It has been almost 2 months since the federal government began introducing travel restrictions and exemptions which affect the eligibility of foreign workers to come to Canada. Below is a short Q&A designed to explain how employers and employees can work within the rules.

Q. Can foreign workers come to Canada?

A. Yes, all foreign workers who hold a valid work permit or have been issued with an approval letter from an overseas visa office are eligible to come to travel to Canada, provided they are coming for an essential and non-discretionary purpose. The term “essential and non-discretionary purpose” has not been defined by either Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) beyond a reference to “Guidance” provided by Public Safety Canada https://www.publicsafety.gc.ca/cnt/ntnl-scrt/crtcl-nfrstrctr/esf-sfe-en.aspx

In our experience all foreign workers that have a valid work permit or a valid work permit approval letter have been allowed to travel and to enter Canada by presenting a Port of Entry (POE) package that demonstrates the following:

• The employers business is not under a mandatory closure order, or if its physical location is, the foreign worker will be able to perform the job remotely (i.e. work from home)
• The employer confirms in writing that the job is still available (i.e. the foreign worker has not been laid off), and the foreign worker will be able to fulfil the job in accordance with the terms and conditions under which the work permit was approved (i.e. wages, hours, benefits, duties)
• The foreign worker must pass a health check and have a suitable face mask/covering in order to be allowed to board an aircraft
• Upon admission to Canada the foreign worker will be required to complete a mandatory self-isolation for 14 days and must have a comprehensive written self-isolation plan which details the address of the final destination, arrangements for travel from the airport to the final destination, arrangements for obtaining groceries and a declaration that they will not be in contact with vulnerable people. Failure to provide an appropriate self-isolation plan may mean that they are taken to a facility (e.g. a hotel or hostel) that the federal government has designated as suitable for the purposes of mandatory self-isolation
  • The penalties for not following the self-isolation plan can include;
    • a fine of up to $750,000
    • 6 months of jail time
    • being found inadmissible, removed from Canada and banned from entering for 1 year

Note: Immediate family members[1] of eligible foreign workers are able to travel to Canada to “re-unite” with a family member living temporarily in Canada.” In effect this means the following:

A foreign worker already in Canada with valid status can have his/her immediate family members join him/her in Canada subject to the process outlined below:

1. Obtain written authorization from the Government of Canada by demonstrating to a consular or immigration officer that you’re coming for an essential purpose, such as to live with your spouse, partner or parent[2]
2. Have a valid Temporary Resident Visa (TRV) or Electronic Travel Authorization (eTA)
3. Have a valid passport
4. Satisfy the airline that you’re exempt from the travel restrictions (by showing the written authorization from the Government of Canada
5. Pass a health check by airline officials to confirm that you don’t have symptoms of COVID‑19, including a fever, a cough and difficulty breathing
6. Have a suitable face mask/covering
7. Present a comprehensive written self-isolation plan which details the address of the final destination, arrangements for travel from the airport to the final destination, arrangements for obtaining groceries and a declaration that they will not be in contact with vulnerable people

A recent example may serve to illustrate both the foreign worker and immediate family member re-unification situation.

A foreign worker who was already in Canada with a valid work permit and who is working in a critical industry has sole custody of a son who normally attends boarding school in the country of citizenship and spends scheduled school vacation times with the foreign worker.

The boarding school closed due to the COVID19 pandemic and the son needed to come to Canada to stay with his sole custody parent as he had no other relative/guardian he could stay with.

We obtained written authorization from the Government of Canada by demonstrating the immediate family relationship (birth certificate) and the essential purpose of travel (sole custody documents and boarding school letter).

We then assembled a Port of Entry (POE) Package which included all the relevant documents to demonstrate to the airline and CBSA how both were exempt from the travel restrictions which included a comprehensive written self-isolation plan for both for both father and son. From start to finish the whole process took 1 week and father and son are now safely “reunited” in Canada.

Q. What does the foreseeable future look like?

To date Canada appears to have been fairly successful in managing the Covid19 pandemic and the travel restrictions/exemptions will likely have played their part in that. At present no plans for relaxation have been discussed or presented, however it is likely that some changes will begin to occur shortly, in line with the opening up of provincial economies.

There was recent clarification from CBSA that US citizens can apply for work permits at the Port of Entry (POE) however it should be borne in mind that work permit approval decisions are highly discretionary and that the current concerns of Covid19 may play a part in any CBSA officers decision. As such we recommend that clients considering this should contact us first in order that we can ensure the employee is appropriately prepared.

At the moment the biggest issues for many foreign workers and Canadian employers is the ban on work permit applications at the Port of Entry (POE) for visa exempt foreign workers. The processing times in visa offices will be a major constraining factor for many employees and as such we are working closely with our clients to overcome these delays wherever possible.

In our experience it is often not possible to anticipate when or to what extent changes may occur and therefore we are focusing our resources on identifying, understanding and applying the impact of any changes to our clients specific circumstances and advising accordingly.

If you have any questions or comments about any of the above or any immigration matter please contact Jsoden@cwilson.com