Drastic Measures: New Immigration Rules to Help Canadian Employers Attract

Canadian employers of all sizes, from start-ups to multinationals, should be aware of several important developments that will significantly facilitate the hiring and entry of foreign nationals, with a particular focus on tech and other in-demand occupations.

Canada’s Tech Talent Strategy: Cementing Canada’s Position as a Global Leader in Tech Talent Recruitment

The Immigration Minister has unveiled Canada’s first Tech Talent Strategy, composed of several key measures to facilitate and prioritize the hiring of foreign nationals into certain in-demand occupations. The list of occupations has not yet been announced but will likely include the occupations on the global talent occupations list (which includes engineers of various disciplines including civil, electrical and software engineers, software developers, engineering managers, web designers, and video game artists).

These are the key measures:

1. Open work permit valid for up to five years for workers in select in-demand occupations starting later this year. This is unheard of, as the maximum work permit duration is currently three years. No job offer from a Canadian employer would be required.

2. Reduced work permit processing times for certain workers in tech and other highly skilled occupations. A welcome relief for employers and employees given consistently high work permit processing times over the last three years.

3. 10,000 open work permits valid for up to three years will be granted to H-1B visa holders in the United States. Their spouse or common-law partner will also be eligible for an open work permit, and their dependent children will be eligible for study permits. Although their talent is widely sought after by U.S. employers, due to the complexity and rigidity of the H-1B visa program, many H-1B visa holders are unfortunately unable to remain in the United States. Those who can remain in the United States often find themselves waiting upwards of 10 years to obtain permanent residency in the United States. U.S. employers will benefit as they would be able to keep valuable human capital in a similar time zone, and employment in Canada could facilitate the worker’s eventual return to the United States under a different visa category, such as the L-1 work permit for intra-company transferees, or TN work permit for certain professionals including engineers and software professionals. Canadian employers will benefit as they would be able to easily hire these professionals without having to go through any sort of immigration application process. Perhaps the greatest benefit of all goes to the workers themselves: many of those who decide to take advantage of this program may receive Canadian permanent resident status (and even Canadian citizenship) in a shorter period than it would have taken them to obtain a green card.

Unsurprisingly, all 10,000 spots were taken within days of the program opening on July 16, 2023. Canadian employers should be aware that they now have access to an expanded talent pool and that the popularity of this initiative may result in another similar program in the future.

4. Revisions to the Start-Up Visa Program
The Start-Up Visa Program provides a path to permanent residence for entrepreneurs who intend to live outside Quebec and meet these criteria:

• Have a qualifying business: Applicants must hold a sufficient threshold of voting rights in the business to be eligible. At the time permanent residence is granted, the applicant must provide active and ongoing management of this business from within Canada, the business must be incorporated in Canada, and an essential part of the business operations must be in Canada.
• Get a letter of support from a designated organization: Designated organizations include angel investors affiliated with specific angel investor groups, venture capital funds, and business incubators. The letter demonstrates support for the business idea by committing financial capital to the business above a specified threshold from designated angel investors or venture capital firms or by accepting the business into a designated business incubator.
• Meet the language requirements: Applicants must meet certain language thresholds.
• Bring enough money to settle: Applicants must have sufficient funds to support themselves when settling in Canada, and the amounts are revised annually.

Here is a brief summary of the proposed changes:

• The Government will increase the number of annual spots allocated to this program over the next three years, prioritize applicants who have received support from certain designated organizations, and is committed to reducing processing times.
• Historically, only members of the entrepreneurial team deemed essential to the business could apply for a one-year closed work permit which, only authorized employment at their start-up. Applicants can now apply for three-year open work permits, allowing them to accept other employment in Canada while building their businesses. Additionally, all members of the entrepreneurial team are eligible for the open work permit, regardless of whether they have been deemed essential and urgently needed in Canada.

