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Permit Me to Explain – Work Permits and LMIAs for Foreign Actors

Media-(ThinkStock)

As much as we Canadians (justifiably) boast about our homegrown talent, there is no hiding the fact that to maximize the quality of our music, TV, and film we sometimes need an assist from outside our borders.  For instance, you are a producer of a multimillion dollar film shooting in Canada and want to hire a specific non-Canadian actor to play the sister of the film’s protagonist: can you simply hire the performer?  Like many legal questions, the answer is (unfortunately) “it depends.”

When attempting to determine whether an employer may hire a foreign performer, the first question to be asked is what type of performer are they?  Some categories of performers need to obtain a work permit prior to performing in Canada[1]; other categories of performers, set out in Section 186 of the Regulations to the Immigration and Refugee Protection Act (the “Regulations”), are exempt from the requirement. On June 20, 2014, amendments were made to the Regulations, which revised the list of performers in the “exempt” category.  The list of exempt non-Canadian performers includes:

  •  musicians in a band performing several tour dates in Canada;
  • guest conductors and artists performing with Canadian productions or groups for a few performances;
  • actors in foreign touring theatrical productions;
  • professional wrestlers and circus performers in foreign touring productions;
  • musicians and buskers coming to Canada to perform in festivals;
  • support crew and other workers who are integral to a live production; and
  • disc jockeys coming to Canada to work at private events, festivals, concerts and fairs.[2]

Setting aside the (puzzling) grouping of professional wrestlers with circus performers, producers and their counsel will note the continued omission of film and television actors from this list; something emphasized by section 186(g) of the Regulations which includes the wording:

A foreign national may work in Canada without a work permit as a performing artist appearing alone or in a group in an artistic performance – other than a performance that is primarily for a film production or a television or radio broadcast.[3] [Emphasis Added]

So, at this point we know that any non-Canadian actor participating in any film or TV production will be classification as a temporary foreign worker (“TFWs”) and must obtain a work permit.  The work permit allows TFWs to work in Canada to perform a specific service for a designated employer for a defined period of time.  To obtain a work permit, performers may apply at a Citizen and Immigration Canada visa office[4] or at a Canadian port of entry (in the case of citizens of contiguous states).  So, is a work permit all that is required for producers to hire a non-Canadian actor?  Yet again, the answer is “it depends.”  The producer may, in addition to obtaining a work permit for the actor, be obliged to complete a Labour Market Impact Assessment (“LMIA”).  Whether an LMIA is required is dictated by (a) whether the performance is for (i) film; or (ii) TV; and (b) whether or not the production is a Canadian co-production.

If the performer is being brought into Canada to perform in a certified Canadian co-produced film (i.e. commonly referred to as a “treaty co-production”)[5] [6], then the producer of the film is not required to complete an LMIA.  For non-Canadian performers appearing on a (a) film; or (b) TV series, that is not a Canadian co-production, then an LMIA will be required in order to determine whether a work permit will be granted (and the length of the work permit).  The LMIA is performed by Employment and Social Development Canada (“ESDC”)[7] and is meant to evaluate whether the employment of the non-Canadian performer is likely to have a positive or negative effect on the Canadian labour market.  To commence the LMIA process, the producer submits a completed LMIA[8] [9] to Service Canada.  Employers may also create an account with the TFW Web Service[10] which allows them to submit their LMIA application online and monitor its ongoing status.

When it comes to television series, the situation is less clear. There is some ambiguity in the wording on the ESDC website: the wording specifically mentions an LMIA exemption for “actors and workers on a film co-production between Canada and a foreign country”[11]; but elsewhere on the same page, reference is made to “film” and “television”, hinting that the absence of “television” in the description of the LMIA exemption indicates a deliberate intention to not include television co-productions as being eligible for the LMIA exemption.  However, producers we have spoken to have relayed that, as a practical matter, they have qualified for this LMIA exemption for Canadian co-produced television productions.  Producers seeking to utilize this exemption may wish to submit a LMIA exemption request to Service Canada who will provide the producer with an opinion as to whether they qualify.[12]

At some point along the way, the budget-conscious producer (i.e. any producer) reading this article must be wondering about costs.  The June 20, 2014 amendments previously mentioned increased the LMIA application fee from $275 to $1,000.  Despite this over 350% increase, likely of greater significance is that the June 20th amendments increased the processing time for LMIA applications.[13]  The ESDC website currently states that LMIA applications will be processed within 10 business days.  This could potentially be problematic for producers who find themselves in a situation whereby the casting of a performer takes place less than two weeks prior to that performer’s first day of principal photography.  Concern may be further magnified if the performer is needed for pre-production activities.

