Hiring Foreign Academic 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 (ESDC)/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). (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) (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) (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) (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.
Steps for Hiring Unit
The position must be advertised in accordance with the Hiring Criteria developed by Employment and Social Development Canada (ESDC) as follows:
- advertise vacant positions in Canada
- make sure any vacant positions advertised abroad are also advertised simultaneously in Canada
- advertise for a reasonable length of time (about a month) to allow broad exposure of the vacancy to Canadians and permanent residents
- demonstrate that the advertising medium used – web, print or electronic – is effective in attracting appropriate candidates for the position
- Include in the advertisement this statement: “All qualified candidates are encouraged to apply, however Canadians and permanent residents will be given priority”.
In this connection, at the time of your application, answer the following question:
Are you a Canadian citizen or a permanent resident of Canada? Yes/No
In order to be able to justify the hiring of a foreign academic, we need to ensure that advertisements clearly articulate the required qualifications, skills, expectations and experience. When possible, it is advisable to quantify requirements in terms of minimum number of publications in high impact journals or number of years of teaching and research experience; or define terms by adding qualifiers such as ”excellence demonstrated through…”
Recruitment advertising is placed through Human Resources –Talent Acquisition. Contact your HR Talent Acquisition Advisor for questions on preparation, placement and deadlines for recruitment advertising.
Ensure that at the start if the advertising you print off a copy of the advertisement on each site it is posted, including the UC 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)..
The selection process may now be done in one step. It is not necessary to separate the candidates’ applications into two groups. All applications, interviews, and assessments may be handled simultaneously.
All Canadian citizens and permanent residents who meet the advertised requirements of the position are to be invited to participate in the selection process, i.e. interviews, presentations, etc.
Canadian citizens and permanent residents who are found qualified are to be offered the position before it can be offered to a foreign candidate.
A Labour Market Impact Assessment is normally required for a work permit to ensure that the offer of employment is genuine and that the employment is likely to result in a neutral or positive effect on the labour market in Canada.
As soon as it becomes apparent that an individual other than a Canadian or permanent resident will be recommended for appointment, contact firstname.lastname@example.org. An Immigration Consultant will assist in making this determination.
Prepare and submit to Human Resources – Immigration Services the following documentation:
Advertising information: list of publications in which the advertisement appeared, the issues/dates of the publications, with copies of the advertisement attached
For assistance with how to complete the above-noted application forms, refer to the following guides:
Applying for a Labour Market Impact Assessment
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 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 is based.
Service Canada considers the following factors in a Labour Market Impact Assessment application:
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;
- 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 two 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.
As Service Canada and IRCC processing times vary, Faculties/Departments are encouraged to submit the necessary documents to Human Resources - Immigration Services as early as possible in order to avoid delays in the new faculty member’s start date.
If the LMIA is Positive: Service Canada will issue an LMIA confirmation and transmit it to Human Resources – Immigration Services. A copy of the LMIA Confirmation will be sent to the foreign academic along with original copies of the official letter of offer. This positive LMIA is valid for 6 months from the date of issue, therefore a work permit application must be submitted by the foreign academic to Immigration, Refugees and Citizenship Canada prior to the expiry date noted on the LMIA Confirmation.
Immigration legislation allows for some exceptions to the requirement for a LMIA, such as pursuant to international agreements or government policy – Labour Market Impact Assessment Exemptions . 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 Immigration, Refugees and Citizenship Canada 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 Workers Unit in Toronto.
Examples of LMIA Exempt Categories
Citizens of the USA, Mexico, and Chile employed on a temporary basis as allowed by the North American Free Trade Agreement (NAFTA) or the Canada Chile Free Trade Agreement (CCFTA) - Regulation R204(a), T23;
Holders of Canada Research Chair (CRC) positions and Canada Excellence Research Chair (CERC) positions – Regulation R205(c)(i), C30;
Spouses or common-law partners of skilled workers - Regulation R205(c)(ii), C41.
Individuals in the above situation may apply directly to IRCC at a port-of-entry to Canada to obtain a work permit (only if the foreign national is exempt from the requirement to obtain a Temporary Resident Visa (TRV) to visit Canada) or to a visa office at a Canadian embassy, high commission or consulate abroad, before departing for Canada.
In order for the University of Calgary to ensure we are hiring only those who are eligible to legally work in Canada, these contracts are to be completed in collaboration with the Contracts and Immigration Services teams within HR Talent Management, and must flow through the Provost and Vice-President (Academic) office for approval.
In the case of candidates that are already in Canada based on valid work permits or study permits (i.e., Postdoctoral Scholars, international Graduate Students, etc.), Immigration Services will check the candidate’s immigration document and confirm their eligibility to work as a Sessional prior to the start date of their appointment.
