Canada’s Brain Gain?

Jessica Rowen

September 15, 2017

When Donald Trump was first elected as the 45th President of the United States, we wrote about how we wanted to make work great again for Canadians working in the US. But our argument for why was only rooted in the fact that a majority of the public were not happy about the decision. So much so that they actually crashed the Citizenship and Immigration Canada’s website. Now it looks like there might not be an option for Canadians and other immigrants working and/or building businesses in the US.

The H-1B and L-1 programs have been under scrutiny by the Trump administration since nearly the beginning, with additional screening measures added for the 2017 lottery which began on April 3. And now the President has decided to delay the Startup Visa rule that was meant to take effect in July 17, with plans to rescind the rule altogether. All of which make it increasingly more difficult for companies to find the skilled workers they need to grow their businesses or for foreign-born entrepreneurs to build a business at all. And this is saying a lot when 37% of Silicon Valley is foreign-born.

Meanwhile in Canada, we’re trying to make it easier. The Canadian government’s global skills visa program officially opened on June 12th. The 24-month pilot program is designed to allow high-growth firms to bring in international talent within two weeks, rather than up to a year.

The program seems pretty straight forward, but we sat with Evan Green, co-founder of Green and Spiegel LLP, an immigration law firm, to ensure we had a good handle on what would be involved, and of course we wanted to share that with you.


We’ve read that high-growth Canadian companies, as well as global companies investing in or relocating to Canada can apply for the Global Talent Stream, but as an employer, what do you actually need to do to prove that you are eligible?

The Global Talent Stream is comprised of two separate categories. For Category A of the Global Talent Stream, employers must be referred by one of Employment and Social Development Canada’s (ESDC/Service Canada) designated referral partners. The role of designated referral partners is to refer innovative Canadian companies who are legally constituted in Canada, have a focus on innovation, are seeking to scale up, have a willingness to grow, and demonstrate a need to hire an individual with unique and specialized talent. Unique and specialized talent is indicated by:

  • Advanced knowledge of the industry;
  • Advanced degree in an area of specialization of interest to the employer; AND/OR
  • Minimum of five years of experience in the field of specialized experience; AND
  • A highly paid position with a salary of usually $80,000 or more.

Category B of the Global Talent Stream is for employers seeking to hire highly-skilled foreign workers to fill positions in specific occupations found on the “Global Talent Occupations List.” The list is comprised of much-needed positions in the tech sector as follows:

  • Computer and information systems managers;
  • Computer engineers (except software engineers and designers);
  • Information systems analysts and consultants;
  • Database analysts and data administrators;
  • Software engineers and designers;
  • Computer programmers and interactive media developers;
  • Web designers and developers;
  • Electrical and electronics engineering technologists and technicians who earn a wage of at least $38.94;
  • Information systems testing technicians who earn a wage of at least $37.50;
  • Sub-set of 5241 Digital Media and Design [please note, additional criteria apply for this category].

Under both categories, employers are required to develop a Labour Market Benefits Plan (LMBP) that demonstrates a commitment to activities that will have a positive impact on the Canadian labour market.

Commitments within the LMBP are divided into mandatory and complementary benefits. Mandatory benefits for Category A must include creating jobs, while mandatory benefits for Category B must include increasing skills and training investments. Complementary benefits can include: job creation, investment in skills and training, transferring knowledge to Canadians, enhanced company performance and implementing best practices or policies as an employer for your workforce.

Employers must provide a list of activities and targets they will undertake to achieve for each benefit, examples of which include:

  • Increasing the number of Canadians or permanent residents employed full-time and part-time by the firm;
  • Establishing educational partnerships with local or regional post-secondary institutes or with other
    organizations that are supporting skills and training;
  • Paid co-op or internship programs;
  • Developing and implementing policies to support the hiring of underrepresented groups;
  • Directly training Canadians or permanent residents;
  • Directly supervising and mentoring Canadians or permanent residents;
  • Increasing growth of revenue, employment or investment; and
  • Developing/enhancing partnerships with organizations that assist with the identification of top domestic capital.

Notably, the LMBP does not require proof of advertising or recruitment. Moreover, it can be completed once per company and used to hire a multitude of employees under the program as needed on an ongoing basis.

Going forward, the progress of the LMBP will be monitored by ESDC approximately every 6 months to assess the performance of the Global Talent Stream and to determine the company’s continuing eligibility.

Immigration, Refugees and Citizenship Canada (IRCC) has set a two-week processing time for approvals of applications under this program that it expects to meet at least 80 per cent of the time. In practice, we have seen applications approved in even less time. However, this may be subject to change as more and more employers begin using the program.

