Hiring from abroad during Covid

On Jan. 20, the United States of America welcomed a new president and a new administration
Hiring from abroad during Covid

On Jan. 20, the United States of America welcomed a new president and a new administration. Immigration to the U.S. had been restricted under the last administration, which President Joe Biden is expected to ease. Yet Canada remains a very attractive destination for foreign workers, say immigration lawyers who help technology and other companies bring foreign workers to the country.

“Canada has been reliable in creating paths for highly educated people and giving them paths to stay in Canada,” says Robin Seligman of Seligman Law in Toronto. “It doesn’t change from government to government; it’s consistent with who we are as Canadians.”

Government programs such as the Global Skills Strategy and Global Talent Stream, Express Entry and provincial programs such as Ontario Immigrant Nominee Program continue to attract foreign workers, despite travel difficulties caused by the pandemic.

“Canada is really a place of opportunity,” Seligman says.

Government programs

There are multiple government programs and streams to facilitate the entry of skilled foreign workers into Canada, including in the technology sector.

Service Canada has determined that certain occupations, including information technology specialists, mathematicians and statisticians are in demand, and the usual advertisement requirements for Labour Market Impact Assessments are waived for employers hiring individuals in these occupations. This means companies do not have to advertise or try to recruit Canadians to do a job before they are able to hire a foreign worker, because the government has recognized there is a shortage of skilled workers in these areas. Employers must also commit to paying the prevailing Canadian wage or salary.

Under the federal Global Talent Stream program — part of the broader Global Skills Strategy program to assist Canadian businesses — the government commits to 14-day processing of work permits for technology and other high-skilled occupations and to process an LMIA opinion within 10 days. “At the end of the day, the employer gets an LMIA, and they enter into a Labour Market Benefits Plan with Service Canada,” says Seligman.

The federal “Express Entry” program facilitates the application process for skilled immigrants who want to settle in Canada permanently, and provinces have their own versions of the program. For example, the Ontario Immigrant Nominee Program regularly issues targeted “tech draws,” inviting individuals in the pool of candidates for express entry and in tech occupations to apply for provincial nomination for immigration, says Seligman.

Find out how immigrants settled in Canada through immigration sponsorship here.

And the Post-Graduation Work Permit Program allows a student who has graduated from a designated learning institution to apply for a work permit provided they meet certain conditions, says Kenneth Zaifman, founding and managing partner of Zaifman Law in Winnipeg.

“What has changed is that now the student can commence their employment after submitting the PGWPP application [and] prior to final approval. With the delays in processing work permit applications, this allows students to work as soon as they have applied,” says Zaifman, citing a University of Manitoba computer science student who had applied for a PGWPP work permit but was able to start working immediately as a software programmer.

Michael Greene, a senior partner at Sherritt Greene LLP, Calgary, believes the government continues to put up roadblocks to foreign workers, after the Temporary Foreign Workers Program was criticized for misuse years ago and reformed as a result.

“We’re still feeling the effects of that” overhaul, says Greene, adding that the current “program is a triumph of form over substance,” full of “bureaucratic hoops” and exacting requirements. Programs such as “Express Entry” have streamlined the process, “but it’s a pigeon-holed process” that works better for larger companies with more resources, he says. Smaller companies and startups, without the track record of successful revenues, may have a harder time convincing the government that they’re “a safe bet” for paying their foreign workers.

The pandemic and other challenges

The COVID-19 pandemic has, not surprisingly, caused processing delays. Eligible GSS applications are still being processed, although not necessarily within two weeks, the federal government warns on its Global Skills Strategy website.

“There are all sorts of challenges in getting new talent to Canada, on account of travel restrictions and self-isolation requirements, etc.,” says Ryan Rosenberg of Larlee Rosenberg, Barristers & Solicitors in Vancouver. “We are getting them through,” but not as quickly as before the pandemic, he adds.

