By Brittany Trafford

It is no secret that employers in Atlantic Canada are struggling to fill labour gaps. In June 2019 the Atlantic Canada Opportunities Agency (ACOA) published a report^[1] indicating that the overall labour force in Atlantic Canada is shrinking and more than 229,000 Atlantic Canadians are expected to retire between 2019 and 2029. In 2020, ACOA estimated that Atlantic Canada’s economic growth between 2019 and 2040 was expected to be a full percentage point lower than the national growth rate as a result of an aging population.^[2]  Recent indicators show an increase in full-time jobs in Atlantic Canada and an unemployment rate of 7.1%, which is the lowest in many years in this region.^[3]

The solution many have started to turn to in Atlantic Canada is immigration. Indeed, the Government has set high goals for skilled immigration across Canada, including for the Atlantic Provinces.^[4] However, the global pandemic in 2020 and 2021 resulted in a multitude of obstacles against international movement generally and specifically against entrance to Canada. The result of the COVID-19 pandemic also meant that, even when foreign nationals could travel to Canada again, their applications for permits were stuck in long processing queues as a result of huge backlogs.

Canadian border restrictions related to COVID-19 finally lifted in September 2022 and Immigration, Refugees and Citizenship Canada have recently undertaken to try to elevate their processing backlogs.^[5] As a result, there is a renewed energy and focus on immigration as a viable means to address labour shortages in Atlantic Canada.

As employers look to foreign nationals as a solution to their labour issues, there are a few things they need to keep in mind. This article explores some basics of hiring a foreign national, including employer obligations and other important considerations.

Ensure Legal Authorization to Work in Canada

As an employer hiring a foreign national, you must ensure they have proper authorization to work for your company in the role you are offering them. An employer cannot ask details about their citizenship specifically, as this can lead to claims of discrimination, but they will need to ask for confirmation that the individual can legally work in the capacity in which they are being hired. In the case of a temporary foreign worker, this means obtaining and reviewing the work permit (or study permit) to ensure it is valid and properly authorizes the contemplated work. Failure to complete this step by exercising due diligence is an offence under the Immigration and Refugee Protection Act.

The foreign national may have a permit that is “open,” meaning it does not restrict the position they can work in or employer they can work for. However, if they do not have an “open” permit, they will need to have a permit that specifically authorizes them to work for your company in the proper role and location.

It is essential that any job offer to a foreign worker includes a condition that the individual obtain and maintain legal authorization to work in Canada. Employers will want to track the expiry dates of any permits and ensure ongoing authorization to work in Canada. A copy of the work permit should be kept in the personnel file as this will provide evidence of compliance should an employer ever be audited for immigration purposes.

Support Foreign National’s Work Permit Application, if Necessary

If someone does not already have an open work permit or study permit allowing them to work, and is not eligible to obtain one of these documents, they will need to qualify for an employer-specific (or “closed”) work permit. There are many different types of permits, but it is not as simple as just sending in an application along with a job offer. The individual must fit within a specific category of work permit and demonstrate eligibility for that type of permit.

In many cases, when recruiting from outside Canada, the employer will need to support the individual’s application for a work permit. This may mean completing a Labour Market Impact Assessment (“LMIA”) application under the Temporary Foreign Worker Program or an Online Offer of Employment under the International Mobility Program.

The default for most foreign nationals without open permits is that they will need their employer to obtain an LMIA in support of their application. In some cases, there may be an LMIA-exemption where there is an applicable International Mobility Program category for a permit. This includes, but is not limited to, permits based on international free trade agreements, intracompany transferees, and some permits based on eligibility for a Permanent Residency Program.

Finding the right work permit program and determining what the employer must do to support the work permit application is a key step for employers and their new hires.

Complete Registration if Required

Some Provinces in Atlantic Canada require that employers register with the Province if employing foreign nationals. As a result, this is an extra step you may be required to take and maintain.

Be Realistic About Timelines

In some cases, an individual can apply for a permit at the port of entry to Canada, but in many cases, this is not a possibility. When someone cannot apply at the border to Canada they will need to make an application online. Online applications are processed by a Visa Office. Processing times for different Visa Offices can vary drastically, meaning that application processing can take weeks, or, in some cases, even months.

