Hiring Foreign MaPS and AUPE Staff
General Hiring Rules
In order for the University of Calgary to mitigate any potential Employer Liability when recruiting for and hiring a foreign national there are general rules that must be followed. A contravention of the legal requirements concerning foreign workers is an offence with serious consequences.
- If a foreign national wishes to work in Canada they must be authorized to do so under the Immigration and Refugee Protection Act (IRPA), usually by a work permit.
- Normally, an employer must apply for a Labour Market Impact Assessment (LMIA) from Employment and social Development Canada/Service Canada before Immigration, Refugees and Citizenship Canada (IRCC) can issue a work permit.
- An application to obtain a work permit is processed outside of Canada at a Canadian visa post or port of entry.
- All foreign nationals seeking to enter Canada must not be inadmissible under the Immigration and Refugee Protection Act (IRPA).
A contravention of the legal requirements concerning foreign workers is an offence with serious consequences. In addition to a general provision which makes it an offence to contravene or fail to comply with any provision of the Immigration and Refugee Protection Act (IRPA), or any condition imposed thereunder, IRPA now specifically indicate that:
- Section 124(1) Every person commits an offence who:
(c) employs a foreign worker in a capacity in which the foreign national is not authorized under this Act to be employed.
(2) For the purposes of paragraph (1)(c), a person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized.
These provisions make it clear that there is a positive duty on employers to investigate the legal authority of their employees to work in Canada, failing which they will be held liable for an offence under the Act. As such, both employers and employees face potential punishment for violation of the Act. IRPA further provided that:
- Section 125 - A person who commits an offence under subsection 124(1) is liable
(a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both; or
(b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
There are other offences and penalties under the Act, including misrepresentations, aiding and abetting or counseling a misrepresentation (or withholding of material facts), and therefore, all participants in the immigration process should tread carefully. In addition to the penal elements noted above, an employee may also face the possibility of inadmissibility or removal.
While immigration makes the process unique, we continue to follow all principles and processes required in standard recruitment. The university’s policies and procedures are posted to the Policies and Procedures website. It is important to ensure you are familiar with those that fall under Human Resources, and any others that are relevant to your department or unit.
Your Talent Acquisition Advisor is always your point of contact during the recruitment process. Let your Talent Acquisition Advisor know when you anticipate international applicants for the role, or when you would like to look internationally for candidates.
The Talent Acquisition Advisor will advertise your position nationally and/or internationally as requested, and will refer you to HR Immigration Services for targeted assistance.
The role of the Immigration Consultant is to directly assist you in the recruitment and retention of temporary foreign workers to MaPS and AUPE. Contact an Immigration Consultant at email@example.com.
Sometimes we are aware of international candidates at the beginning of the competition, but most often we find the candidate through the recruitment process itself. When you have identified that the best candidate is a foreign national—whatever point that may be—you should immediately advise your Talent Acquisition Advisor.
Foreign national employees in MaPS or AUPE positions are hired by the university in one of three ways:
- Labour Market Impact Assessment (LMIA) hires
- LMIA-Exempt hires
- International Student hires
In June 2014, the Government of Canada announced reforms to the Temporary Foreign Worker Program (TFWP), which were intended to narrow the scope of the program to ensure that it is only used as intended, as a last and limited resort to fill acute labour shortages on a temporary basis when qualified Canadians are not available. The program has been split into distinct streams: the new Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP.)
The TFWP will now refer to only those streams under which foreign workers enter Canada at the request of employers following approval through a Labour Market Impact Assessment (LMIA). The new International Mobility Programs (IMP) will include those streams in which foreign nationals are not subject to an LMIA, and whose primary objective is to advance Canada’s broad economic and cultural national interest, rather than filling particular jobs. These new categories will improve accountability, with Employment and Social Development Canada being the lead department for the TFWP, and Immigration, Refugees and Citizenship Canada the lead department for the IMP.
Steps for Hiring
The LMIA is the authorization given by ESDC/Service Canada to employers to hire a foreign worker provided they can demonstrate that no qualified Canadian or permanent resident candidates could be found to fill the position. This authorization ensures that the offer of employment is genuine, and that the employment of the foreign worker will have a neutral or positive effect on the Canadian labour market.