Apprehensive that this processing time may harm productions in Canada, in mid-July members of the film and TV community met with federal immigration Minister Chris Alexander.  It was reported that during this meeting Minister Alexander gave assurances that film and TV productions facing time constraints would receive quick and efficient services in regard to their LMIA applications.  Speaking with colleagues, and barring some initial hiccups, Mr. Alexander has seemingly been good to his word.  Despite a 10 business day processing period, those administering the LMIA application process appear cognizant of the time sensitive nature of film and TV productions.

Although there is reason to expect continued expedient LMIA application processing, producers who are required to complete an LMIA should remain mindful of the 10 business day timeline.  When completing one’s LMIA application[14] careful attention should be given to box 4 on page 3 entitled “Expected employment start date”.  Producers would be wise to give themselves flexibility.  Performers at one time not considered necessary for pre-production may later be needed prior to principal photography or perhaps shooting schedules may change such that Actor #8 is now an “SW”[15] on the Day 2 call sheet as opposed to Day 6.  As unforeseen events are inevitable during the production process, when completing box 4 producers should ensure that either (a) they are 100% certain the performer is not needed any earlier than the start day written on the LMIA; or (b) give themselves some flexibility in choosing a date in order to provide for unpredicted delays or changes in schedules.

 

Summary of Requirements for Different types of Performers

Type of Performer

Work Permit Required

LMIA Required

Actor in Film (Canadian co-production)

Yes

No

Actor in Film (Not Canadian co-production)

Yes

Yes

Actor in TV Series (Canadian co-production)

Yes

ESDC wording is unclear, but we hear they are treated like film actors

Actor in TV Series (Not Canadian co-production)

Yes

Yes

[Many thanks to articling student Ben Iscoe for his invaluable assistance in researching and writing this post.]

[1] Immigration and Refugee Protections Regulations <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.  See section 8(1) A foreign national may not enter Canada to work without first obtaining a work permit.  See also section 8(2) which states [s]ubsection (1) does not apply to a foreign national who is authorized under section 186 to work in Canada without a work permit.  Provisions of section 186 to be discussed.

[2] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[3] See Section 186(g) of the Regulation to the Immigration and Refugee Protection Act <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.

[4] Citizen and Immigration Canada Offices <http://www.cic.gc.ca/english/information/offices/index.asp>.

[5] A co-production appears to need Telefilm certification to qualify for the exemption.  For more information on Telefilm certification, visit “http://www.telefilm.ca/en/coproductions/coproductions/guidelines”.  Once certified, for assistance bringing performers into Canada to work on the co-production, visit “http://www.telefilm.ca/document/en/04/ProcedureImmigrationversionanglaise.pdf”.   This latter link provides helpful guidance; including offering a template letter that will may be used by Telefilm if Canadian authorities contact them to confirm information.

[6] Citizen and Immigration Canada does not define “film.”  A feature length live action production seems to be the template format, but for other formats (e.g. episodic television series, movie of the week, short film, animated film, etc.) a producer will likely have to submit a LIMA exemption request.  For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[7] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/home.shtml>.

[8] The LMIA form may be found on the Employment and Social Development Canada website <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5517(2014-11-019)e.pdf>.

[9] Please note that “[e]mployers in the Film and Entertainment sector are exempt from the recruitment and advertisement requirements.”  Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film/index.shtml>; see “Recruitment and Advertisement” tab.

[10] Employment and Social Development Canada <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5536(2014-01-003)e.pdf>.