Employers must also be mindful that, whether their worker is applying at the border or from outside Canada, the individual must prove their eligibility for the permit. This will require them to gather documentation, including reference letters as proof of prior work experience, proof of education, and evidence of language ability (in some cases a language test may be required). Depending on where they are applying from, they will require additional documentation such police certificates and may need to undergo a medical exam. It can take time to gather the required documentation.

Finally, it is always possible that prospective employees may have criminal, medical, or other inadmissibility considerations that will prevent their work permit application from being approved.

As a result of the above, it is important to recognize that it may take time for the foreign national to be able to start working, and that there is never a guarantee their application will be approved. Planning ahead can help mitigate the impact to business operations when these issues arise.

Ask Questions, Be Weary

More and more employers are being approached by recruiters and international consultants who offer to help them hire foreign workers for their operations. Before agreeing to anything, make sure you understand your obligations as an employer, the details of how the individuals will apply for work authorization, and what your responsibilities (and costs) will be in the process. It is right to ask questions and make sure you understand what you are getting into as an employer.

Broad promises that everything will be done for the employer at no cost to them are too good to be true. You must be very careful that you are not unintentionally breaching any employer obligations in the Immigration and Refugee Protection Act and regulations. For example, certain applications require employers to pay for a foreign worker’s travel to and from Canada, and employers cannot recoup recruitment fees or LMIA fees from the worker. Recruiters and international consultants do not always make such obligations clear. If ever you feel pressured by a recruiter or advisor to change a job title or job description to better fit within a program without an intention to change the actual duties, know that this can constitute a misrepresentation and be considered an offence. In other cases, you may be asked to sign forms or submit other information to support an applicant for Permanent Residency, and you must understand what you are agreeing to when signing.

Further, in Nova Scotia, you may be restricted from using a licensed recruiter for foreign workers. You will need to ensure that you are not breaching this requirement if you move forward with a recruiter that approaches you directly.

Always seek advice from an immigration lawyer if you are unclear on your obligations or information you are receiving from a recruiter or consultant.

Review Policies and Consider Cultural Diversity Training

When increasing their workforce by adding foreign nationals, employers should ensure that they have proper harassment policies in place and may want to consider updating these policies. Employers are responsible for ensuring a workplace free of abuse when hiring foreign nationals, and an excellent place to start is a strong policy.

Employers may also consider cultural diversity training for management and employees as they add newcomers to their workforce. Cultural diversity training is a requirement for some programs, but it is something that other employers may consider even when not required to help ensure that newcomers and foreign workers are able to thrive in the workplace.

Conclusion

Immigration is a wonderful opportunity to grow our communities and workforces in Atlantic Canada. There are many immigration programs that aim to help employers address their labour gaps with foreign workers, but program success relies on employer engagement. It is essential that employers understand the processes, their responsibilities, and related compliance obligations when taking advantage of these programs. For many employers, hiring a foreign national is either a new effort or something they are considering expanding to grow their workforce. This means it is more important than ever for employers to learn how they can properly hire foreign workers and limit any risks or frustrations within the process. The more employers understand, the better and more straight forward the process will feel and the more likely it will be a success for both the employer and the foreign national.

This update is intended for general information only. If you have further questions about these programs or are an employer seeking to support your workers, please contact a member of our Immigration Group.

Click here to subscribe to Stewart McKelvey Thought Leadership.

[1] ACOA, An Exploration of Skills and Labour Shortages in Atlantic Canada,  https://www.canada.ca/content/dam/acoa-apeca/documents/ACOA%20Skills%20and%20Labour%20Shortages%20Report_EN.pdf, June 2019.
[2]  ACOA, The Labour Market in Atlantic Canada, https://www.canada.ca/en/atlantic-canada-opportunities/services/researchstudies10.html , March 5, 2020.
[3] Employment and Social Development Canada, Labour Market Brief, https://digitalnovascotia.com/wp-content/uploads/2022/08/LmiBrief-MTEnBref-AT-2022-07-EN-Final.pdf , July 2022
[4] IRCC, Notice- Supplementary Information for the 2022-2024 Immigration Levels Plan, https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2022-2024.html , February 14, 2022.
[5] IRCC, Tackling Immigration Backlogs to Help Canadian Businesses Grow, https://www.canada.ca/en/immigration-refugees-citizenship/news/2022/08/tackling-immigration-backlogs-to-help-canadian-businesses-grow.html , August 24, 2022