On February 21 2015, CIC imposed a new electronic pre-application filing requirement for applicants applying for employer-specific work permits that are exempt from Labour Market Impact Assessments (LMIAs), formerly known as Labour Market Opinions (LMO’s). The new rules require employers to pay a compliance fee ($230.00) for work permits in advance of their foreign worker making application for a work permit at a port of entry, on-line, through a Visa Application Centre (VAC) or Embassy or Consulate.
The vast majority of applicants that we service will be a applying for their work permit at the port of entry or at airports in Canada. This new requirement involves the employer completing a new CIC form (IMM 5802), Offer of Employment form, paying the compliance fee, emailing the form to CIC and providing a copy of the form to the foreign worker in advance of appearing at the port of entry and seeking their work permit. The most common applicants who are now subject to this new form and fee requirements are NAFTA professionals, Intra-Company Transferees, Provincial Nominees and provincially supported applicants, those applying under the significant benefit to Canada provisions and emergency service personnel.
Given the limited publicity surrounding the launch of this new compliance initiative, many employers and foreign workers have been caught off guard and are getting stuck at the border and advised of this new pre-application and fee requirement. This can cause travel delays, missed connecting flights and instil fear in the foreign worker that they are off-side the law or somehow do not qualify for the LMIA exempt work permit.
The CBSA has been instructed to allow foreign workers to contact their employers so that they may have the employer file the form and pay the fee while they wait at the port of entry or airport. Without proof of pre-filing and payment, CBSA has the legal authority to refuse their work permit application. Employers should be aware that the fee payment can be done on-line and the form can be submitted to CIC in less than 20 minutes, providing the employer has all the relevant corporate and employment information at hand. Once the application form (including fee payment receipt number) has been emailed to CIC, a copy of the email can be forwarded to the foreign work’s email or emailed or faxed directly to the port of entry or airport to prove submission and payment. The CBSA will accept proof that the email was sent and the fee paid by receiving copies of the IMM5802, the fee receipt and proof that the email was sent by the employer. There is no minimum period of time in advance that the employer is required to submit the form and fee. The employer will not receive an acknowledgement of receipt email. The application and fee can be filed just minutes before arrival at the port of entry or while the foreign worker awaits processing at the CBSA offices.
This new process will result in many people getting stuck at the border and airport. CIC simply rolled out this new program requirement without adequate public notice or advance warning to employers or to the CBSA. The new form and instructions are yet to be included on CIC’s work permit application instructions. The new form and instructions can be found at: http://www.cic.gc.ca/english/resources/tools/temp/work/admissibility/specific.asp.
In the course of preparing and filing this new form, employers may also be concerned about disclosing their confidential corporate information to their foreign workers. In this case, it is advisable to ask the foreign worker to obtain the CBSA’s fax number or email address so that the employer can confidentially send the requisite form to CBSA without direct disclosure to the foreign worker.
This new requirement imposes an additional application burden on employers and legal counsel. The information that the employer places on the IMM5802 must be correct and complete, as CIC will rely on this information to ensure employers have accurately represented the terms of employment, the employer of record, the location of employment as well as wages and working conditions. CIC is stepping up the employer compliance regime that now governs the LMIA process. Employers will need to keep the IMM 5802 form on record for 6 year including all corollary information pertaining to the offer of employment made to the foreign worker.
CIC advises employers that the new IMM 5802 replaces the requirement to furnish the foreign worker with a formal offer of employment letter for inclusion with the work permit application. It is advisable to always include a copy of the offer letter with the work permit application. CIC and CBSA have the power to contact the employer should they have questions in regard to the terms of employment. Hence, we recommend that the employers always ensure that foreign workers carry a copy of their employment agreement or offer letter including background information on the employer when applying for a work permit.
By following this practical advice, employers can ensure that their LMIA exempt foreign workers don’t get stuck at the border and if they do, not for long.