Assessing the genuineness of the offer of employment on a work permit application

In addition to assessing the intent of the foreign national to enter Canada for a temporary purpose, when assessing a Labour Market Impact Assessment (LMIA)-exempt, employer-specific work permit application, officers must also assess the genuineness of the offer of employment submitted by the employer as per section R209.11 of the Immigration and Refugee Protection Regulations (IRPR) as part of ensuring that the requirements of clause R200(1)(c)(ii.1)(A) are met.

A negative assessment of the genuineness of the job offer should result in work permit refusal.

Open work permits are not subject to the assessment of the genuineness factors in subsection R200(5), since there is no employer involved.

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Factors to consider

As per section R209.11, employers are required to submit their offer of employment directly to Immigration, Refugees and Citizenship Canada (IRCC).

In the system’s “Organization and Entity” screen tab, the sub-type “Regulatory Employer” indicates that the account was created by the employer using the Employer Portal.

The offer of employment must be fully complete in order for the processing officer to determine the genuineness of the offer. If the offer of employment is incomplete or has “See attached” in any field, the officer may not have sufficient information to assess the genuineness of the job offer. If the offer of employment is incomplete, please see International Mobility Program: Employer-specific work permits with Labour Market Impact Assessment exemptions for further processing instructions.

Important: Subparagraph R209.2(1)(b)(i) makes it a condition that employers demonstrate that any information they provided under subparagraph R200(1)(c)(ii.1) or section R209.11 is accurate. Officers should always ensure that any new information or confirmations are received directly from the employer. They must come from the employer in order to be inspected for accuracy. Information submitted by the work permit applicant about the employer is not relevant to a compliance inspection.

To determine the genuineness of the offer of employment in all employer-specific work permit applications (new and extensions), 4 factors should be assessed.

The offer of employment submitted directly to IRCC must meet all of the following conditions:

  • be made by an employer who is “actively engaged” in the business
  • be consistent with the reasonable employment needs of the employer
  • have terms the employer is reasonably able to fulfill
  • be from an employer or their authorized recruiter who has shown past compliance with federal and provincial or territorial laws that regulate employment or recruitment in the province or territory where the foreign national will be working

When an officer does more than a cursory review (that is, more than only reviewing information in the business information section of the Global Case Management System [GCMS] or a quick internet search of the employer), they should indicate in the “Case Notes” the steps they took and the results. This will assist in any inspections and in future work permit processing.

If the officer has concerns regarding the employer or the genuineness of the offer of employment, the officer may request further information directly from the employer as per the contact information supplied in the offer of employment. Subparagraph R200(1)(c)(ii.1) provides officers the authority to request information from employers without having to use the foreign national applicant as a conduit for that request.

The employer’s contact information should be included in the “Offer of employment” form provided by the employer, as per section R209.11. The method of contact (such as email, regular mail or fax) should be determined by individual offices according to their internal procedures.

If the offer of employment is found to be non-genuine under any one of the 4 genuineness factors, the officer is to refuse the work permit, as it does not meet the requirements of section R200.

Note: A procedural fairness letter must be sent to the applicant indicating any extrinsic information used in making a decision on genuineness. Extrinsic information is information that is public ly available or not provided by the employer. The employer or employee must have an opportunity to respond to this information before a finding of non-genuineness is made.

The employer is “actively engaged” in the business

It is important to ensure that the offer of employment comes from an organization that not only legally exists but also can demonstrate the ability to provide stable employment for the requested period. The organization must do all of the following:

  • have an operating business
  • provide either a good or a service
  • have a physical work location in Canada where the temporary worker will work

Assessing activeengagement

The officer can assess active engagement by looking at the following points in the “ Organizations & Entities – Employer Details” tab in GCMS:

  • business start date
  • type of business
  • number of employees
  • gross income
  • principal activity

The officer should conduct a more in-depth assessment of the employer’s engagement if any of the following applies:

  • the business information in the offer of employment raises concerns with respect to the organization’s active engagement in a business (such as being less than 1 year old)
  • there is negative publicly available information regarding the organization (that is, an internet search has revealed negative information)
  • information is entered in the “Notes” tab in GCMS about the organization or verifications on previous temporary workers have been conducted and a negative determination was made

The in-depth assessment may include any or all of the following:

  • contacting the employer directly to request further information
  • obtaining information from other government departments
  • obtaining any further information required to satisfy themselves that the employer is actively engaged

Relevant documentation may be requested, such as any or all of the following:

  • a confirmation of the Canada Revenue Agency business number
  • a copy of any business licenses or permits required
  • the organization’s relevant income documents
  • copies of contracts or any other document that provides proof the organization is actively doing business and is not a shelf company

Additional information available to the public may also be used to determine active engagement, including information obtained from any or all of the following sources:

  • Internet searches through sites such as Google, Better Business Bureau, Industry Canada and Canada 411
  • provincial websites
  • employer websites
  • Job Bank advertisements

The refusal of an employer to supply information to satisfy this assessment should result in a work permit refusal, as the officer may not be satisfied that the organization is active based on the information submitted or available.

