Operational Bulletin 523 – May 22, 2013

The Purpose

This Operational Bulletin (OB) provides operational guidelines to:

• Officers for processing work permits and,
• Employers and Foreign Nationals (FNs) for disseminating information

Foreign nationals would include people who are:

• Either working currently in Canada or,
• Considering coming to Canada to work temporarily

The purpose of this OB is to provide information about the Cumulative Duration (4-Year maximum) regulation. This regulation came into effect on April 01, 2011. It began affecting applicants sometime during the spring of 2013.

Background

The authorities established the Temporary Foreign Worker Program (TFWP) to address:

• Temporary labour shortages in Canada and,
• Temporary skills shortages in Canada

As a result of the TFWP, several foreign nationals would enter Canada to work on a temporary basis. Because of this, these workers would end up staying in Canada for prolonged stretches of time. This would result in them losing ties with their countries of origin.

Therefore, the authorities wanted to:

• Keep foreign nationals from losing ties with their countries of origin and,
• Encourage workers and employers to explore the appropriate avenues for permanent residence

To accomplish this objective, the authorities came up with the R200 (3) (g) regulation. This regulation comes under the Immigration and Refugee Protection Regulations. This regulation prescribes the maximum duration that a Temporary Foreign Worker could work for in Canada.

The regulation states that an officer should not issue a Work Permit (WP) when the individual has worked in Canada for one or more periods aggregating to a duration of four years.

Therefore, if a foreign nation accumulates four years of work, they would become ineligible to work in Canada thereafter. Therefore, they would need to wait for a period of four years, before becoming re-eligible to work in Canada.

Therefore, consider a situation where a Temporary Foreign Worker has gained three years of work in Canada. This worker now, applies for a two-year work permit. That too, in an occupation that does not form a part of the exception categories. The officers would only issue the work permit for a duration of one year.

Note:

• When officers issue a work permit, they would need to issue the work permit for a duration that brings the applicant to the Four-Year maximum, without exceeding it
• The only exception this is when the applicant’s work permit forms part of one of the exception categories, defined subsequently in this document

All Work Counts – Types A and B

A Temporary Foreign Worker’s four-year total of work includes all work performed in Canada since April 01, 2011. This is regardless of whether this work was:

• Authorised by a work permit or,
• Exempted under R186

This four-year total of work also includes work done as:

• A volunteer
• A self-employed individual
• A worker in all occupations, which fall under all categories in the National Occupation Code (NOC) list
• A worker under an implied status and,
• A worker on an open work permit

While filling up their work permit application form, foreign nationals would need to provide certain employment details. This includes providing a history of employment dating back 10 years. This history of employment must cover all periods of work in Canada. This includes work that does not require a work permit.

An officer would need to verify this information provided with the information mentioned on the system data. The officer would also need to determine whether the foreign national needs to include these periods of work in the total work calculation.

Please note that situations could arise where the authorities allowed the foreign national to study in Canada on a fulltime basis. Foreign nationals can work while they study in Canada on a fulltime basis. Therefore, foreign nationals do not need to include any work details they performed while studying in Canada, on their work permit application form. This would not be a part of their cumulative duration totals.

Exceptions – Type C

The possibility exists where a temporary foreign worker works within one of the occupations or categories listed as ‘exceptions’ to the cumulative duration regulation. In this situation, the temporary foreign workers would need to count the time worked in Canada as part of the Temporary Foreign Worker’s cumulative total.

These exceptions tend to become relevant at certain points. These include stages like:

• The point of application or,
• The point of request for a work permit

Therefore, an officer could issue a work permit to a Temporary Foreign Worker with a job offer. This job offer could belong to one of these occupations or categories too. This is regardless of whether the Temporary Foreign Worker has acquired four years of work in Canada or not.

