Operational Bulletin 580 – June 23, 2014

Summary

This Operational Bulletin (OB) provides guidance to officers processing work permit applications. It informs them of the latest processes to follow in relation to the regulatory change of June 20, 2014.

The regulatory change of June 20, 2014 provides an exemption to foreign artists from entering Canada to perform in:

• A bar
• A restaurant or,
• A similar establishment

It exempts these foreign artists from having to obtain a work permit from Citizenship and Immigration Canada (CIC). It also gives the foreign artists an exemption from the requirement of employers needing to seek a Labour Market Impact Assessment (LMIA). Earlier, employers would have needed to approach Employment and Social Development Canada (ESDC). Based on their discretion, the ESDC would have issued the LMIA to the employer.

The Former Provisions

The earlier provision demanded that foreign performing artists needed to obtain an LMIA. Only after obtaining an LMIA, could these foreign performing artists apply for a work permit.

Foreign performing artists needed an LMIA as per the existing guidelines. This was especially so, in case they gained employment at a venue, whose primary purpose was to sell food and drinks. This included venues like:

• Bars and,
• Restaurants

The New Provisions – The Amendment to 186 (g) (ii) of the Immigration and Refugee Protection Regulations (IRPR)

The authorities have made the necessary amendments to R186 (g) (ii). The amendment has removed the reference to: “…nor performing in a bar, restaurant or similar establishment”.

The amendment to the Immigration and Refugee Protection Regulations (IRPR) achieves the following two objectives. It provides consistent treatment to foreign artists. That too, regardless of the type of venue. The amendment also works towards simplifying the administration of the current LMIA process

The Rationale

The amendment to the Immigration and Refugee Protection Regulations (IRPR) achieves the following two objectives. It:

• Provides consistent treatment to foreign artists, regardless of the type of venue and,
• Simplifies the administration of the current LMIA process 

Temporary Foreign Worker Guidelines (FW1) and Processing Instructions

With the issuance of these new guidelines and requirements, the authorities would be compiling a set of instructions and guidance rules for officers. The authorities would make the necessary amendments to:

• Section 5.8 of FW1 and,
•  Appendix A of FW1

According to these regulatory amendments, any foreign performing artists would be eligible for a work permit exemption. The current guidelines form the basis for this decision. This includes foreign performing artists like:

• Foreign-based musical individuals and groups,
• Foreign-based theatrical individuals and groups and,
• Any essential crew associated with these foreign-based musical and theatrical individuals and groups, including:
• Bands
• Musicians

However, these foreign performing artists would only be eligible for a work permit exemption if:

• They perform at venues, whose primary purpose is to sell food and drinks for time-restricted engagements as specified in the current guidelines

Foreign performing artists would still need to provide a work permit and an LMIA, if they are:

• On the production of film, television or radio broadcasts
• Not performing in a time-limited engagement or,
• In an “employment relationship” with the organisation or business in Canada, which has contracted the foreign performing artist for their services e.g. like a permanent piano bar employee

The Process for Work Permit Applications Received with a Positive and Valid LMIA Attached

The process to follow for Work Permit applications received with a positive and valid LMIA attached is:

• For Officers of Citizenship and Immigration Canada (CIC), based in Canada and overseas:
• If they received the work permit applications with a positive and valid LMIA attached:
• Prior to June 20, 2014:
• They would process the work permit applications as per the previous regulations
• On or after June 2014:
• They would need to see whether the initial assessment confirms the eligibility for the WP exemption
• If the initial assessment confirms the eligibility for the WP exemption, officers would need to follow existing procedures for applications received in the incorrect category
• Officers would also need to spare no efforts in facilitating clients during this period of transition
• This is because the objective behind this Regulation change is to provide assistance and guidance to these clients
• For Border Services Officers at the Port of Entry (POE):
• They would come across cases where they process work permit applications for foreign performing artists entering Canada (in accordance with the amended R186 (g) (ii))
• In these cases, Border Services Officers would not need to assess the venue when they determine whether the foreign performing artist requires a work permit or not
• This is applicable with immediate effect

Source: Citizenship and Immigration Canada (CIC)