At the same time, he says, Immigration, Refugees and Citizenship Canada has been innovative during the pandemic in making it easier for foreign workers on permits to switch employers from within the country.

“It used to be that if . . . a company tried to poach you away from your current employer, they’d have to go out and help you apply for a new work permit, and that could take several months to process, causing a delay in the start date,” says Rosenberg.

“What the IRCC has put in place during the pandemic, in an attempt to keep people working where opportunities still exist, is if you’re switching employers and you qualify for a new work permit with a new employer, and you ask the right way, they will process those change-of-employer applications within 10 business days. In my experience, they’ve been taking closer to two.”

Travel restrictions during the pandemic are also complex.

Airline agents are making immigration decisions, says Seligman, and they “are supposed to be liaising with the Canada Border Services Agency, but that’s not always done.”

In addition, says Zaifman, information that agents have from the CBSA may not be accurate or up to date. “It’s not always an even-keeled approach when you’re trying to administer government guidelines put in place around the world; lawyers have to manage that.”

Foreign workers who are not arriving in Canada directly from the U.S. need to have their work permits approved before boarding their flights, says Rosenberg, to exempt them from COVID-related travel restrictions. However, visa offices are not prioritizing the applications for these approval letters, and “most normal applications are taking much, much longer.”

And those applying for a work permit from Europe need to supply biometrics. However, an applicant in Norway, for example, which is not a member of the European Union and has no biometrics office, must travel to another country to give biometrics. “With travel restrictions across Europe, you’re stuck,” Rosenberg says.

Foreign policies

Greene points to free trade agreements, which he sees as becoming more protectionist internationally. As well, the free trade agreement between Canada and the U.S. has had the same list of occupations that it did in the early 1990s, he says. Computer systems analysts are there, he says, but programmers, software designers, media developers and web designers do not appear on the list.

We’ve seen the tech industry completely transformed in that 25-year period, and the free trade agreement hasn’t changed” to reflect that in its list of occupations that can work across borders, Greene says.

On the other hand, foreign immigration policies, and the pandemic, have also benefitted Canada’s technology sector.

U.S. immigration policies under former president Donald Trump have helped to develop Vancouver’s tech scene, says Rosenberg. Trump’s ban on immigration from a number of countries, “on top of an already archaic visa system . . . further pushed foreign companies to set up shop in Canada,” he says. Vancouver being in the same time zone as Silicon Valley made it “a perfect landing spot.” However, if the new Biden administration reverses some of those policies, it may slow the speed at which companies are setting up shop in Canada, he says.

And with a pandemic-induced move to remote work, “you don’t have to be in Silicon Valley physically to make it work anymore,” says Greene, adding there’s “an exodus happening from places like Silicon Valley.

“Partly because the development of their own technology has made it so it’s easier to work remotely, [and] I think the industry is discovering it . . . you don’t have to be in Silicon Valley to compete with Silicon Valley.”

The end of the pandemic is still a way off, but the government should be looking at its immigration policies now, and to the extent it’s creating new policies, it should be removing roadblocks, says Lorne Waldman of Waldman & Associates in Toronto.

“One of the crucial roles that immigration has been playing in our economy has been to facilitate the entry into Canada of skilled workers that we need,” he says. “I think prior to the pandemic we had been moving in the right direction . . . to programs to facilitate the rapid entry of workers into Canada, in the crucial industries.

“The problem now is that the pandemic has had a significant impact on our ability to process,” Waldman adds. “But I think it’s crucial that, as we move forward, we make sure that the policies that are put in place to protect us during the pandemic also take into account the need to ensure that we allow the workers that we need . . . into the country as quickly as possible — because once the pandemic is over, we’re going to want to be able to have the economy move into high gear quickly.” 

Lawyer(s)

Robin L. Seligman Ken Zaifman Michael A.E. Greene Ryan N. Rosenberg Lorne Waldman

Firm(s)

Seligman Law Zaifman Law Sherritt Greene Larlee Rosenberg, Immigration Lawyers Waldman & Associates