[11] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[12] For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[13] Mas, Susana.  “Temporary Foreign Workers: Film, TV industry assured timely permits.”  CBC.ca. July 18, 2014 <http://www.cbc.ca/news/politics/temporary-foreign-workers-film-tv-industry-assured-timely-permits-1.2710488>.

[14] A link to the LMIA form may be found under footnote 8.

[15] An acronym standing for “Start Work” and indicates the performer’s first day of principal photography.

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Permit Me to Explain – Work Permits and LMIAs for Foreign Actors

Canadian Government Revamps the Temporary Foreign Worker Program

With the government’s focus on “Canadians First” for Canadian jobs, the requirements to hire temporary foreign workers were revamped to make the hiring of foreign workers, and in particular low skilled / low wage foreign workers, more difficult for employers.

For employers that utitlize labour market opinions (now known as labour market impact assessmentsLMIA), one of the biggest changes is the increased application fee that is now $1000 per position (up from $275) with the potential of an additional $100 “privilege fee” to be added. For those employers wishing to employ “high skilled / high wage” foreign workers, a Transition Plan will need to be submitted with LMIA applications. For those employers wishing to hire “low skilled/ low wage” foreign workers, the ability to hire foreign workers will be tied to the unemployment rate in the region they wish to hire the foreign workers and there will be caps placed on the number of such applications an employer can request. The duration of LMIAs issued for such workers in Canada will also decrease to one year increments.

For employers that utilize the LMIA exempt work permit categories (now known as International Mobility Program) including work permits under international agreements such as NAFTA or GATS, there will be additional application fees that will take effect in the summer of 2015. These include the Employer Compliance fee of $230 for employer specific work permits and $100 privilege fee for open work permits. There will also be a requirement for employers to submit these job offers directly to Citizienship and Immigration Canada (CIC), however, the logistics of this requirement are still not known for those foreign workers eligible to apply at the port of entry. The provincial agreements with the Canadian government which have allowed for specific positions in certain provinces to be LMIA exempt will also be phased out and/or reassessed early next year.

The government will ensure employer compliance to the foreign worker programs with frequent audits and investigations by Service Canada (ESDC), CIC and Canada Border Services Agency and the government will heavily sanction employers found to be abusing the system.

Although more specific details will be provided in the coming weeks on the practical implications of the programs, a detailed summary of the changes can be found on the Government of Canada’s website at: http://news.gc.ca/web/article-en.do?nid=859859&_ga=1.156784699.1455899918.1369168661

Stay tuned for more details to come…

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Canadian Government Revamps the Temporary Foreign Worker Program

Canada Immigration

On the eve to the New Year, regulatory amendments and ministerial instructions were announced regarding changes affecting the temporary foreign worker program. In particular, new conditions are being placed on employers who apply to Service Canada for Labour Market Opinions (LMOs) in support of work permits for their foreign workers. In addition to the revised application form published and effective December 31, 2013, employers will be subject to a condition that they keep all records in relation to each LMO application submitted, and all information in the context of each LMO application, for a period of 6 years (increased from 2 years).

Service Canada will have the authority to conduct inspections to verify the employer’s compliance with conditions set out in LMO approval letters and may order employers to provide documents, conduct on-site inspections without a warrant, and interview foreign workers or Canadian employers to ensure compliance with terms of employment. Employers will also be subject to employer compliance reviews in relation to a new LMO assessment for a period going back 6 years, as opposed to 2 years.

The new ministerial instructions will provide Service Canada with the power to suspend or revoke LMOs as well as the ability to refuse to process further LMO applications. Employers found to be non-compliant will be ineligible to hire foreign workers for 2 years and their ineligibility will be published on a public ban list. Such employers will also be issued refusal letters on any pending LMO applications and may have previous LMO approvals revoked.

Employer compliance with the terms of LMOs has become more important than ever, as well as the requirement for employers to keep organized and accurate documentation with respect to each foreign worker. If you have any questions regarding the changes to the LMO process or foreign worker applications in general, please contact us.

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Canada Immigration