Following approval from Service Canada, the applicant may then submit a work permit application at the port-of-entry or to their local consulate if they are from a visa requiring nation. IRCC has also guaranteed an expedited processing time of two weeks or less for consular applications from high-skilled workers.

Aside from legal fees, the cost of an application under the program is $1,000 per position. There is also an additional $155 work permit fee per applicant paid to IRCC after approval is received from Service Canada. Additional fees apply for accompanying dependants.

Our only caveat to employers is to ensure they do not over-promise when preparing their Labour Market Benefit Plans. While their internal business plans may be ambitious, the LMBP should not commit the company to any milestones they may have difficulty fulfilling when Service Canada reviews their progress.

For reasons such as this, we always recommend employers work with competent legal counsel for complex immigration applications. This greatly reduces the risk of refused applications as well as mitigating liability and compliance concerns after the work permits are issued.


On the flip side, what does a foreign-born worker need to know about the program? (e.g., cost, timelines, req. credentials for employer, hurdles to avoid, is legal assistance req, who should avoid program etc)

This new program provides a streamlined method for high-skilled employees to accept positions in Canada and begin working within a short timeframe.

There is no additional cost to employees other than those listed for the employers. Notably, employers are not allowed to recapture the cost of the immigration application from foreign-workers.

Employees should, however, ensure that their credentials are in order as listed on their resumes and job applications. Once the position is approved, IRCC will assess both their education credentials and prior experience to ensure the particular employee qualifies for the position in question.

In terms of foreign-workers who may wish to avoid the program, this could potentially include those who do not want a work permit tied to a particular employer. It can also include those who qualify and are interested in immigrating to Canada as a permanent resident from the outset and do not mind waiting an average of 6-9 months for that process.


How does this differ from the Temporary Foreign Workers (TFW) Program?

The Temporary Foreign Worker Program (TFWP) allows Canadian employers to hire foreign nationals to fill temporary labour and skill shortages when qualified Canadian citizens or permanent residents are not available. The benefit of this program is that it’s available to all employers and is not restricted to certain occupations or high-growth companies.

Under the program, most employers require a Labour Market Impact Assessment (LMIA) from Service Canada. A positive LMIA means that the employer has tried but has been unable to find a Canadian or permanent resident for the position, that the job offer is genuine, and that the employer has met job offer commitments to temporary foreign workers they have hired in the past.

The basic requirements include advertising the position per Service Canada requirements for a minimum of 4 weeks within 90 days before LMIA is submitted. Processing times can range from 3 weeks to 3 months following the advertising period. However, 10 day expedited service is promised for certain types of positions.

When applying, the employer must provide information on how many Canadians applied for the job, how many were interviewed, and why they were not hired. Employers must also be aware that Canadians cannot be laid off or have their hours reduced due to the hiring of foreign workers.

Given the recruitment requirements and timelines, LMIAs are primarily used if no other program is applicable. Notably, certain categories of workers may be exempt from the LMIA requirements due to an international trade agreement, such as NAFTA, or an agreement between the federal government and a provincial or territorial government.

In terms of costs, aside from legal fees, there is a $1000 government processing fee per LMIA application. If approved, there is an additional $155 CAD work permit fee paid to IRCC per applicant. Additional fees apply for accompanying dependants.


Do you have any predictions as to what this could mean for the Canadian tech ecosystem?

We believe the Global Skills program will be a tremendous boon to the Canadian tech industry. It provides our tech companies a competitive advantage over those hiring from the U.S. and other countries who must overcome much longer processing times and greater hurdles.  


What appetite are you seeing from Canadian employers to bring in foreign-born talent? How has this changed over the years?

With the rapid growth of the Canadian tech sector employers have exponentially increased their demand for high-skilled workers who often possess specialized skills and knowledge not readily available here at home.

However, until now, the greatest complaint we received from employers was the prolonged processing times and administrative hurdles before being able to on-board much needed talent. The pace of immigration was simply not keeping up with the pace of innovation and growth.

Hopefully the Global Skills program is the first chapter to working more closely with Canadian employers to ensure our immigration system is tailored to the ever-evolving needs of the modern economy.

Importantly, the benefits flow not just to our employers but to the Canadian workforce by making Canada an attractive and competitive place for investment and job creation. Harnessing global talent also results in the transfer of specialized skills and knowledge to domestic employees. The overall ability and skill-set of our workforce rises as a result.


Outside of the above program; what are the other options for foreign-born workers to enter tech in Canada and for employers to bring in skilled people?

See below chart for details. Please note that legal assistance is suggested for the below options.

If you are an organization looking to hire foreign-born talent, you should definitely connect with Evan Green. He can be contacted by completing this form.

If you are someone interested in making Canada your next career destination, please reach out! We’d be happy to discuss your options. You can reach us by sending an email to our Managing Director, Bruce Dorland.

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