Example: A foreign national has a work permit expiring on April 02, 2015. The authorities have also permitted the foreign national to work as a university professor in Canada since April 02, 2011. The university informs this individual that they would not require the individual’s services effective February 2015. However, because this individual wishes to stay on in Canada, the individual takes up a job for planting trees in a Canadian province for one year. The individual submits an application in Canada for a new work permit on March 01, 2015. The officers processing the work permit application check the data on their systems. They find that the individual has 3 years and 11 months of cumulative duration. They also find that the new work is not a part of the exceptions category. Therefore, in this situation, the officers would:

• Either issue a work permit that is valid until April 02, 2015 or,
• Reject the application under R200 (1) (b)

The Gaps in Employment

Officers have the authority to factor in periods not worked into the calculation of the accumulated total. This is beyond the expectations listed in the job contract. It also takes into account periods not worked that:

• Took place after April 01, 2011 and,
• Took place during the validity period of any work authorisations issued after April 01, 2011

However, in this scenario, officers might need to verify documentary evidence for these gaps in employment. Therefore, applicants would need to provide documentary evidence for these gaps in employment to an officer, when the applicants request for work authorisation.

Officers would only consider gaps in employment that comprise one consecutive month or more. In addition, the applicants bear the complete responsibility for:

• Indicating this intent and,
• Providing supporting evidence at the time of application that is satisfactory

Typical examples of gaps in employments that officers would deem as being satisfactory would include:

• Periods of time spent outside Canada
• Periods of medical leave spent within Canada (especially if this duration is not covered by the employment agreement or contract) or,
• Any period of maternity or paternity leave spent in Canada

Note:

• Officers would not consider the following as gaps in employment or for reducing the time worked:
• Weekends
• Vacations
• Part-time work or,
• Alternative working arrangements

The Situations When the Clock Resets to Zero

Temporary foreign workers could apply for a work permit. They could also start the process of accumulating another four years of work in Canada if they spend four consecutive years:

• Outside Canada or,
• Inside Canada without working (i.e. with a legal status as a visitor or a guest)

Note:

• A Temporary Foreign Worker does not need to have worked in Canada for a full four year term before the four-year period of not working in Canada begins
• As long as the Temporary Foreign Worker spends a period of four years of not working in Canada, the clock of cumulative duration resets itself to zero. This is regardless of whether the Temporary Foreign Worker worked for:
• One year or
• Three years and 11 months

The Responsibility of the Temporary Foreign Workers to Keep a Track of the Time Worked

Foreign nationals would need to keep a record of their accumulated time worked in Canada. This is the current situation as of April 01, 2011.

The authorities encourage the temporary foreign workers to:

• Track their time worked in Canada and,
• Retain any documents that support any gaps in employment during the validity periods of previous work authorisations (especially if the temporary foreign workers intend reclaiming the time)

The temporary foreign workers would need to do this when they apply for a work permit. This would help the officers processing the applications to complete processing applications in a timely manner. It would also nullify the prospect of unnecessary delays etc.

The authorities also require temporary foreign workers to disclose their 10-year employment history in their work permit application. This is in accordance with the current requirements specified by Citizenship and Immigration Canada.

When hiring temporary foreign workers, employers would need to consider the cumulative total. This would enable them to hire temporary foreign workers for the entire duration required.

The Decision Making Process for Issuing a Work Permit or an Extension When Considering Cumulative Duration