Example of an employer actively engaged in the business

The owner of a high-end Japanese restaurant in Toronto would like to hire a Japanese sous-chef. His business has been open for 6 years and employs 36 people, including 8 foreign nationals.

An officer may be satisfied that the organization legally exists and has the ability to provide stable employment for the requested period because it does all of the following:

  • has been open for several years
  • already employs several people
  • provides food and drink in a physical space (that is, the restaurant)

Example of employer that may not be actively engaged in the business

The owner of a small Japanese “bento-box” delivery restaurant in Toronto would like to hire a Japanese cook. His business has been open for 5 months and employs 2 other people. He cannot provide the officer with T4s (his business is too new), nor can he provide a lease because he operates his business from home. He pays his employees with cash or in food, which they don’t mind because they are family members. He shows the officer order slips for produce bought last month.

Even if an officer is satisfied that this business may be operational, provides a good and has a work location, it has not “demonstrated the ability to provide stable employment for the requested period” because it is too new and does not pay its employees in a consistent and reliable way.

The offer of employment is consistent with the reasonable employment needs of the employer

The officer must be satisfied that the offer of employment is reasonable in relation to the type of business the organization is engaged in. The occupation should be one that is reasonably expected in that organization’s sector, and the employer must be able to meet the commitments they have offered (of wages, hours, etc.).

Assessing reasonable employment need

The officer can contact the employer who submitted the offer of employment and request more information about the need to hire a foreign national for the job.

The employer must be able to satisfactorily explain the role of the temporary worker in their operations and how it covers a reasonable employment need, in terms of both occupation and operation.

If an employer refuses to provide information to satisfy this assessment, the work permit should not be issued.

Negative examples of employment need

  • An insurance company is hiring a full-time actor.
  • A company has only 10 employees, and this is the sixth supervisor position they have offered in the last year.
  • A hair salon is hiring a management consultant.

The employer can reasonably fulfill the terms of the offer of employment

The employer must demonstrate that the terms of employment are ones that they can reasonably fulfill. They must demonstrate that they are capable of providing, for the duration of the work permit, the hours of work, wages and benefits stated in the offer of employment. They must also be able to provide the working conditions that are indicated in the offer and that meet provincial or territorial standards.

Assessing the ability to fulfill the terms of the offer

Officers can check the “Organization & Entities – Associations” tab in GCMS to review the work permit applications matched to the offers of employment submitted and if they were approved or refused. The “Organization & Entities – Offers of Employment” tab provides information on all past offers submitted by the employer. The “Organization & Entities – Notes” tab will include any information added by other officers, and the “Organization & Entities – Verifications” tab should include work permits where inspections were conducted and the outcomes.

If the officer has concerns that the employer will not be able to pay the wage, provide benefits as listed or meet the other terms as listed on the offer, the officer can contact the employer using the email address in the “Employer Primary Contact” field on the offer of employment and request additional documentation or information, including but not limited to the following:

  • a T4 Summary of Remuneration Paid, which provides a summary of employment income paid out by the employer in a given year (the absolute amount of income paid [see line 14 of the T4 – Employment Income] will reveal the general size of the employer, which should give the officer an indication of whether that employer can easily absorb temporary foreign workers)
  • a T2 schedule 100/125 (if the employer is a corporation), which provides insight into the solvency of a business by providing information on operating income and the overall financial position and /retained earnings of the business
  • a T2125 or equivalent financial statement (if it is a sole proprietorship or partnership), which provides information on the operating income (business income) of the employer (but not retained earnings, or profits)
  • a workers’ compensation clearance letter, which declares that the employer is registered with the appropriate workers’ compensation board and has an account in good standing

Foreign employers may be requested to provide both or either of the following:

  • business contracts (the contracts provide evidence that the organization would have sufficient future income to enable them to meet the terms of the offer provided to the temporary worker)
  • business documents (similar to those requested for business visitors, entrepreneurs or other business category applicants in the host country)

If the officer doubts the employer’s ability to fulfill the terms of the offer of employment, they may request further information or documents directly from the employer, or they may refuse the work permit as not meeting the requirement of clause R200(1)(c)(ii.1)(A).

If the employer is, or has been, the subject of a complaint, or if they have been found non-compliant in a past inspection, the officer must contact the Case Management Branch (CMB), Investigations and Exceptional Cases Division for the initiation of an inspection based on “reason to suspect” that the employer may not be complying with conditions or on “known past non-compliance”. The work permit application will be placed on hold until the inspection is finalized to ensure that the offer meets all the genuineness factors.