ESDC has implemented a new approach for administering the Temporary Foreign Worker Program (TFWP) using the provincial or territorial median hourly wage rather than the National Occupational Classification (NOC) skill levels to set program requirements by stream. As a result of these changes, the specific requirements an employer must follow will be determined by the wage being offered for the position, in relation to the provincial/territorial median hourly wage, based on Statistics Canada’s Labour Force Survey.
After we have determined whether we are hiring a TFW for a high-wage position or a low-wage position, we must ensure that we meet all of the requirements for that stream including meeting the wage requirement. The university generally applies for a LMIA under the Stream for High-wage Positions, where the wage offered is at or above the current provincial median hourly wage of $26.40 per hour.
The position must be advertised in at least three different sources, in addition to the University’s Careers website, as follows:
- On the Government of Canada’s Job Bank:
- The advertisement must be posted for a minimum of four consecutive weeks starting from the first day the ad appears and is accessible to the general public.
- The advertisement must be posted during the three months prior to the employer applying for an LMIA.
- The advertisement must remain posted to actively seek qualified Canadians and permanent residents until the date a positive or negative LMIA is issued.
- Use two or more additional methods of recruitment consistent with the normal practice for the occupation:
- as a minimum, we must choose one method that is national in scope, since people in higher-skilled positions are often mobile and willing to re-locate for work;
- choose one or more recruitment sites from these: general employment websites (workopolis.com, monster.ca, etc.) and specialized websites dedicated to specific occupation profiles (accounting, marketing, biotechnology, education, engineering, etc.).
- The advertisement must be posted for a minimum of four consecutive weeks starting from the first day the ad appears and is accessible to the general public;
- The advertisement must be posted during the three months prior to applying for an LMIA.
Employers must demonstrate that the print media and websites used to advertise, target an audience that has the appropriate education, professional experience and/or skill level required for the occupation.
The advertisement must include the following information:
- Company operating name
- Business address
- Title of position
- Job duties (for each position, if advertising more than one vacancy)
- Terms of employment (e.g. project based, permanent position)
- Wage - a wage range can be used for the purposes of complying with the advertisement requirements; however, the minimum wage in the range must be the prevailing wage;
- Benefits package being offered (if applicable)
- Location of work (local area, city or town)
- Contact information - telephone number, cell phone number, email address, fax number, or mailing address; and
- Skills requirements: Education, Work experience
Recruitment advertising is placed through Human Resources –Talent Acquisition. Contact your Talent Acquisition Advisor for questions on preparation, placement and deadlines for recruitment advertising.
Ensure that at the start of the advertising, you print a copy of the advertisement from each site where it is posted, including the UCalgary Careers site (so that the date of printing is indicated at the bottom), and that you also print out a copy of the advertisement after the one month is completed (i.e., on the last day of the advertising period).
When we are aware of foreign national candidates at the beginning of a competition, this advertising is done as part of the regular posting process. When the foreign national candidate is found through the recruitment process, we are required to repost the position for the prescribed four weeks, and do the additional advertising.
When we re-post the position you must review all new applicants as thoroughly as in the first round.
Following the review of all candidates, we will have to demonstrate that no Canadian or permanent resident applicants were qualified for the position. Through the Recruitment Summary, we need to outline all recruiting efforts that were made to find qualified candidates. Additionally, for each unsuitable Canadian/permanent resident applicant, we need to provide an explanation as to why the candidate did not meet the requirements of the position. The rationale for each Canadian or permanent resident candidate must be tied to the advertised requirements for the position, in terms of educational credentials, skills, abilities and experience, and we should avoid comparing the foreign national’s qualifications with those of Canadian or permanent resident candidates.
A Labour Market Impact Assessment (LMIA) is an opinion provided by Employment and Social Development Canada (ESDC)/Service Canada under section 203 of the Immigration and Refugee Protection Regulations and upon which a determination by an officer of IRCC as to whether a job offer is genuine and whether the employment of the foreign national is likely to have a neutral or positive effect on the labour market on Canada.
