Foreign Talent for Cannabis Companies
How does a Canadian cannabis company ensure that its choice of foreign expert can gain entry into Canada, and as quickly as possible? Perhaps the company needs a microbiologist, a finance expert, a logistics expert…
This blog is an overview of the legal issues facing cannabis companies and some practical measures to secure work permits for foreign workers in Canada.
Disclaimer: The information in this article is for general purposes, and is not intended as legal advice. Please contact a qualified immigration lawyer for assistance.
The Labour Market Impact Assessment process
A foreign expert needs a work permit to work in Canada. However, an employer cannot hire a foreign worker unless it persuades the government that it could not find a Canadian for the job. The process is lengthy, rigid and uncertain: before the foreign expert applies for a work permit, the employer must receive approval of a Labour Market Impact Assessment (LMIA) from Employment and Social Development Canada/Service Canada.
LMIA applications require a four-week recruitment campaign using three employment sources including the Canada Job Bank, with mandatory invitations to applicants with high-ranking Job Bank matches. A cannabis company will also need to provide a Transition Plan, in which the company explains how it will transition the position from the foreign expert to a Canadian worker, or help the foreign worker become a permanent resident.
Is there an easier way? Below are brief descriptions of some methods to bypass LMIAs. If an LMIA is ultimately needed, it can be handled effectively.
Bypassing LMIAs & LMIA Variations
Canadian immigration law allows for exceptions or variations to the LMIA process. Finding a viable alternative is the key to a faster, easier and less expensive process.
LMIA exemptions are grouped together in the International Mobility Program (IMP). Some of the following IMP categories may allow a company to bypass an LMIA. Please recognize that this is a brief summary; each case has nuances and details that must be considered.
1. Intra-company transfer. If a Canadian company has a foreign affiliate, it may transfer senior managers or those with ‘specialized knowledge’ to the Canadian operation. Among various requirements including length of time at the compnay, providing evidence of ‘specialized knowledge’, which must include proprietary knowledge, is essential. Without this element, an application may be refused. Please note that a foreign company with no Canadian operations may utilize this provision in ‘start-up’ scenarios.
2. Free Trade Agreement (FTA) Professionals. Canada has entered into numerous FTAs, the most well-known of which is NAFTA, soon to be replaced by the United States- Mexico-Canada Agreement (USMCA). These agreements generally have allowances for certain foreign professionals to work in Canada, but different FTAs have different rules. For instance:
- NAFTA – for Canadians, Americans and Mexicans. This FTA has a list of 60 occupations that can be sponsored to work in Canada, many of which may be applicable for cannabis companies. Some job descriptions include Plant Pathologist, Horticulturalist and Plant Breeder.
- CETA – The Canada European Union FTA. Under this FTA, occupations are not categorized; rather certain professionals with university-level education may qualify, who work either as contractual service suppliers or independent professionals.
- CPTPP – Trans-Pacific Partnership. This FTA governs various Pacific Rim countries including Australia, Japan and New Zealand. The CPTPP has similar but broader professional allowances compared to those in CETA. For these countries, technicians may also qualify.
- Individual FTAs with Chile, Colombia, South Korea, and Peru have varying professional provisions.
3. Reciprocal Benefit. In some cases, if a company provides employment opportunities to Canadians abroad, then Canada will allow that company to hire foreign workers in Canada. This is an underused provision that can often be helpful.
4. Significant Benefit. While this is a discretionary category, if there is a clear benefit to having a particular foreign worker in Canada, then that ‘significant benefit’ may provide for a successful LMIA bypass.
5. Other ‘work-arounds’. This blog cannot detail the full array of possible considerations, because each case’s unique characteristics may give rise to different strategies. In some cases, for instance, a candidate may qualify under Canada’s ‘International Experience Class’, bypassing issues noted above, with regional programs that may be applicable.
As noted above, if an LMIA is needed, then there may be ways to do a ‘better’ LMIA. For instance:
- In some cases, LMIAs can be expedited for certain occupations or senior positions; and,
- The government offers the Global Talent Stream (GTS), which allows streamlined LMIAs for employers seeking high-tech talent. However, GTS employers must meet certain targets like increased revenue, diversity training, etc., and are also audited.
Timing and location of filing are also important: consider when you have to file an application either at a Port of Entry (POE) or at a Visa Post.
For a foreign worker who does not need a visa, an application for a work permit can be made upon his or her arrival in Canada. However, the outcome of the adjudication is not known until the employee arrives, with the risk of rejection. The way to mitigate this risk, is through a pre- screen process that reviews applications in advance of arrival. The pre-screen adds approximately one week to the application process, but offers a degree of insurance against the unknown outcome of a POE adjudication.
In securing foreign talent, the cannabis industry can navigate the obstacles of the Canadian immigration system. Proper consideration of all elements of a case and the available strategies and procedures, can allow companies to take advantage of the opportunities, while avoiding the obstacles.
Be wary of the pitfalls, consider your options, and find good legal talent to help your company acquire foreign talent.