The failure of an employer to satisfy this assessment will result in a refusal to issue the work permit.

Positive example

A well-established restaurant chain is hiring a specialty cook. The chain has been in existence for over 10 years and is known for its exemplary food and service.

The restaurant chain is able to demonstrate that it is “capable of providing, for the duration of the work permit, work in line with the occupation, wages offered and acceptable employment standards” because they are well established and have several years of income to prove they can afford the new cook.

Negative example

A new home-based business is hiring a person to prepare food for a new gourmet meal delivery service. The owner of the new business declared a profit of only $10,000 the previous year, but they are going to be paying the temporary worker $45,000 a year.

The new business is not able to show that they have sufficient funds to pay the wages offered, nor do they have business contracts to show that they would be able to meet the terms of the offer based on monies to be received through the contracts.

Compliance with laws regulating employment and recruitment

The officer must be satisfied that the employer, or anyone who recruited the temporary worker on their behalf, will be and have been compliant with federal and provincial or territorial laws regulating employment and recruitment in any province or territory where the temporary worker is intended to work.

For the purpose of this assessment, any previous or current violation of Canadian federal and provincial laws regulating employment and recruitment could be considered. It does not matter whether the violations of the employment legislation involved Canadians, permanent residents or temporary workers, as these laws are related to all of the following:

  • the regulation of employers
  • employer consultants and recruiters
  • safety in the work place
  • wages
  • applicable benefits

While many provinces and territories maintain websites listing employers who have violated their legislation, the employers listed may still be able to offer a workplace suitable for all workers, including temporary workers. Officers should consider information they might have regarding employer non-compliance with federal or provincial laws, but additional inquiries are required to support a refusal on the basis of paragraph R200(5)(d).

Provincial temporary foreign worker- and recruiter-related legislation

Unlicensed recruiters: If a recruiter who is working for an employer is not licensed in a province where it is required by law that recruiters and employment agencies of foreign nationals be licensed by the province (such as Manitoba’s Worker Recruitment and Protection Act and Alberta’s Fair Trade Act), a work permit can be refused.

Recruitment fees: If, during the processing of a work permit application, it becomes known that the temporary worker paid recruitment fees, contrary to provincial legislation (such as in Alberta and Manitoba), this does not necessarily result in a work permit refusal under paragraph R200(5)(d), since the employer or recruiter may not yet have been found guilty by the province.

If officers do not have sufficient information to determine non-compliance with employment laws, information may be sent to the CMB Investigations and Exceptional Cases Division for further action.

The refusal of an employer to supply information to satisfy this assessment may also result in a refusal to issue the work permit.

Positive example

A British Columbia mining company is hiring a temporary worker. There are several news articles referencing the fact that they have won prestigious safety awards in their industry and that they are a top 50 company to work for.

Unless the officer has any indication to the contrary, they could be satisfied that this company has a common practice of compliance with “federal and/or provincial laws regulating employment and recruitment in the province(s) it is intended that the temporary worker will work” based on having won awards for safety and being one of the top 50 companies in Canada.

Negative example

An Alberta mining company has just received a provincial court judgement that they are guilty of involuntary manslaughter because of a lack of safety equipment on their work sites that caused the death of 2 workers.

The Alberta mining company has been found guilty in a provincial court of not complying with provincial and federal laws. Therefore, they do not meet this requirement, and the work permit would be refused.

Port of entry considerations

Concerns may be identified after a work permit has been approved at the visa office and a letter of introduction has been issued.

Where a foreign national’s work permit has been approved at a visa office, the genuineness assessment should have been conducted by the visa officer.

However, there may be situations where information is received after the approval of but before the issuance of the work permit, according to which the organization submitting the offer of employment may no longer meet the genuineness factors.

In these cases, the border services officer may request further information from the employer to determine if all the requirements of section R200 are still met before issuing the work permit.

Should the border services officer not be satisfied that the requirements are still met at the time of entry to Canada, they may refuse to issue the work permit.

Assessment of a work permit application submitted at the port of entry

LMIA exemption

When an LMIA-exempt foreign national applies for an employer-specific work permit on entry [R198], the assessment of the 4 genuineness factors [R200(5)] must be conducted by the border services officer. This applies even in cases where the International Mobility Workers Unit has provided an opinion.

Positive LMIA

Where a foreign national is in possession of a positive LMIA and is applying for their work permit at the port of entry, the assessment of genuineness has been completed by Employment and Social Development Canada. In these cases, border services officers must remain satisfied that the offer continues to meet the 4 genuineness factors.

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