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Under NAFTA, workers in the USA can often times appear at a Canadian Port of Entry and present their applicaton for a work permit in Canada, and receive a work permit for $150. But since the spring, many U.S. workers have been turned away and told that there is a new “filing” requirement they need to satidfy before making their Port application.

As of February 2015, Citizenship and Immigration Canada (CIC) has made it compulsory for employers – Canadian or foreign – to file for the pre-approval of their workers by completing form called an IMM 5802, and by paying an employer compliance fee of $230 CAD.  Employers seeking to hire foreign nationals in the International Mobility Program must provide their offer of employment directly to CIC using the IMM 5802 form. This new requirement applies also to workers covered under international agreements (e.g., North American Free Trade Agreement), exchange programs (e.g., International Experience Canada program), and intracompany transferees.

The IMM 5802 form now replaces the job offer letter previously required of LMIA-exempt work permit applications from foreign nationals. The foreign national must submit the employer compliance fee and completed IMM 5802 form with their LMIA-exempt work permit application. If the new requirements are not met, the application may be refused.

These new additional requirements are supposed to enhance Canadian employer accountability. Here is what we think of this new change.  From what we have noticed, the CBSA officers at the border are not so concerned about the validity of the Form.  They have been mainly looking to see whether the fee was paid.  So what is the effect of the filing, then? If a NAFTA worker is supposed to be LMIA-exempt, then why make him or her jump through new hoops? Was it not expensive enough that the employer had to hire a lawyer to draft up the work permit application, and border coach the worker prior to travel? Now there is a new fee and form requirement which far from facilitates the process.  We believe that this contravenes the objective of a free-trade agreement such as GATS or NAFTA, which were enacted so that trade would be “facilitated” as between the USA and Canada.  So how does CIC now have the right to unilaterally impose requirements that defeat the purpose of an international treaty?

Be prepared for the substantive changes in this area of Canadian immigration law by seeking legal advice from our Canadian immigration consultants today!

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