Open work permits for vulnerable workers

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.

Migrant workers in Canada on employer-specific work permits who are experiencing abuse, or who are at risk of abuse, in the context of their employment in Canada may be eligible to receive an open work permit that is exempt from the Labour Market Impact Assessment (LMIA) process, per section 207.1 of the Immigration and Refugee Protection Regulations (IRPR).

Objectives of this provision

Who may benefit from this measure?

Definition of abuse

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

Abuse consists of any of the following:

  1. physical abuse, including assault and forcible confinement
  2. sexual abuse, including sexual contact without consent
  3. psychological abuse, including threats and intimidation
  4. financial abuse, including fraud and extortion

Examples of abuse

Type of abuse Description Examples
Physical abuse Physical abuse generally involves physical contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm.
  • hitting, beating, slapping, punching, choking, burning, pushing or shoving a worker in a way that results or could result in injury
  • confining a worker (habitual residence or other)
  • forcing a worker to engage in drug or alcohol use or illegal behaviour against their will and possibly creating dependencies
Sexual abuse Sexual abuse generally encompasses any situation in which force or a threat is used to obtain participation in unwanted sexual activity as well as coercing a person to engage in sex against their will.
  • forcing or manipulating a worker into having sex or performing sexual acts
  • forcing a worker to perform unsafe or degrading sexual acts
  • using physical force to compel a worker to engage in a sexual act against their will
  • using physical force, weapons or objects in non-consensual sexual acts
  • involving other people in non-consensual sexual acts
  • exposing, suggesting, attempting or completing a sexual act involving a worker who is unable to understand the nature or condition of the act, unable to decline participation or unable to communicate unwillingness to engage in the sexual act (for example, because of illness, disability, the influence of alcohol or other drugs, intimidation, or pressure)
Psychological abuse Generally, psychological abuse is a pattern of coercive or controlling behaviour, iterated threats or both.
  • insulting, intimidating, humiliating, harassing, threatening (including with respect to immigration status or deportation), name-calling, yelling at, blaming, shaming, ridiculing, disrespecting or criticizing a worker
  • controlling what a worker can and cannot do
  • threatening a worker with murder
  • intimidating, threatening or harming a worker with a knife, gun, or other object or weapon
  • using religious or spiritual beliefs to manipulate, dominate or control a worker
Financial abuse Financial abuse is described as a form of abuse where one person has control over the victim’s access to economic resources.
  • stealing or taking a worker’s money, salary, or cheques or coercing them into giving these things up
  • rigidly controlling finances and limiting the amount of resources a worker can access
  • withholding money or credit cards
  • exploiting a worker’s economic resources
  • requiring a worker to deposit money into their bank account for fraudulent purposes
  • closely monitoring how a worker spends money
  • destroying a worker’s property
  • spending a worker’s money without their consent

The above examples are not exhaustive. Other types of physical, sexual, psychological and financial abuse may also be taken into consideration.

Applying for an open work permit in situations of abuse

How do migrant workers apply for this program?

They must do both of the following:

In addition, migrant workers may use the following ways of communicating with IRCC to seek information on obtaining an open work permit for vulnerable workers:

Enforcement agencies

Examples of enforcement agencies include

Potential human trafficking

For cases where a migrant worker self-identifies or is referred by a partner as a potential victim of human trafficking, officers should follow the program delivery instructions (PDIs) on Temporary resident permits (TRPs): Considerations specific to victims of human trafficking.

Eligibility requirements

Work authorization

For a migrant worker to be eligible, at the time they apply, they must be in Canada and must either hold a valid LMIA or LMIA-exempt, employer-specific work permit or be authorized to work without a work permit under implied status as a result of applying for a renewal of their employer-specific work permit [R186(u)].

In addition, per subsection R200(3.1), paragraph R200(3)(e) does not apply to migrant workers referred to in subsection R207.1(1), who have engaged in unauthorized work or failed to comply with a condition. In other words, officers who have reasonable grounds to believe the migrant worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada should not refuse to issue the open work permit on the basis that the migrant worker has engaged in unauthorized work or has not complied with a condition.

Context of employment

Officers must have reasonable grounds to believe that the migrant worker is experiencing or is at risk of experiencing abuse in the context of their employment in Canada. Generally, the employment context does not include abuse taking place in someone’s private dwellings (with the exception of workers who live in housing or accommodation provided by the employer). On the other hand, the employment context is not limited to abuse directly at the hands of the employer of record.

Experiencing abuse or being at risk of experiencing abuse

Both migrant workers who are experiencing abuse and workers who are at risk of experiencing abuse in the context of their employment are eligible for an open work permit. The onus is on the applicant to provide evidence of the abuse they are experiencing or the broader circumstances in which they find themselves and to demonstrate how these broader circumstances are making them believe or fear they could be at risk of experiencing abuse.

Examples of abuse or risk of abuse in the context of employment

Abuse and risk of abuse may include but are not limited to the following:

Evidence of abuse

Evidence of abuse and risk of abuse may include but are not limited to the following:

Standard of proof – Reasonable grounds to believe

For the purpose of issuing an open work permit, officers must have reasonable grounds to believe that the migrant worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada in order to issue the vulnerable worker an open work permit.

The “reasonable grounds to believe” standard requires something more than mere suspicion but less than the standard applicable in civil matters of proof on the balance of probabilities. In essence, reasonable grounds exist where there is an objective basis for the belief that is based on compelling and credible information.

Compelling and credible information may include a document from a proper authority indicating that an event occurred; however, an anonymous letter alleging certain facts may not meet this threshold. Officers have to assess on the totality of the evidence in each case.