• Is the foreign national seeking employment or work in Canada?
• Officers would need to check whether the activity meets the definition of work under IRPA
• In case the activity does not meet the definition of work in Canada, cumulative duration is not applicable
• Does the foreign national require the issuance of a work permit?
• Officers do not need to issue a work permit to foreign nationals under certain circumstances
• These prohibitions only apply in the context of work permit applications
• This is in accordance with subsection 200 (3) of the regulations
• Is the work the foreign national intends to perform an exception to the cumulative duration requirement?
• The foreign national may or may not have already acquired four years (or more) of work in Canada
• However, regardless of this, officers would not consider the cumulative duration regulation if the foreign national is applying to work in an occupation that falls within the specific categories, which are an exception to the regulation
• In these scenarios, officers could issue work permits to the foreign nationals
• Officers would need to check the circumstances under which they could issue work permits to a foreign national, despite the fact that the foreign national has worked in Canada for a cumulative duration of four years
• They could refer to subparagraphs R200 (3) (ii) and R200 (3) (iii) for more details
• Has the foreign national worked in Canada for a cumulative duration of four years?
• Officers should not issue a work permit when the individual has worked for one or more periods that amount to a cumulative total of four years
• This direction comes from paragraph R200 (3) (g) of the IRPR
• This section refers to the fact that the foreign national has worked in Canada, even as it remains silent about whether or not the foreign national has a work permit
• Therefore, this means that officers would need to consider any activity that meets the legislative definition of work as part of the four years of cumulative duration
• This is regardless of whether the foreign national has a work permit or not
• There is only one situation where an exception is given to this rule
• The exception that officers would need to consider is a period of work in Canada, where the foreign national performed work, when the authorities granted the foreign national the authorisation of studying in Canada on a fulltime basis
• Therefore, officers would not consider any period where the foreign national performed work, when the foreign national had the requisite authorisation for studying in Canada on a fulltime basis, as part of the calculation of the four-year period
• This has been specified in R200 (4)
• Officers could determine the accumulated time worked in Canada by a foreign national by referring to the records in the system
• For this, the officers would need to start examining the most recent record and go back no further than April 01, 2011
• Then, the officers would need to add the full durations of periods, for which the authorities granted an authorisation to the foreign national to work in Canada
• Example: If the authorities issued a two-year work permit to a foreign national based on the job contract, the officers would treat these two years as being part of the four-year cumulative duration period. However, if the foreign national can provide documents that prove that a gap in employment exists, the officers would take the period of gap in employment into consideration
• Officers have the authority to issue a work permit for a shorter duration than requested
• This would apply in those situations where issuing a work permit for the complete duration would result in the foreign national exceeding the four-year maximum
• The issuing of work permits for shorter spans of time is in accordance with the cumulative duration regulation R200 (3) (g)
• In these situations, the processing officers would need to enter visible remarks on the work permit
• This is to ensure that the work permit indicates the reason for issuing the work permit for a shorter span of time than usual
• It is also to highlight that the authorities would not approve any subsequent extensions of this authorisation
• Has a period of four years elapsed since the day when the foreign national accumulated four years of work in Canada?
• The applicant or foreign national bears the entire responsibility for satisfying the officer that the period of four years of work have been accumulated
• Once the applicant spends four years of time without working in Canada, the clock for cumulative duration resets itself to zero
• Example: A worker accumulates four years or less of time worked in Canada since April 01, 2011. Then, the worker leaves Canada and returns to Canada in four years. In this situation, the cumulative total resets to zero. Therefore, the worker becomes eligible again for working in Canada, for another period of four years.
• What are the situations where officers could refuse a work permit application or request?
• Officers could refuse a work permit application or request when:
• A foreign national has worked in Canada for one or more periods amounting to four years and,
• Four years have not elapsed since the day on which the foreign national accumulated four years of work in Canada
• This denotes refusal under R200 (3) (g)
• Officers could also refuse a work permit application or request when:
• Officers are not satisfied that the foreign national would leave Canada at the end of period authorised for their stay
• Officers could grant some consideration in case:
• The foreign national only has a short term left of their maximum four years of work in Canada and,
• The foreign national’s job offer duration exceeds the amount of time remaining
• In this situation, officers could issue a work permit for a shorter span of time to the foreign national, as a short-term work permit would prevent the foreign national from exceeding the four-year maximum
• However, this could act as a temptation for the foreign national to stay in Canada beyond the authorised period of stay
• Therefore, officers could resort to refusing to provide a work permit under R200 (1) (b)
• R200 (1) (b) is applicable for all work permit decisions, even in cases where exceptions to R200 (3) (g) are applicable

Note:

• Officers would need to include certain details in the system notes. These include:
• Cumulative Duration calculations and,
• Cumulative Duration determinations

Clarifications Concerning the Types of Occupations that Count Towards a Temporary Foreign Worker’s Total and Situations Where the Exceptions are Relevant

