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Be careful not to misuse your visitor's visa

Wednesday, February 26, 2014    

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Dear Mr Brown:

I travelled to Toronto on my visitor's visa and I have been here for four months. I have never worked in Canada illegally, as I do not earn a salary. However, I volunteer at my host's business in exchange for room and board. I do not receive any wages. Can I obtain an open work permit? I hear that obtaining an LMO [Labour Market Opinion] is difficult.

— RR

Dear RR:

In general, a visitor in Canada may not work or study in Canada unless authorised to do so. However, there are exceptions. A visitor must comply with any conditions imposed under Canadian immigration law, and must leave Canada by the end of the period authorised for his or her stay. A visitor may only re-enter Canada if authorisation is provided for re-entry.

I understand your description of how you are able to stay at your host's residence. However, you must be mindful of the definition and interpretation of the concept of work under Canadian Immigration law.

Definition of work

Work means an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.

There must be some exchange of value for an understood purpose. One may interpret your services in exchange for room and board as a form of employment, ie, your conduct is purposefully engaging in employment indirectly since you are precluded from working directly in an attempt to undermine the immigration rules.

A visitor who seeks to work in Canada must, unless exempted, obtain authorisation to work. In this case, a work permit, which is an issued document that authorises the person to whom it is issued to engage or continue in employment in Canada. The exemptions to the requirement of obtaining an authorisation are numerous.

Labour Market Opinion

An LMO states whether the issuance of a work permit to a foreign worker will have a neutral or positive effect on Canada's economy. It considers wages, working conditions, the availability of Canadians or permanent residents to do the work, the transfer of skills and knowledge, and the creation of jobs. It is the responsibility of the prospective employer to obtain the LMO. There are exemptions and special employment programmes that do not required a LMO.

The factors to assess employment offers include:

* Verification of a genuine employment offer.

* Recruitment efforts to hire a Canadian citizen or permanent resident.

* Job creation or job retention of Canadian citizens or permanent residents.

* Transfer of skills and knowledge for the benefit of Canadian or permanent residents.

* Filling labour shortages in the Canadian market due to a skills shortage.

* Sufficient wages and working conditions to attract Canadian citizens or permanent residents.

* The employer must show recruitment efforts and results, explanation of how the company would benefit from a foreign worker's employment, such as profitability, employee skills and positive spillover affecting Canadians.

Work permit

The general rule is that every person seeking to go to Canada to engage in employment must make an application to a visa officer to obtain authorisation to go to Canada for the purpose before the person appears at a port of entry.

Please understand that the purpose of requiring such authorisation for employment is to protect the labour market for Canadian citizens and permanent residents. Foreign workers must meet the human resource needs of Canada, while ensuring that Canadian citizens and permanent residents have been considered for the employment first.

Open work permit

There are ways of obtaining an open work permit. For example, foreign students in Canada may obtain an off-campus open work permit and a post-graduate work permit. You may wish to study in Canada if you desire permanent residence. Most foreign workers who desire to work in Canada will not be successful as LMOs are not easy to obtain and largely depends on the type of work. However, the province of Ontario, for example, has a target of a 50 per cent increase in the number of international students!

For further information, please visit jamaica2canada.com.

Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel, education agent and managing director of JAMAICA2CANADA.COM — a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com

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