Service Canada Assessment Criteria
- Genuineness – four elements as per [R200(5)];
- Labour Market Impact – 6 elements as per [R203(1)(b)
- the occupation that the foreign worker will be employed in
- the wages and working conditions offered; t
- the employer’s advertisement and recruitment efforts;
- the labour market benefits related to the entry of the foreign worker;
- the consultations, if any, with the appropriate union;
- and whether the entry of the foreign worker is likely to affect the settlement of a labour dispute.
- Consistency with the terms of any federal-provincial/territorial agreement where this applies to the employers of foreign nationals as per [R203(1)(c)];
- Substantially the Same (STS) – 3 elements as per [R203(1)(e). STS assessment: Over the past six years, the employer provided substantially the same wages, working conditions and employment in an occupation as those items set out in the offer of employment to the foreign national.
Documents Required to Apply for a Labour Market Impact Assessment
Once the recruitment process has been completed, we are required to prepare and submit to Human Resources Immigration Services the following documentation:
- Labour Market Impact Assessment Application– High Wage and Low-Wage Positions
As part of the information required on this form, for each unsuitable Canadian/permanent resident applicant, we must provide an explanation as to why the Canadian candidate did not meet the requirements of the position.
- Transition Plan (will be prepared by HR Immigration Services)
The Transition Plan must ensure that we have a firm plan in place to reduce our reliance on the Temporary Foreign Worker Program, and to transition to a Canadian workforce over the period of time covered by the LMIA. Through the Transition Plan, we must identify certain activities, for example improved advertising and marketing plans that will increase awareness of the University of Calgary; partnerships with organizations serving underrepresented groups to identify potential Canadians for recruitment; or in some cases facilitating the transition of our temporary foreign workers to permanent residence status in Canada. The identified activities must be measurable, and we are required to provide reports on the results of those activities each time we reapply for an LMIA for the same occupation.
- Advertising information: list of publications in which the advertisement appeared, with posting dates/rage; copies of the advertisement (as appeared in all publications/websites and with proof of posting dates/range).
For assistance with how to complete the LMIA application form, refer to the the Guide for completion of Labour Market Impact Assessment – High Wage and Low Wage Positions
There is no option to extend an LMIA, rather the whole process must be repeated to retain someone past their end date. High skilled LMIAs are usually issued for one to two years.
The completed Labour Market Impact Assessment Application– High Wage and Low-Wage Positions must be signed by the Faculty Dean or equivalent, prior to its submission to Service Canada.
Once the LMIA documentation is completed, HR Immigration Services will submit it to ESDC/Service Canada and will liaise with Service Canada officers throughout the assessment process.
Service Canada and IRCC processing times vary, hiring units are encouraged to submit the necessary documents to Human Resources – Immigration Services as early as possible in order to avoid delays in the new employee’s start date. Processing times may vary between eight to 12 weeks.
If the application is successful, Service Canada will issue and transmit to the HR Immigration Services office confirmation of a positive LMIA.
The Talent Acquisition Advisor will request the hire information (to be submitted using the Request for Offer Letter form) and will compose a Conditional Offer Letter. This letter, once reviewed by the Hiring Manager, is sent to the candidate along with the LMIA confirmation letter from ESDC/Service Canada, and the Job Profile. The LMIA Confirmation is valid for six months and the candidate must apply for a work permit within this time duration.
Employers must immediately inform ESDC/Service Canada of any changes related to the foreign worker’s terms and conditions of employment as described on the LMIA Confirmation. If Service Canada accepts the employer’s changes to the original LMIA, the employers’ file will be updated accordingly. However, if the changes to the terms and conditions of employment are not in compliance with the original LMIA and offer of employment, employers are required to apply for a new LMIA, based on a new advertising and selection process, and if a positive LMIA is used, the employee must apply for a new work permit.
In accordance with the provisions of the Immigration and Refugee Protection Regulations (IRPR), ESDC may conduct an Employer Compliance Review or inspection to verify the employer’s compliance with the conditions set out in the positive LMIA confirmation letter and annexes. If the employers fails to comply with program requirements, fines will be imposed by ESDC of up to $100,000 per violation in accordance with the Administrative Monetary Penalty (AMP) Regime implemented on Dec. 1, 2015.
Regardless of whether they were hired to a permanent or temporary role, a foreign worker can only be employed to the end date of their work or study permit. Employees on study permits, or those who obtained work permits on their own are responsible for completing the appropriate application for a permit extension.
