Canada British Columbia Immigration Agreement 2015 – Foreign worker protection (Annex B, section 9.4)

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Foreign workers in British Columbia (B.C.) who face a real and substantial risk of abuse as a result of potential employer non-compliance with applicable federal laws (for example, the Immigration and Refugee Protection Act [IRPA] and Immigration and Refugee Protection Regulations [IRPR]) or provincial laws (for example, the Employment Standards Act of the B.C. Government) may be eligible to receive a work permit that is exempt from the Labour Market Impact Assessment (LMIA) process, per section 9.4 of Annex B of the Canada-British Columbia Immigration Agreement 2015 (the Agreement), provided the foreign worker meets all other requirements of the IRPR. Annex B of the Agreement is valid until April 7, 2020.

The objective of these instructions is to provide protection to foreign workers who are at risk as a result of potential employer non-compliance by regularizing their status in Canada and providing them with the authorization to seek other employment, when appropriate.

This measure is available to all foreign nationals in B.C. who hold an employer-specific work permit for an employer located in B.C. or who are authorized to work without a work permit, per the IRPA and IRPR.

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Definition of abuse

For the purposes of this process, “abuse” is defined within the meaning of section R196.2.

Abuse consists of any of the following:

  • (a) physical abuse, including assault and forcible confinement
  • (b) sexual abuse, including sexual contact without consent
  • (c) psychological abuse, including threats and intimidation
  • (d) financial abuse, including fraud and extortion

Identifying real and substantial risk

For the purposes of Annex B, only settlement service providers, as specified by the B.C. Government, can identify a foreign national who is at real and substantial risk of abuse by an employer in B.C.

For more information, see the List of authorized service providers.

The settlement service provider should provide a summary of the case for an LMIA-exempt work permit for foreign nationals identified as “at risk in B.C.”. In addition, in these circumstances, the foreign national has the option of reporting abuse and applying directly to the Vancouver Immigration, Refugees and Citizenship Canada (IRCC) office for an open work permit, without the assistance of a settlement service provider.

In some cases the settlement service provider will be the foreign national’s first point of contact, and the service provider should assist with referrals to the appropriate enforcement agencies.

In other cases, foreign nationals may go directly to enforcement agencies as an initial point of contact. The B.C. Government will instruct enforcement agencies to refer foreign nationals seeking assistance to a settlement service provider.

Examples of enforcement agencies include:

  • Human Rights Tribunal
  • Canada Border Service Agency
  • Royal Canadian Mounted Police
  • WorkSafeBC
  • Employment Standards Branch of the B.C. Government (Employment Standards Branch)

General criteria

Officers may consider issuing a work permit in the following situations:

Non-compliance with provincial laws – Officer has reason to suspect potential employer non-compliance with any provincial law, resulting in real and substantial risk of abuse of a foreign worker

Examples of employer non-compliance with a provincial law may include but are not limited to the following:

  • employer non-compliance with the Employment Standards Act by charging job placement and recruitment fees or by repeatedly not paying wages owed to the foreign worker
  • employer violation of the Occupation Health and Safety Regulations whereby the employer is failing to provide a safe work environment, which creates undue hazards to the health and safety of the foreign worker or fails to correct unsafe working conditions

Non-compliance with federal laws – Officer has reason to suspect potential employer non-compliance with a federal law, such as the IRPA or IRPR, resulting in real and substantial risk of abuse of a foreign worker

Examples of employer non-compliance with a federal law may include but are not limited to the following:

  • employer non-compliance with the obligation to “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 that offer” [R209.2(1)(a)(iii)]
  • employer non-compliance whereby the employer has failed to comply with the conditions of the Temporary Foreign Worker Program (TFWP) or the International Mobility Program (IMP), such as failing to provide a workplace that is free of abuse, within the meaning of section R196.2, resulting in real and substantial risk to the foreign worker
  • employer non-compliance with the IRPA, such as trafficking in persons [A118(1)], which puts the foreign worker at real and substantial risk of abuse within the meaning of section R196.2

When work permits may be issued

Work permits may be issued by IRCC for any of the following purposes:

  • to assist a foreign worker who must leave the original place of employment to obtain an extension of temporary resident status, facilitating the search for a new position
  • to facilitate the participation of the foreign worker in the inspection or prosecution of an alleged employer or employment agency for non-compliance in Canada or otherwise assist authorities
  • for any other purpose the officer may judge relevant to facilitate the protection of the foreign worker who is at real and substantial risk as a result of potential employer non-compliance