If the candidate is outside of Canada, in order to facilitate their entry to Canada, it is imperative that the hiring unit contacts Immigration Services at email@example.com as soon as it becomes apparent that an individual other than a Canadian or permanent resident will be recommended for appointment. An Immigration Consultant will determine whether or not a Labour Market Impact Assessment should be obtained to facilitate the candidate’s application for a work permit. If no applicable exemption could be identified, the steps outlined in the Hiring Foreign Academics section above must be followed in order to apply for a Labour Market Impact Assessment through Service Canada.
Service Canada will not confirm part-time job offers — as a result we can only apply for a Labour Market Impact Assessment if the non-Canadian Sessional’s workload consist of a minimum of three half-course equivalents (HCE) per term or semester.
Required Documentation for New Appointments
Required Documentation for Reappointment
- Recommendation letter
- AE5 Form
- Copy of Work Permit or Study Permit (if has a valid one)
- Verification of full-time student status if the appointee is an international student
Steps for Approval
- The Department or Faculty will follow the steps for choosing an appropriate candidate for the position. As soon as it is determined that the candidate is a non-Canadian, the Faculty should then be in contact with the candidate and check their status in Canada if they already here. If the candidate is still out of the country, the Academic Contracts team needs to be notified immediately, as they will work with the HR Immigration team to take steps to facilitate the candidate's entry into Canada.
- The Department or Faculty will compile all relevant documents (outlined above), and obtain the appropriate signatures and forward the package to the Academic Contracts team (via e-mail to firstname.lastname@example.org
- The Academic Contracts team will then check the form for accuracy and completeness. The team will also check the candidate’s work or study permit (if received) for validity, and will also verify student status if the candidate is being hired using a study permit.
- The Academic Contracts team will then create a file, the ‘Offer of Employment’ on behalf of the Provost, and will forward the file and contract to the Provost’s office for approval and signature.
- After the Provost has signed the AE5 and Offer of Employment, the file is then returned to the Academic Contracts team, who will provide a copy to the candidate, the Dean’s and Head’s (if applicable) and the Finance Partner. Once the candidate has signed the acceptance they will then forward the file to the HR Operations (Academic) team for entry into the system.
- The HR Operations (Academic) team may only enter the appointment once a valid study or work permit has been obtained and verified.
Regardless of whether foreign academics are hired to a Continuing, Contingent Term or Limited Term appointment, they can only be employed to the end date of their work permit. As a result of the reforms to the Temporary Foreign Worker Program implemented in June 2014, re-advertising and a second LMIA is required for tenured and tenure-track academic positions in order to facilitate a work permit extension. While previously we were able to obtain a subsequent LMIA by requesting a waiver of the requirement for a new advertising/selection process, this option is no longer available. As preference must be given to qualified Canadians or permanent residents for re-advertised positions, foreign faculty members’ ability to obtain an extended work permit and continue in their position may be in jeopardy. Therefore, it is imperative that foreign academics hired to a tenured or tenure-track position (or Contingent Term in the Cumming School of Medicine) initiate an application for permanent residence in Canada, preferably, within the first year of their appointment.
To facilitate the extension of a work permit, the university must initiate a new advertising and selection process and apply for a new LMIA, unless an exemption could be identified. As this can take a number of weeks, it is highly recommended that this process is initiated at least four months ahead of the expiry date of the foreign academic’s work permit. The Immigration Services team closely monitors expiry dates of work permits and will advise the foreign academic as well as the HR Advisor/Partner responsible for their Faculty of the appropriate process that must be followed.
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 foreign academic 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 foreign academic 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 foreign worker remains in Canada. Should the foreign academic leave Canada while under implied status, the university must cease processing salary payments.
Note that implied status only allows the foreign academic 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 (for example, as a Department Head), the foreign academic cannot start in the new position until they receive their new work permit that allows them to work in that particular new role.
Restoration of Status
If the foreign academic 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 Vegreville, 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 six months from the date of contravention.
There are a few different ways to apply for permanent residence, such as Express Entry and Provincial Nominee Programs. Foreign academics will need to determine their eligibility for each program and decide which immigration program will work best for them and their family. Refer to the CIC website for detailed information.
The HR Immigration Services team provides personalized consultation to all international faculty members on matters related to their immigration processes in order to ensure successful outcomes and reduce their administrative burden, and ultimately facilitate their smooth transition to Canada. Should you or your employee have any general questions, contact HR – Immigration Services at email@example.com.
Temporary Foreign Worker Program Reforms
Major reforms to the Temporary Foreign Worker Program and International Mobility Program came into effect, which place new emphasis on employer compliance and enforcement.
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/SC 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
- Additional Market Supplement, Overload Teaching or Administrative Appointment
- Any change in working conditions
Ensure that you contact the HR Academic 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.
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 and subject to an Administrative Monetary Penalty from $500 to $100,000 per violation. As such, penalties under the AMP are cumulative, up to a maximum of one million per year. In addition to penalties, employers may also be barred from hiring foreign workers for one, two, five, and ten years - even permanently - and have their violations published on a government website.