Exploring Canadian Solutions to US Immigration Problems

Canada has increasingly become a destination for foreign (ie, neither Canadian nor American) professional employees of US companies. The foreign staff of US companies have found it increasingly impossible in recent years either to secure an H-1B work visa through the annual lottery, or to further extend their existing work-authorised visa status. Most US work visas are limited by a “final expiration date”, after which further extensions are impossible. The Canadian government has recently seen an opportunity amidst this American crisis by offering ways to allow foreign workers to remain on the North American continent, if not quite in the United States. Thus, in the summer of 2023, the Minister for Immigration, Refugee and Citizenship Canada (IRCC) made several announcements under its “Tech Talent Strategy” which US employers might explore to assist valued foreign staff who are facing the “US visa cliff”.

The Canadian announcement that caused the most excitement was the since-closed “H-1B visa holder work permit”. This new Canadian work permit category granted an open Canadian work permit for up to three years for H-1B visa holders residing in the United States. This programme proved so popular that all available Canadian work permits under this programme were claimed within 48 hours upon opening. Many foreign workers who could not take advantage of this programme in 2023 are anxiously waiting to learn whether IRCC will reopen this particular stream of work permits in 2024.

The buzzword “digital nomads” became very popular during the COVID-19 global pandemic, as employers adopted and maintained “work from home” policies for at least some fraction – if not the entirety of – the work week. While Canada has no dedicated “digital nomad” visa category like some other countries, the IRCC Minister announced that digital nomads need not possess a Canadian work visa to reside and work within Canada for an employer based outside of Canada. Instead, the Minister declared that such remote workers need only lawful Canadian “visitor” visa status to relocate to Canada for up to six months at a time, while they perform their job remotely for a foreign (and typically US-based) employer.

To qualify as a business visitor to Canada, visa applicants must demonstrate adequate money to support themselves for the duration of the visit to Canada. Doing so helps establish that (i) the visitor visa applicant will not enter the Canadian labour market; and (ii) the main place of business as well as income and profits will remain outside of Canada. Even so, Canadian visa officers have great discretion in determining whether someone ought to receive a visitor visa under the digital nomad programme. For example, what if the visa applicant lacks adequate savings to support themselves “but for” working remotely? This may cause the officer to question whether the person genuinely qualifies as a business visitor under Canadian rules. Or, suppose a multinational employer happens to maintain a branch office in Canada, but the individual plans to work exclusively for the employer’s ex-Canada office? A Canadian visa officer may be understandably sceptical as to whether the person will truly work for the ex-Canada office, or is simply circumventing Canada’s immigration requirements.  Moreover, suppose a foreign employee has run out of US work authorisation, and the employee incorrectly assumes they can work in Canada as an “independent contractor”? There is a separate start-up visa stream for those seeking landed immigrant status in Canada. It is possible that a Canadian visa officer would subject the application to the more onerous strictures of that stream instead. These types of questions are why a dedicated digital nomad system is preferable – the vagueness of the rules makes it impossible to predict a successful result in advance of applying.

Given the fluidity of the “digital nomad” approach and the closed “H-1B visa work permit” stream, there are various bona fide Canadian work permit options worth considering. On an exceptional basis, certain work permit options based on trade agreements require foreign employees to be citizens of a select number of countries. However, it is worth examining the default options, as those were also a focus for the Minister of IRCC’s proposals.

Canada’s proposed Global Skills Strategy aims to provide faster application processing times, work permit exemptions and enhanced customer service for professional and managerial roles. While the target processing time of two weeks still remains only a goal and not yet a reality, it is encouraging that IRCC plans to address processing times, given that there is no analogue to the “premium processing” expedited process available within the US immigration system.

An important consideration that employers should be aware of is that generally, sponsoring Canadian work permits will be an option only if the employer has a corporate entity established in Canada. Further, officers typically expect that the Canadian entity will have a physical office location where the employee will work. “Work from home” arrangements may prove difficult given those expectations.

The ICT work permit is worth considering for foreign employees who have worked at the office of a multinational corporation located outside of Canada for at least one year in the last three years in an executive, senior managerial, or specialised knowledge capacity. Fortunately, there are many similarities between the US “L‑1 intracompany transferee” visa category, and Canada’s ICT work permit programme, so employers familiar with the US L-1 visa category will be familiar with many ICT parameters. Even so, there are some notable differences between the Canadian ICT work permit and the American L‑1 work visa, particularly with respect to so-called specialised knowledge workers. Specifically, employers should be aware that all specialised knowledge Canadian ICT work permit applicants must demonstrate a high degree of both “proprietary knowledge” in addition to “advanced expertise” in their profession. Further, employers must keep in mind that there is a mandatory wage floor, and Canadian visa officers are trained to ensure that the wage (excluding bonuses) being offered to the employee is at least between the “median” and “high” applicable prevailing wage.

If neither a treaty-based work permit nor an ICT work permit is applicable, another common way to enter Canada as a temporary foreign worker is based on a work permit supported by a “Labour Market Impact Assessment”, or LMIA.

An LMIA is a test of the Canadian labour market meant to ensure there are no qualified Canadians who are willing and able to take the sponsored role before the employer can sponsor a foreign national for that role. An LMIA can be used to sponsor a Canadian role via temporary work permit application or permanent residence application. Notably, Canada’s government filing fee only applies when submitting an LMIA on behalf of a temporary foreign worker application.

Before an LMIA can be filed, mandatory recruitment must take place for four consecutive weeks within at least three months before the LMIA application is filed. Of the three mandatory recruitment steps, the sponsored role must be listed on the Canadian government’s Job Bank website, which is national in scope. For the two remaining mandatory recruitment steps, one step must also be national in scope. Furthermore, one step of the three mandatory steps must be ongoing while the LMIA application itself is pending, typically for several months.

The mandatory recruitment steps involved in the LMIA process often result in a qualified Canadian job applicant stepping forward. Once a qualified Canadian job applicant is identified, the LMIA sponsorship process for that role (as advertised) must stop. For this reason, LMIA is the option to consider only after other avenues have been exhausted.

The GTS is a sub-type of LMIA, comprised of two streams: Category A and Category B. Employers can participate in Category A if they receive a referral from one of the stream’s designated referral partners. As such, Category B is generally the default, because it is instead based upon the Global Talent Occupations List, which lists professions predominantly in information technology, engineering, and even digital media design.

The main difference between the “GTS LMIA” and the standard LMIA is that advance recruitment is not mandatory, merely “encouraged”. What employers must instead provide is a Labour Market Benefits Plan (LMBP) that must be approved by Employment and Social Development Canada (ESDC) with a set of defined commitments anticipated to create lasting, positive impacts on the Canadian labour market. The relevant types of commitments include job creation, investment in skills and training, transferring knowledge to Canadians and permanent residents, enhanced company performance and implementing best practices or policies as an employer for the workforce.

To ensure the integrity of the programme, ESDC checks in with the employer annually to ensure progress is being made toward the LMBP commitments. At the final annual progress meeting, ESDC anticipates that all the commitments will be met by the end of the GTS work permit validity period (up to three years). If the commitments in the LMBP are not met, the company’s ability to use the programme in the future may be jeopardised. That said, it is possible to show that good faith efforts were made to meet the commitments when ESDC does annual progress meetings, to ensure the commitments are being met.

While these new Canadian streams may not address every issue employers face in dealing with the US immigration issues of their employees, knowing the latest Canadian work permit programmes can provide a “North American” option for foreign staff who find it increasingly difficult to maintain work authorisation within the United States.