There could be maybe few issues as irritating for the potential employers of overseas staff than to undergo the Labour Market Affect Evaluation course of solely to be taught that they weren’t thought of to be an employer by the Division of Employment and Social Growth Canada.
In line with the Non permanent Overseas Employee Program guide, an employer is an entity (e.g. individual, enterprise, company or group) that makes a proposal of employment to a number of overseas nationals who present labour in return for compensation for a specified time period. The employer is usually the entity that hires, controls working circumstances and remunerates the overseas nationwide.
The Handbook additional states:
Entities Thought-about the Employer of a Overseas Nationwide underneath the TFW Program:
Canadian-Based mostly Entity
An individual, enterprise, company or group primarily based in Canada that makes a proposal of employment to a number of overseas nationals.
Overseas-Based mostly Entity
An individual, enterprise, company or group that’s not primarily based in Canada that makes a proposal of employment to a number of overseas nationals to work in Canada. For identification functions, it’s strongly beneficial that the foreign-based employer get hold of a Canadian enterprise quantity to facilitate the TFW Program’s evaluation of their genuineness.
Group of Employers
In circumstances the place two or extra entities are decided to share employer obligations by the Division, a gaggle of employers might make a proposal of employment to a overseas nationwide.
• All events dealing with employer obligations regarding the employment of a overseas nationwide (through an LMIA) are thought of to be a part of a gaggle of employers for the aim of the TFW Program.
• The Division determines who is ready to apply underneath a Group of Employers, together with whether or not employers ought to be included or excluded primarily based on the relation to the overseas employee being supplied a place.
The roles and obligations of every celebration have to be clear and outlined on the time of utility,
together with whether or not employment obligations are occurring sequentially or concurrently
(together with an outlined interval the place the overseas nationwide could be reporting to a selected entity).
• All events could also be held collectively accountable in circumstances of non-compliance.
Unbiased Contractors
For the aim of the TFW Program, in circumstances the place a self-employed overseas nationwide’s providers have been contracted by a Canadian firm, and the self-employed particular person is providing their providers solely to that agency and is required to carry out work inside Canada, the contract ought to be evaluated because the job supply. The contracting agency is taken into account to be the employer.
Self-employed – Operation of a enterprise in Canada (owner-operator)
For the aim of the TFW Program, in circumstances the place a self-employed particular person needs to enter Canada to determine or buy a enterprise and be concerned in its day-to-day operations, the marketing strategy or contract to buy shares in a enterprise ought to be evaluated because the job supply
Possession of shares doesn’t assure {that a} overseas nationwide would qualify as an proprietor operator. The time period owner-operator usually refers to small enterprise homeowners and doesn’t consult with people who obtain shares as a part of a compensation bundle. To qualify as an owner-operator the overseas nationwide ought to be capable of set up a degree of controlling curiosity within the enterprise (e.g. a majority or plurality of shares, shouldn’t be in a position to be fired) and be actively concerned in its operation. Overseas nationals who don’t meet this definition wouldn’t qualify for the Program exemptions underneath owner-operator.
Entitities Not Thought-about the Employer of a Overseas Nationwide underneath the TFW Program
Canadian Firm contracting providers to a overseas agency
A Canadian firm that’s engaged in enterprise (e.g. contracting providers or companions) with a overseas primarily based firm that employs a overseas nationwide shouldn’t be the employer and as such shouldn’t submit the LMIA utility on behalf of the foreign-based firm.
Father or mother Firm
In conditions the place an employer is legally owned by a guardian firm, however the guardian firm doesn’t have day-to-day management over enterprise operations that the TFW could be concerned in, the guardian firm wouldn’t be thought of the employer.
Third-party Representatives
Handbook Officer
IRCC Req Q&A
