation practices in order to target and evaluate foreign talents more efficiently. They should improve their cross-cultural recruiting efforts by implementing effective techniques for screening and interviewing immigrant professionals.
• It is important for businesses to explain carefully how they will assist foreign talents to make a smooth transition to their new work in a new country. For example, businesses could set up mentoring programmes within the company for newcomers, see whether some relocation expenses can be covered, help new foreign employees to find a place to live, provide professional language and communication skills training programmes and so on.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.