- When you wish to extend an employee that was hired through an LMIA, the University must initiate a new advertising and selection process and apply for a new LMIA. As this can take a number of weeks, it is highly recommended that you contact Immigration Services early to begin the process. Four to six months ahead of the expiry of the employee’s work permit is suggested.
- To extend employees that were hired under an LMIA-exemption, you need to contact Immigration Services to verify whether or not the initial LMIA-exemption can still be applied. If so, upon confirmation by Immigration Services, a Talent Advisor will provide the employee with a new conditional offer letter, which they then use to apply for a new work permit.
- To be formally extended, an employee will be expected to provide an updated work permit and SIN.
- If the application for renewal of the work permit is made before the expiry date of the existing work permit but the work permit expires before a decision is made by Immigration, Refugees and Citizenship Canada (IRCC), the employee may continue to work under the terms and conditions of the original work permit as per the implied status provisions found in R186 (u). That is, implied status allows the employee to continue working under the conditions of an expired work permit - as long as they applied for a new permit before the original expired.
Implied status applies only as long as the employee remains in Canada. Should the employee leave Canada while under implied status, the university must cease processing salary payments.
- Implied status only allows the employee to continue working in the position that they were working in before. If they applied for a new type of work permit or for a change in conditions on their permit, the employee cannot start in the new position until they receive their new work permit that allows them to work in that particular new role.
- If the employee fails to apply to renew their work permit prior to its expiry date, they may seek restoration within 90 days of losing their temporary resident status as a worker. They must submit an application to apply for restoration of temporary resident status and for a new work permit to the Case Processing Center (CPC) in Edmonton, Alberta. In the application, they must provide full details of all the facts and circumstances that resulted in losing their status. They must pay the work permit fee as well as the restoration fee when applying. An officer will evaluate their request for restoration of status and, if approved, will process their application for a work permit.
Should they be without status in Canada, the university must cease the employment until their status is restored and they obtain a valid work permit.
- If an application for restoration of status is not made within 90 days of the breach of status, a new work permit application must be submitted from outside Canada to a visa office. Immigration Regulations prohibit issuance of a work permit to such a person for a period of 6 months from the date of contravention.
- A permanent resident does not have a work permit or a visa, and their SIN does not begin with 9 or have an expiry date. There are no restrictions to hiring a permanent resident, so when an employee obtains this status it is very important to collect their Permanent Resident Card and send it to HR – Immigration Services, so their new status is entered into the Human Resources system. Employees must provide their new SIN by logging into the My UCalgary portal and navigating to" all about me>My Info>Social Insurance Number.
There are a few different ways to apply for permanent residence, such as Express Entry and Provincial Nominee Programs. Foreign national employees will need to determine their eligibility for each program and decide which immigration program will work best for them and their family. For detailed information, refer to the CIC website.
- While we encourage any of our foreign national employees to pursue Permanent Residency, at this time the university can only assist employees who hold full-time permanent positions with this process. Should you or your employee have any general questions, contact HR – Immigration Services at firstname.lastname@example.org.
Immigration legislation allows for some exceptions to the requirement for a Labour Market Impact Assessment (LMIA), such as pursuant to international agreements or government policy.
The fundamental principle underlying the argument for an LMIA exempt work permit is the "significant economic, social or cultural benefit" (R205(a)), “Canada's competitiveness in the international economy” (R205(c)(ii)), or adherence to an international treaty (R204(a)).
In order to assess eligibility for an LMIA-exempt work permit, it is important to gather enough information and facts to support an argument. The criteria for certain LMIA exempt work permit categories are relatively straight forward, while other categories are subject to a higher degree of discretion and creativity in applying the various exemptions.
In certain situations, HR - Immigration Services may request an assessment (written opinion request) from the IRCC – International Mobility Worker Unit (IMWU) to confirm the case falls under an LMIA-exempt category, provided the foreign worker is from a visa-exempt country and is currently outside of Canada. The request and supporting documentation must be submitted at least 30 days prior to the date of entry to the International Mobility Worker Unit in Toronto.