How to decide – Two-step decision-making process

Although the test for determining if a migrant worker is experiencing abuse or is at risk of abuse is reasonable grounds to believe, the assessment of evidence for the purpose of making factual findings is assessed on a balance of probabilities. This means that the finding of facts for each situational statement or explanation supported by the evidence is subject to an evaluation at a higher test (balance of probabilities), but the final determination to lead to a finding of abuse or risk of abuse is subject to a lower test (reasonable grounds).

In other words, officers

  1. have to determine if the facts and evidence presented by the migrant worker occurred and are credible on a balance of probabilities
  2. assess the totality of the circumstances and evidence, and they determine if they have reasonable grounds to believe that the migrant worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada

When assessing applications, officers should maintain an objective and open mind, including when hearing the migrant worker’s story (if an interview is conducted) and, subsequently, when evaluating the evidence provided by the migrant worker.

If an interview is conducted, the migrant worker should be questioned about any contradictions or gaps in their submissions. Moreover, any explanation provided by the migrant worker should be addressed by the officer, and the officer must consider if the explanation is reasonable. Also, any unresolved inconsistencies or concerns regarding an explanation are to be raised by the officer with the migrant worker.

Weighing evidence of abuse

Migrant workers should provide as much evidence as possible to satisfy the officer, on reasonable grounds, that they are experiencing abuse or are at risk of abuse in the context of their employment in Canada.

The evidence provided may relate to 1 incident or a number of incidents and may be used to build a case history concerning whether or not abuse occurred. Officers must base their decisions on the totality of the evidence provided, keeping in mind that some evidence may be difficult for a victim of abuse to acquire. Cases should not be refused on the sole basis that migrant workers are not able to provide detailed evidence. However, the lack of evidence can contribute to reasons for a refusal after the overall assessment of an application.

Officers assess the credibility of the information provided on a balance of probabilities to determine if there are reasonable grounds to believe that abuse took place or that the migrant worker is at risk of abuse. This determination does not depend on the severity of the abuse (see the definition of abuse above) experienced by the worker.

Important: Officers should not contact the employer of record to verify any information.

Level of persuasion required by standards of proof for an element to be established

Standards of proof (higher to lower) Description Officer’s assessment
Beyond reasonable doubt No doubt; convinced Not applicable
Balance of probabilities Likelihood of something being true Step 1: Officers must be satisfied on a balance of probabilities (50 + 1%) that the facts and evidence provided by the migrant worker occurred and are credible.
Reasonable grounds to believe More than a mere possibility; would satisfy an ordinarily cautious and prudent person Step 2: Officers must determine if they have reasonable grounds to believe that abuse occurred or that there is a risk of abuse.
Mere suspicion Simply an emotional reaction that it might be possible Not applicable

Reasons why migrant workers may not disclose abuse

In considering the facts of an application, officers are encouraged to consider that a person may endure abuse for a long time before seeking support or may never tell anyone. Therefore, it is possible that migrant workers may not disclose abuse when it starts occurring, and the timing of the application itself is not necessarily a negative feature and generally should not influence the duration of the new open work permit, if it is issued.

The reasons why workers may keep abuse secret relate to their circumstances, feelings, beliefs and level of knowledge about abuse. Examples of these reasons are

Interviews

Upon receipt of a case from a migrant worker, officers have 3 interview options. They may do any one of the following:

Arrangements for the interview can be made directly with the migrant worker or through an appointed authorized representative. Representatives should be clearly identified with a Use of a Representative form [IMM 5476], whether they are a settlement service provider or a migrant advocacy group. They should be unpaid, unless they are members of the Immigration Consultants of Canada Regulatory Council (ICCRC), lawyers or, in Quebec, notaries public.

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

Issuing open work permits for vulnerable workers

Migrant workers who have applied for an open work permit for vulnerable workers under section R207.1 are not required to obtain an LMIA or offer of employment.

In addition, per subsection R200(3.1), paragraph R200(3)(e) does not apply to migrant workers referred to in subsection R207.1(1), who have engaged in unauthorized work or failed to comply with a condition. Migrant workers are required to meet all other requirements of the Immigration and Refugee Protection Act (IRPA) and IRPR, including valid temporary resident status.

This open work permit is a transitional measure. On average, it may take approximately 12 months for migrant workers to find new employment and a new work permit and LMIA, if required. Previous work permit validity (or remaining time) should not negatively impact the duration of this open work permit. In addition, current processing times to obtain a new LMIA and work permit should be taken into consideration in determining the duration, given that renewals are only possible in very specific circumstances (see details on renewals below).

Officers are instructed to process work permit applications on an urgent basis (5 business days from the time the application is received). However, processing times may be affected by fluctuating volumes of applications received at IRCC.

Open work permits are issued under the authority of subsection R207.1(1) and are coded as follows:

Renewals

Migrant workers are eligible for a renewal only if their previous employer-specific work permit is still valid (that is, it has not been revoked and is not invalid under section R209), and they continue to meet other requirements of section R207.1, meaning they are in Canada, and officers have reasonable grounds to believe they are still experiencing abuse or are at risk of experiencing abuse in the context of their employment in Canada.

Family members

Family members who are currently in Canada are eligible to obtain an open work permit under subsection R207.1(2) if the principal applicant has been issued an open work permit under this program. Family members have their work permits issued under the same program and for the same duration as the principal applicant. They benefit from the same fee exemptions as the principal applicant.

If a family member is working for the same employer and is also found to be experiencing abuse or to be at risk of abuse, the officer must add a note in GCMS, under the family member’s unique client identifier (UCI), with that information for inspection purposes.

A new visitor record or study permit may be issued for the same duration as the principal applicant’s if the immigration status of dependent children who are currently in Canada, accompanying the principal migrant worker, is expiring before the end of the validity of the open work permit. As family members, dependent children who are of working age are also eligible to obtain an open work permit under the same program and for the same duration as the principal applicant.

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