Immigration and Refugee Protection Regulations

Marginal note:Assessment of employment offered

• 203 (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer must determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, of any information provided on the officer’s request by the employer making the offer and of any other relevant information, if

  • (a) the job offer is genuine under subsection 200(5);

  • (b) the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada;

  • (c) the issuance of a work permit would not be inconsistent with the terms of any federal-provincial agreement that apply to the employers of foreign nationals;

  • (d) in the case of a foreign national who seeks to enter Canada as a live-in caregiver,

    • (i) the foreign national will reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in that household without supervision,

    • (ii) the employer will provide the foreign national with adequate furnished and private accommodations in the household, and

    • (iii) the employer has sufficient financial resources to pay the foreign national the wages that are offered to the foreign national; and

  • (e) the employer

    • (i) during the period beginning six years before the day on which the request for an opinion under subsection (2) is received by the Department of Human Resources and Skills Development and ending on the day on which the application for the work permit is received by the Department, provided each foreign national employed by the employer with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that were substantially the same as — but not less favourable than — those set out in that offer, or

    • (ii) is able to justify, under subsection (1.1), any failure to satisfy the criteria set out in subparagraph (i).

• Marginal note:Effect on labour market — language

  (1.01) For the purposes of paragraph (1)(b), the employment of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada if the offer of employment requires the ability to communicate in a language other than English or French, unless

  • (a) the employer or group of employers demonstrates that the ability to communicate in the other language is a bona fide requirement for performing the duties associated with the employment;

  • (b) the offer of employment relates to work to be performed under an international agreement between Canada and one or more countries concerning seasonal agricultural workers; or

  • (c) the offer of employment relates to other work to be performed in the primary agriculture sector, within the meaning of subsection 315.2(4).

• Marginal note:Justification

  (1.1) A failure to satisfy the criteria set out in subparagraph (1)(e)(i) is justified if it results from

  • (a) a change in federal or provincial law;

  • (b) a change to the provisions of a collective agreement;

  • (c) the implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the business of the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;

  • (d) an error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;

  • (e) an unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;

  • (f) circumstances similar to those set out in paragraphs (a) to (e); or

  • (g) force majeure.

• Marginal note:Opinion on request

  (2) The Department of Human Resources and Skills Development must provide the opinion referred to in subsection (1) on the request of an officer or an employer or group of employers, other than an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages or an employer whose name appears on the list referred to in subsection 209.91(3) if a period of two years has not elapsed since the day on which the determination referred to in subsection (5) or 209.91(1) or (2) was made. A request may be made in respect of

  • (a) an offer of employment to a foreign national; and

  • (b) offers of employment made, or anticipated to be made, by an employer or group of employers.

• Marginal note:Basis of opinion

  (2.1) The opinion provided by the Department of Human Resources and Skills Development on the matters set out in paragraphs (1)(a) to (e) must be based on any information provided by the employer making the offer and any other relevant information, but, for the purposes of this subsection, the period referred to in subparagraph (1)(e)(i) ends on the day on which the request for the opinion is received by that Department.

• Marginal note:Factors — effect on labour market

  (3) An opinion provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:

  • (a) whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;

  • (b) whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;

  • (c) whether the employment of the foreign national is likely to fill a labour shortage;

  • (d) whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;

  • (e) whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reasonable efforts to do so;

  • (f) whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute; and

  • (g) whether the employer has fulfilled or has made reasonable efforts to fulfill any commitments made, in the context of any opinion that was previously provided under subsection (2), with respect to the matters referred to in paragraphs (a), (b) and (e).

• Marginal note:Period of validity of opinion

  (3.1) An opinion provided by the Department of Employment and Social Development shall indicate the period during which the opinion is in effect for the purposes of subsection (1).

• Marginal note:Province of Quebec

  (4) In the case of a foreign national who intends to work in the Province of Quebec, the opinion provided by the Department of Employment and Social Development shall be made in concert with the competent authority of that Province.

• Marginal note:Failure to satisfy criteria

  (5) If an officer determines that the criteria set out in subclause 200(1)(c)(ii.1)(B)(I) or subparagraph (1)(e)(i) were not satisfied and that the failure to do so was not justified by the employer under subsection (1.1), the Department must notify the employer of that determination and must add the employer’s name and address to the list referred to in subsection 209.91(3).

• (6) [Repealed, SOR/2013-245, s. 6]