Immigration and Refugee Protection Regulations (SOR/2002-227)

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 assessment provided by the Department of Employment and Social 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;

  • (e) the employer

    • (i) has not, directly or indirectly, charged or recovered from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers,

    • (ii) ensured that any person who recruits the foreign national for the employer did not, directly or indirectly, charge or recover from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers;

  • (f) in the case where the employer has not employed a foreign national referred to in subparagraph 200(1)(c)(iii) during the six years before the day on which the request for an assessment made under subsection (2) is received by the Department of Employment and Social Development, during the period beginning two years before the day on which the request for an assessment is received and ending on the day that an assessment is provided, when the employer was actively engaged in the business for which the employer has provided information under this subsection and subsection (2.1), the employer

    • (i) made reasonable efforts to provide a workplace that is free of abuse, and

    • (ii) was not an affiliate of an employer referred to in subparagraphs 200(3)(h)(ii) or (iii); and

  • (g) the employer committed

    • (i) to conclude with the foreign national, on or before the first day of work of the foreign national that is during the period of employment for which the work permit is issued to them, an employment agreement that

      • (A) provides for employment in the same occupation and the same wages and working conditions as those set out in the offer of employment,

      • (B) is drafted in the foreign national’s chosen official language of Canada, and

      • (C) is signed by both the employer and the foreign national,

    • (ii) to provide the foreign national, on or before the first day of work of the foreign national that is during the period of employment for which the work permit is issued to them, a copy of the employment agreement referred to in subparagraph (i),

    • (iii) to not, directly or indirectly, charge or recover from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers, and

    • (iv) to ensure that any person who recruits the foreign national for the employer does not, directly or indirectly, charge or recover from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers.

• 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:Effect on labour market

  (1.1) For the purposes of paragraph (1)(b), the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada if

  • (a) the wages set out in the offer of employment are not consistent with the prevailing wage rate for the occupation; or

  • (b) 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.

• Marginal note:Assessment on request

  (2) Subject to subsection (2.02), the Department of Employment and Social Development must provide the assessment referred to in subsection (1) on the request of an officer or an employer or group of employers, none of whom is an employer who

  • (a) on a regular basis, offers striptease, erotic dance, escort services or erotic massages; or

  • (b) is referred to in subparagraph 200(3)(h)(ii) or (iii).

• Marginal note:Offer of employment

  (2.01) 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:Suspension of processing of requests

  (2.02) If any of the circumstances set out in section 209.5 exist, the processing of a request for an assessment under subsection (2) is suspended so long as the Department of Employment and Social Development has a reason to suspect that

  • (a) the employer who made the request is not complying with or has not complied with any of the conditions set out in subparagraph 209.3(1)(a)(i), 209.3(1)(a)(iv) with regard to the working conditions referred to in that subparagraph, 209.3(1)(a)(v) or 209.3(1)(a)(vii) to 209.3(1)(a)(xii); and

  • (b) the employer’s failure to comply with any of the conditions referred to in paragraph (a) would put at serious risk the health or safety of the foreign national, if the work permit was issued.

• Marginal note:Basis of Assessment

  (2.1) The assessment provided by the Department of Employment and Social Development on the matters set out in paragraphs (1)(a) to (g) must be based on any information provided by the employer making the offer and any other relevant information.

• Marginal note:Factors — effect on labour market

  (3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) must, 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) or (1.1) 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 working conditions offered to the foreign national 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) [Repealed, SOR/2022-142, s. 7]

  • (g) whether the employer has fulfilled or has made reasonable efforts to fulfill any commitments made, in the context of any assessment 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 assessment

  (3.1) An assessment provided by the Department of Employment and Social Development shall indicate the period during which the assessment 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 assessment provided by the Department of Employment and Social Development shall be made in concert with the competent authority of that Province.

• Marginal note:Affiliate

  (5) For the purposes of this section, an affiliate includes

  • (a) an employer that is controlled by another employer;

  • (b) two employers that are under common control; or

  • (c) employers that are not operated at arm’s length.

• Marginal note:Control

  (6) For the purposes of subsection (5), control, whether direct or indirect, exercised or not, includes

  • (a) common ownership;

  • (b) common management;

  • (c) common interests;

  • (d) shared facilities or equipment; or

  • (e) common use of services of employees.