IRCC Updates Guidelines for Assessing the Genuineness of Job Offers in Work Permit Applications

For an employer-specific work permit application, having a job offer from a Canadian employer is not enough on its own. The offer must also be determined to be genuine.

IRCC generally assesses the following four factors:

• Whether the employer is actively engaged in the business in respect of which the offer is made;
• Whether the offer is consistent with the reasonable employment needs of the employer;
• Whether the employer is reasonably able to fulfill the terms of the offer, including wages, hours of work and other employment conditions; and
• Whether the employer, or a recruiter acting on the employer’s behalf, has complied with federal and provincial or territorial laws regulating employment and recruitment.

If an officer is not satisfied that these requirements are met, the work permit application may be refused.

The updated instructions provide examples of situations in which an officer may question whether a position is consistent with the employer’s reasonable employment needs. Examples include a catering company seeking to hire a roofer, a company with only 10 employees seeking to hire a sixth supervisor within a short period of time, or a franchise restaurant seeking to hire a full-time business analyst. These examples illustrate that officers may look beyond the job title itself and consider whether the position makes sense in light of the employer’s business activities, size and operational needs. Where the relationship between the business and the position is not immediately clear, or where the number or level of managerial positions appears unusual for the size of the company, the employer should be prepared to explain why the position is reasonably required.

IRCC may also assess whether an employer is financially capable of providing the wages, hours of work and other conditions stated in the offer of employment throughout the proposed period of employment. Depending on the circumstances, officers may request documents such as T4 Summaries, corporate tax information, financial records, workers’ compensation documentation or business contracts.

One example provided by IRCC involves a newly established company that reported only $10,000 in profit in the previous year but offered a foreign worker an annual salary of $45,000. If the employer cannot demonstrate sufficient financial resources to support the position, an officer may not be satisfied that the employer is reasonably able to fulfill the terms of the offer. This may be particularly relevant to newly established or smaller businesses hiring foreign workers.

The updated instructions also clarify the different roles of Employment and Social Development Canada (ESDC) and IRCC under the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). Under the TFWP, ESDC assesses the genuineness of the job offer as part of the Labour Market Impact Assessment (LMIA) process.

However, even when a positive LMIA has been issued, an IRCC officer processing the work permit application may conduct further verification if concerns arise regarding the genuineness of the employment offer.

Under the IMP, where an LMIA is not required, IRCC assesses the offer of employment submitted by the employer through the Employer Portal. This means that the genuineness assessment is also important for LMIA-exempt employer-specific work permits, including certain work permits under a free trade agreement.

The updated instructions also provide more detail on the procedures officers should follow when they have concerns about the genuineness of an offer. A Procedural Fairness Letter (PFL) may identify the specific concerns and provide an opportunity for additional evidence to be submitted. In some cases, the employer may be asked to submit supporting documentation directly to IRCC regarding its business operations, financial situation or other relevant matters.

Officers may also consult publicly available information, including company websites, provincial or territorial government sources and internet search results, when verifying an employer’s business activities. Where information that is not normally known to the applicant—referred to as “extrinsic information”—may be relied upon to make an adverse decision, procedural fairness generally requires that the applicant be given an opportunity to respond.

Even when a work permit application has been provisionally approved and a Letter of Introduction has been issued, new information regarding the genuineness of the job offer may result in further verification when the foreign worker seeks entry to Canada. A Canada Border Services Agency (CBSA) officer may contact the employer to verify the employment offer. If the officer is not satisfied that the applicable requirements continue to be met, the work permit may not be issued at the port of entry.

This update does not create a new genuineness test for employer-specific work permits. However, it provides significantly more detail about how IRCC may assess an employment offer and what may happen when concerns arise.

Employers should therefore be prepared to demonstrate not only that a job offer exists, but also why the position is reasonably required, how it relates to the company’s actual business activities, and whether the company has the operational and financial capacity to maintain the offered employment conditions.

This can be particularly important for newly established or smaller businesses, positions that do not have an obvious connection to the employer’s primary business activities, businesses with a relatively high number of managerial positions, or offers involving comparatively high salaries.

A positive LMIA also does not automatically result in the approval of a work permit. Similarly, for LMIA-exempt applications under the International Mobility Program—including certain work permits under a free trade agreement—submitting an offer of employment through the Employer Portal does not, by itself, establish that all work permit requirements have been met.

Visa JP Canada assists both employers and foreign workers with LMIA-based work permits as well as LMIA-exempt work permit applications, including work permits under free trade agreements.

This article is a summary prepared by Shiraishi Visa JP Canada based on official information from the Government of Canada, organized for clarity and ease of understanding.
Source: Assessing the genuineness of the offer of employment on a work permit application