Fasken’s Emerging Tech practice offers a start-up package to entrepreneurs that includes legal services, mentorship and strategic advice that is designed to help them establish, grow and scale their ventures in the Canadian tech ecosystem.

5. Initiatives to facilitate the entry and retention of digital nomads (an individual who is remunerated outside Canada and can perform their work remotely from any location), who currently must apply to extend their status every six months. Canadian employers could hire these skilled individuals more easily if they are already living and working in Canada.

Study Permit Waiver for Certain Work Permit Holders

Recognizing the administrative burden of the study permit application process, lengthy study permit processing times, and strict study program start dates, the Minister has issued a study permit waiver effective through June 27, 2026, for certain work permit holders. Allowing foreign workers to further upgrade their knowledge and skills without having to first apply for a study permit will further increase the competitiveness of Canada’s labor force and talent pool. Foreign nationals who have completed certain study programs in Canada also receive additional points that could increase their chances of being invited to apply for permanent residence.

Note, however, that not all work permit holders are eligible and individuals who take advantage of this policy are not eligible for the post-graduation work permit, which depending on the individual’s situation could be valuable in the future. Additionally, studies beyond June 27, 2026, are not covered so if the individual wishes to complete a program that extends beyond this date, they should apply for a study permit.

Expanded Talent Pool for Employers: Lowering of French Threshold to Promote Francophone Immigration Outside Quebec

The government significantly relaxed the eligibility requirements under the Francophone Mobility work permit program. As of June 15, 2023, a foreign national in any occupation (except primary agriculture) who can speak French at a low intermediate level (Level 5/10 on the Canadian Language Benchmarks or higher) is eligible for an employer-specific work permit, provided that the foreign national will be living outside Quebec and working for an employer based outside Quebec.

Prior to June 15, 2023, the foreign national had to demonstrate that they were working in a skilled occupation that usually requires a college diploma or higher (TEER levels 0, 1, 2 or 3), that they had at least a high intermediate level of French (Level 7/10 on the CLB) and that their habitual language of daily use is French.

This significantly facilitates the ability for employers outside Quebec to hire individuals with some French skills into positions of all skill levels without having to go through the lengthy and complicated Labour Market Impact Assessment process. While many of the recent immigration updates pertain to highly skilled occupations, employers across Canada are having difficulty filling positions across all skill levels. This is therefore a significant and highly welcome update. Foreign nationals who have some command of French also receive additional points that could increase their chances of being invited to apply for permanent residence.

Visa-Free Air Travel for Citizens of 13 More Countries

Canada has added 13 more countries to the Electronic Travel Authorization program (Electronic Travel Authorization (eTA)). Citizens of these countries who have had a Canadian visa in the last 10 years or have a valid United States non-immigrant visa can now fly to Canada without a visa. Citizens of these countries will still require a visitor visa to enter Canada by land or sea. The processing time for an eTA is usually under two hours, compared to several weeks to months for a visitor visa. With the eTA, citizens of these countries can easily and on short notice meet with colleagues, customers, or potential customers and attend events on short notice.

As immigration rules frequently change with little or no notice, we will continue to publish updates that we think would be of benefit to employers and their foreign workers so they can stay up to date and effectively manage their immigration programs.

The authors wish to thank Priti Majumdar and Nicky Young for their assistance in drafting this article.

The list of the newly added 13 countries includes Antigua and Barbuda, Argentina, Costa Rica, Morocco, Panama, Philippines, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Seychelles, Thailand, Trinidad and Tobago, and Uruguay.

If you have any questions on any of the above changes or how to craft a solid immigration strategy for
your foreign worker population, please contact Daniel Lee, Douglas Tsoi or Stephanie Heinsohn-Spiropoulos.
For information on setting up or structuring a company in Canada, please contact Laura Fetter and to learn more
about our Emerging Tech group, contact Shahrooz Nabavi, Will Shaw, Constantinos Ragas, Adam Saskin or Kate Grant.

Source: FASKEN