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 shall determine, on the basis of an opinion provided by the Department of Employment and Social Development, 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 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) during the period beginning two years before the day on which the request for an opinion under subsection (2) is received by the Department of Employment and Social Development and ending on the day on which the application for the work permit is received by the Department,

    • (i) the employer making the offer provided each foreign national employed by the employer with wages, working conditions and employment in an occupation that were substantially the same as the wages, working conditions and occupation set out in the employer’s offer of employment, or

    • (ii) in the case where the employer did not provide wages, working conditions or employment in an occupation that were substantially the same as those offered, the failure to do so was justified in accordance with subsection (1.1).

• 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 referred to in subparagraph (1)(e)(ii) is justified if it resulted 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; or

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

• Marginal note:Opinion on request

  (2) The Department of Employment and Social Development shall 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 whose name appears on the list referred to in subsection 203(6), if a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) 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:Subject matter of opinion

  (2.1) An opinion provided by the Department of Employment and Social Development shall consider the matters set out paragraphs (1)(a) to (e) but, for the purposes of this subsection, the period referred to in paragraph 1(e) shall be considered to end on the day that the request for the opinion is received by the Department of Employment and Social Development.

• 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 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 is likely to result in the creation 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 has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and

  • (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.

• 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:Employer’s failure not justified

  (5) If an officer determines under subparagraph 200(1)(c)(ii.1) or paragraph (1)(e) that, during the period set out in paragraph (1)(e), an employer did not provide wages, working conditions or employment in an occupation that were substantially the same as those offered and that the failure to do so was not justified in accordance with subsection (1.1), the Department shall notify the employer of that determination.

• Marginal note:List of employers

  (6) A list shall be maintained on the Department’s website that sets out

  • (a) the names and addresses of employers referred to in subsection (5); and

  • (b) the day on which the determination referred to in that subsection was made in respect of an employer.