• Type A: All work performed in Canada after April 01, 2011 counts towards cumulative duration
• This includes:
• All NOCs, LMO-required and LMO-exempt occupations
• Open work permits (including post-graduation work permits)
• R186 authorisations (work permit exempt)
• Internships (as long as they are not a part of fulltime studies as a student)
• Unpaid work
• Work as a volunteer and,
• Self-employed foreign nationals (including physicians under C10, business owners under C11)
• Type B: This includes work not counted as prescribed in R200 (4)
• This includes:
• Work done as a fulltime student
• Internships while authorised to study fulltime and,
• Other employment while authorised to study fulltime
• Type C: These categories or occupations serves as exceptions in which a work permit could exceed the four-year limit, when a foreign national applies for a work authorisation. This is in accordance with R200 (3) (ii) and R200 (3) (iii).
• It includes:
• NOC 0 and A
• LMO-exempt jobs under (refer to Note):
• International agreements i.e. R204 (a) and R204 (b) e.g. NAFTA
• Canadian interests (R205)
• Self-support (R206) and,
• Humanitarian reasons (R208)
• Applicants under the Seasonal Agricultural Workers’ Program (SAWP)
• R186 – as these individuals do not require a work permit. Therefore, there is no basis for assessing cumulative duration of work done in Canada (refer to Note, third point)
• Permanent Resident (PR) applicants, who have received one of the following in the permanent resident category, within which they have applied:
• A positive selection decision or,
• An approval principle
• Provincial nominees applying for an employer-specific work permit under R204 (c)
• In this situation, officers would need to check that the nomination is both, valid and current

Note:

• This has reference to spouses of temporary foreign workers, who are LMO-exempt
• Only spouses or dependents of skilled temporary foreign workers (NOC 0 and A) would be exempt from the cumulative duration considerations, when they seek a work permit
• R186:
• Situations could arise where a foreign national has an exemption under R186
• This foreign national could opt for applying or requesting for a work permit for personal reasons like provincial benefits
• In this scenario, the processing officer would be obligated to evaluate the foreign national’s accumulated time worked in Canada
• In addition, the officer would need to ensure that the work permit does not exceed the four-year maximum allowed

The List of Possible Proof Documents for Supporting Gaps in Employment Occurring After April 01, 2011

The list includes documents like:

• Passport entry and exit stamps
• Official documents that highlight that the employment started and ended on certain dates including:
• A Record of Employment or,
• A proof of receipt of severance pay
• A letter from a foreign educational institute that mentions that the foreign national attended their institution for a specific period of time during the work permit authorisation
• Travel receipts that demonstrate that the foreign national was out of the country for a specific period during the work permit authorisation. This would account for a period other than a period of paid leave (e.g. sick leave, vacation leave etc.) from their employment. In this situation, officers would need to check the terms and conditions of the contract. This would help them compare the receipts with the information regarding period of employment. This would help them assess whether the contractual terms covered the leaves or not. Travel receipts could include:
• Tickets and,
• Boarding passes
• Proof of receipt of maternity or parental benefits
• A letter from a physician confirming that the foreign national was on medical leave for a specified period. In this situation, officers would need to check the terms and conditions of the contract. This would help them compare the letter with the information regarding period of employment. This would help them assess whether the contractual terms covered the leaves or not.
• A letter from a Province or Territory supporting the issuance of a new work permit that indicates the gap in employment. This would be valid in case the foreign national did not complete the full duration of a work permit because of:
• Poor working conditions or,
• A workplace injury
• A letter from the Group of Employers (GoE) Administrator that mentions that the foreign nationals working under the GoE Agreement could experience short periods where they have no work between projects

Examples of the Four-Year Maximum Rule

Some examples of the four-year maximum rule include:

• A temporary foreign worker has accumulated three years of work in Canada since April 01, 2011. This worker now applies for a two-year work permit in an occupation that the authorities have not included in the list of exceptions. In this situation, the officers would issue a work permit for one year only.
• A foreign national works for three years. Then, the foreign national leaves Canada for three years, before applying for a two-year work permit. The officer would issue a work permit for the duration of one year. Upon completion of this one-year term, the foreign national would need to wait for the conclusion of a period of four years, during which the foreign national cannot work in Canada. Upon completion of this period of four years of not working in Canada, the foreign national can apply for a work permit again. Had the foreign national waited for another year outside Canada – when the foreign national had left Canada for three years, the foreign national could have worked for another four-year period in Canada.
• The foreign national works for three years and 11 months in Canada on a work permit. Then, the foreign national stays outside Canada for a period of three years. Thereafter, the foreign national enters Canada to work under R186 for a period of two months. Then, the foreign national leaves Canada again. In this situation, the foreign national is not eligible for a work permit. This individual would need to wait for the conclusion of a period of four years without working in Canada, before applying for another work permit.

More Information

Individuals would need to refer to the “Work in Canada” page of the website of Citizenship and Immigration Canada. This page provides further information on the four-year maximum rule.

Source: Citizenship and Immigration Canada (CIC)