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FEDERAL PROVINCIAL AGREEMENT

The following are three major issues that impact the ability of foreign nationals to work in Canada for a charitable or religious organization:

 

Are you looking to work or volunteer in Canada?

The first distinction that must be made here is between actual “work”, which does require a Canadian work permit, and volunteering, which does not. “Work” is typically associated with a full-time activity that is rewarded through the payment of regular and periodic wages. Volunteering on the other hand usually consists of giving one’s free time to engage in an activity without the expectation of remuneration. Examples of such activities could be helping out a particular political party, or raising awareness about a particular issue. In such situations the foreign national is not considered to be entering the Canadian labor market and a work permit is therefore not required.

 

Is a Labour Market Impact Assessment (LMIA) required?

Once established that “work” is being performed, other factors must be assessed to determine whether a Labour Market Impact Assessment (LMIA) exemption is appropriate in a given situation. The LMIA is the labour market test used by the Canadian government to evaluate if the arrival of a foreign worker may have a positive, negative, or neutral impact on workers in Canada. 

 

When answering if there is a need for an LMIA in this context, the nature of the organization must be determined. In order to qualify for the LMIA exempt work permit, the organization must be either charitable or religious, meaning it must be non-profit, and have as its primary goal the relief of poverty, the advancement of certain important community interests, or the benefit of educational or religious institutions. It is not an absolute requirement that the organization be a registered charity but this does help in this determination.

 

What is the nature of the work that will be performed?

After the issue of the nature of the organization is resolved, the nature of the work must then be assessed. Simply working for a qualifying organization is not sufficient for a foreign national to be eligible for the LMIA exemption. Instead, it must be demonstrated that the work being performed by the foreign national actually constitutes charitable or religious work. For this certain factors are taken into account, such as if the work performed by the foreign national serves to advance the charitable or religious mandate of the organization or whether the organization will benefit financially from the foreign national’s work. The more in-line this work is with the stated goal of the organization and the less the organization will receive remuneration as a result of the worker’s services, the more likely the work is to be considered charitable or religious.

 

Clergy Work Authorization

With respect to religious work, foreign nationals that can be classified as members of the “clergy” do not in fact require work permits to practice in Canada. This exception is tightly circumscribed and applies only to foreign nationals coming to engage in traditional religious activities, such as the preaching of doctrine or presiding over public worship. Working for a religious entity, such as a church or synagogue, could be indicative of the presence of religious work, but it is by no means conclusive in this regard. If the work being done is wholly unrelated to the religion in question, for example if the worker is performing bookkeeping or accounting work, then a work permit would be required.

 

For those who do meet the strict definition of religious worker, while a work permit is not required, the foreign national in question might still want to apply for one for practical reasons. Examples of these could be to avoid having to constantly extend the 6 months stay allotted to temporary visa holders if they are staying longer than this, or to grant their spouse the ability to apply for an open work permit to be able to accompany them to Canada and work legally while here. In such cases the work permit the religious worker would be applying for is LMIA exempt under exemption code C-50.

 

Federal-provincial foreign worker agreements, or foreign worker annexes to broader federal-provincial immigration agreements, include provisions that allow work permits to be issued without requiring a labour market impact assessment (LMIA).

Work performed under an agreement that may be considered for an LMIA exemption under paragraph R204(c) (LMIA-exemption code T13) must fall under 1 of the following categories:

 

For LMIA-exempt, employer-specific work permit applications after nomination by province, the employer is required under section 209.11 of the Immigration and Refugee Protection Regulations (IRPR) to use the Employer Portal to submit the offer of employment directly to Immigration, Refugees and Citizenship Canada (IRCC) and pay the $230 compliance fee before the foreign national makes an application for a work permit.

 

As per the IRPR, employers must provide the following information in the offer

  • –  Their name, address and telephone number and their fax number and electronic mail address, if any

  • –  The business number assigned to the employer by the Minister of National Revenue, if applicable

  • – Information that demonstrates that the foreign national will be performing work described in section 204 or 205 or is a foreign national described in section 207

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In addition, prior to any work permit application, employers must make the following attestations in order to submit an offer of employment in the Employer Portal, or using the IMM 5802, as authorized:

 

Declaration of employer (as of September 26, 2022):

1. I attest that I have entered into an employment agreement with the foreign national that provides for employment in the same occupation and the same wages and working conditions as those set out in the offer of employment. I attest that the employment agreement is drafted in the foreign national’s chosen official language of Canada and is signed by myself and the foreign national, and that I have provided a copy of the employment agreement to the foreign national.

2. I attest that I have not, directly or indirectly, charged or recovered from the foreign national the fee referred to in subsection 303.1(1) of the Immigration and Refugee Protection Regulations [compliance fee] 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) of the Immigration and Refugee Protection Regulations [temporary resident visa, temporary resident permit and work permit fees].

3. I attest that I have ensured that any person who recruited the foreign national on my behalf did not, directly or indirectly, charge or recover from the foreign national the fee referred to in subsection 303.1(1) of the Immigration and Refugee Protection Regulations [compliance fee] 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) of the Immigration and Refugee Protection Regulations [temporary resident visa, temporary resident permit and work permit fees].


When completing the offer of employment, employers also sign indicating the following certifications:

1. I certify that I am actively engaged in the business in respect of which the offer of employment is made and understand that I must remain so during the period of employment for which the work permit is issued to the foreign national.

2. I certify that I am compliant with, and will comply with, the federal/provincial/territorial laws that regulate employment and the recruitment of employees, in the province/territory in which it is intended that the foreign national work and, if applicable, with the terms and conditions of any collective agreement.

3. I certify that I will provide the foreign national 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 are substantially the same as — but not less favourable than — those set out in the offer.

4. I certify that I will make reasonable efforts to provide a workplace that is free of abuse which includes physical, sexual, psychological or financial abuse and includes reprisals against foreign nationals.”