Exemptions that are based on the person, for example international exchange participants, are obtained by the foreign national on their own. Most often the work permits are “open” meaning that there are no restrictions to occupation or employer. When hiring someone who already has a work permit we must only verify that there are no conditions on the permit that would preclude them from working at the university. Be sure to send a copy of the candidate’s work permit to your Talent Acquisition Advisor with the Request for Offer Letter form. The Talent Acquisition Advisor will confirm with Immigration Services whether or not the candidate can legally be hired.
Exemptions that are based on the position, such as international agreements with other countries, are obtained by the foreign national with Human Resources’ assistance. Once Immigration Services identifies an applicable LMIA-exemption, the Talent Acquisition Advisor will compose a Conditional Offer Letter and provide it to the candidate. They then use the letter as part of their work permit application. Once they obtain a work permit we can hire them through the normal process.
Any time a Talent Acquisition Advisor is approached about a foreign national hire, they will refer the case to Immigration Services, who first investigate the possibility of an LMIA-exemption for the position. If there is no exemption available, Immigration Services will provide advice on the Labour Market Impact Assessment process.
University of Calgary students who come from abroad to study often also work while they are here. Many of these students work on campus because of the convenience or the opportunity to expand on their education.
Students with a valid study permit that are enrolled in full-time studies at a degree granting institution are allowed to work in any position on the campus of that institution.
To hire a University of Calgary international student we need to confirm that they:
- have a valid Study Permit,
- are enrolled in full-time studies
- have a Social Insurance Number (SIN).
If you are unsure if a student is enrolled in full-time studies, you can ask your Talent Acquisition Advisor to check this for you.
If you are hiring them to a position that has gone through the Talent Acquisition office (submitted on a Job Opening Request Form), your Talent Acquisition Advisor will compose a conditional offer letter for the employee, which they can take to Service Canada to obtain their SIN.
If you plan to hire them to a casual student position done through the Template Based Hire (TBH), you can obtain a template contract letter from your HR Advisor or your Talent Acquisition Advisor. Complete the template on department letterhead and provide it to the student. They should then take it to Service Canada where they will obtain a SIN.
The international student must have one of the following conditions or remarks printed on their study permit in order to apply for a SIN for on-campus work:
- May accept employment on the campus of the institution at which registered in full-time studies
- May accept employment on or off campus if meeting eligibility criteria as per R186(f), (v) or (w). Must cease working if no longer meeting these criteria
If their study permit does not have one of the above conditions or remarks, they must submit a request for an amendment to their study permit before they can apply for a SIN. There is no fee for this request.
If they are an international student from another institution, they may qualify to work off campus without a work permit. Their study permit will allow them to:
- work up to 20 hours per week during regular academic sessions and
- work full-time during scheduled breaks, such as the winter and summer holidays or spring break.
Major reforms to the Temporary Foreign Worker Program and International Mobility Program came into effect, which place new emphasis on employer compliance and enforcement. As a result, the Government is massively increasing the number and scope of inspections and employer compliance reviews, so that one in four employers of temporary foreign workers will be inspected each year. To be compliant, the University of Calgary must demonstrate that we have provided each foreign worker with employment is the same occupation as stated in the offer of employment and with wages and working conditions that are substantially the same as those in the offer of employment.
Therefore, the University is required to report to and seek approval from ESDC/SERVICE CANADA on any changes to the terms and conditions of foreign national employee’s appointment, including:
- change in remuneration – salary increase/decrease and any lump sum payments
- change in working conditions.
Ensure that you contact the HR Advisor responsible for your Faculty, prior to the implementation of any changes to foreign national employees’ appointment. They will consult with Immigration Services and advise you of the appropriate action.
Administrative Monetary Penalty Regime
A regime of Administrative Monetary Penalties (AMPs) established in the Immigration and Refugee Protection Act came into force on Dec. 1, 2015, designed to promote compliance with the Temporary Foreign Worker Program and International Mobility Program requirements. Penalties may be imposed for a range of violations, including non-compliance with record-keeping requirements and failure to adhere to conditions laid out in offers of employment (including payment of certain wages, and failure to provide certain working conditions).
Where an employer fails to comply with multiple conditions or program requirements, each failure will be treated as a separate violation. As such, penalties under the AMP are cumulative, up to a maximum of 1 million. In addition to penalties, employers may also be barred from hiring foreign workers and have their violations published on a website.