B.C. foreign worker protection: points to consider

Evidence of real and substantial risk could include but is not limited to the following:

  • an official complaint filed by the foreign national to the appropriate enforcement agencies (for example, the Royal Canadian Mounted Police, the local police, WorkSafeBC, the Employment Standards Branch) regarding potential employer non-compliance with provincial or federal laws
  • an approved settlement service provider assisted the foreign worker with the summary of and supporting evidence for the allegations, such as the following:
    • a brief summary of the case
    • a copy of the official complaint form filed with the enforcement agencies (for example, a police or Canada Border Services Agency report, copy of the self-help kit process or official complaint completed by the foreign worker and submitted to the Employment Standards Branch)
    • an indication of which provincial and federal laws have not or appear to have not been complied with
    • additional documentation and evidence substantiating the complaint, as required
    • a description of the risk faced by the foreign worker
    • contact information for the foreign worker
    • supporting or additional material, such as a victim impact statement

Foreign nationals or settlement service providers may submit the summary of the case with any documents (detailed above) by mail or email to the Vancouver IRCC office.

Issuing work permits

Foreign nationals who have applied for a new work permit under Annex B of the Agreement are exempt from the requirement to obtain an LMIA, per paragraph R204(c), but are required to meet all other requirements under the IRPA and IRPR.

  • Open work permit

    The purpose of this work permit is to facilitate the transition of the foreign national to a new employer or to terminate their activities in Canada; therefore, the officer should consider issuing a work permit for a duration that would allow for this. Typically, approximately 180 days should allow the foreign national enough time to seek new employment and obtain a new employer-specific work permit and LMIA. Given the time-sensitive nature of the LMIA-exempt open work permits required for foreign workers at risk, officers are instructed to process work permit applications on an urgent basis.

    Duration: Typically, applicants will need approximately 180 days to find new employment and obtain a new employer-specific work permit.

    Code: LMIA exemption code T13

    Extensions: Extensions can be granted on a case-by-case basis at the discretion of an IRCC officer.

    Fees: The work permit processing fee and open work permit holder fee are required.

  • Employer-specific work permit

    Given the time-sensitive nature of the LMIA-exempt employer-specific work permits required for foreign workers at risk, officers are instructed to process work permit applications on an urgent basis.

    Duration: The duration of the new employer-specific work permit will be based on the duration of employment indicated in the offer of employment provided by the new employer.

    Code: LMIA exemption code T13

    Extensions: Refer to existing work permit renewal guidelines for information on extensions.

    Fees: The foreign national is required to pay all applicable fees with respect to the employer-specific work permit. The new employer is responsible for paying the compliance fee.

    Note: In cases where the foreign national has found another employer, and the employer has already obtained an LMIA, an employer-specific work permit may be issued by IRCC on an urgent basis.

Interview

Upon receipt of the case from the settlement service provider or directly from the foreign national, IRCC staff will arrange an in-person or telephone interview with the foreign worker. Arrangements for the interview can be made directly with the foreign worker or through the settlement service provider. In-person interviews are preferable, if logistically feasible for the foreign worker.

Officers may use their discretion to determine whether or not an interview is required.

Remarks in the Global Case Management System

IRCC officers must do all of the following:

  • Enter an information note in the Global Case Management System (GCMS) indicating “Canada-British Columbia foreign worker annex – Worker protection”
  • In cases where the foreign worker has an LMIA under the TFWP, notify the Employment and Social Development Canada tip line and the police, if not already done
  • In cases where the foreign worker is LMIA-exempt under the IMP, notify the Case Management Branch, Investigations and Exceptional Cases Division, to file a report of potential employer non-compliance and trigger an inspection by Service Canada or IRCC

Spouse or common-law partner and dependent children

A dependent spouse who is currently in Canada may be eligible to apply for an open work permit, under paragraph R204(c), if the principal foreign worker has been issued an open work permit that is valid for a period of 6 months. Spouses have their work permits issued under the same program and for the same duration as the principal applicant.

In the event that the dependent spouse is working for the same employer and is also found to be at real or substantial risk, the officer must add a note in GCMS, under the spouse’s unique client identifier, with that information for inspection purposes.

In the event that the immigration status of dependent children who are currently in Canada, accompanying the principal foreign worker, is expiring before the end of the open work permit, a new temporary resident visa or study permit may be issued for the same duration as the principal applicant’s.

List of authorized service providers

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