HR professionals are often asked by foreign recruits: "If I join your company, will my spouse also be permitted to work?" In answer to the question, this article shall provide an overview of the immigration provisions relating to spousal employment in Canada and, at the end of the article, a comparison to the U.S. system.

When Canada's spousal employment program was first introduced, Canadian immigration authorities explicitly stated that their goal was to make Canada a more appealing destination for foreign workers believing that they would find a Canadian assignment more attractive if it did not mean putting a spouse's career on hold.

Thus, on Oct. 15, 1998, Canada began to issue work permits to the spouses of certain foreign workers. The program commenced as a pilot project, and, after several years and some modification, it is now a permanent part of Canada's immigration policy. The United States followed with its own much more limited spousal employment provisions on Jan. 16, 2002.

Employing a Foreign Worker

In general terms, Canada issues a work permit only when the employment of a foreign worker will have a neutral or positive economic effect on the Canadian labour market. In a process called "confirmation," a labour market opinion is obtained from the local office of Human Resources and Skills Development Canada (HRSDC). That opinion is based on consideration of several factors including demonstration by the employer that reasonable efforts were made to promote or recruit a Canadian citizen or permanent resident.

However, there are two broad categories in which the granting of work permits is exempt from this process: implementation of international agreements and promotion of Canadian interests. The spousal employment program falls into the Canadian interests exemption in that the granting of work permits to spouses enhances Canada's economic competitiveness.

Qualification

Not all spouses of foreign workers are eligible for work permits. To be eligible the principal foreign worker must qualify as a "skilled worker". Skilled work means (i) management occupations; (ii) occupations normally requiring a degree; and (iii) occupations normally requiring completion of community college or an apprenticeship. If the principal foreign worker is employed in an occupation in one of these categories, the spouse is eligible for a work permit.

A job offer is not required in order to apply for the spousal work permit, and while the principal worker must hold a skilled position, there is no such requirement for the spouse.

Definition of Spouse

The Canadian spousal employment provisions embrace a wide range of relationships. While in the United States one must be legally married to qualify for spousal employment benefits, the Canadian program includes common law and same-sex relationships as well as traditional legal marriages. Common law marriage is defined in the regulations as cohabitation in a conjugal relationship for more than one year. The couple is usually asked to provide a Statutory Declaration with respect to the relationship as well as supporting documents such as a lease, bank statements, or utility bills showing both names at a shared address.

Cases involving couples living in separate cities yet maintaining a partnership are harder to prove, but they can be done. Note that employment authorization will not be granted to the children of a foreign worker.

Duration

Another limiting factor in this program is the duration of the principal foreign worker's work permit. It must be valid for a duration of at least six months to enable the spouse to obtain a work permit. However, there is no limit to the maximum duration of the spousal work permit. Thus, if the principal's work permit in Canada is valid for three years, so, too, will the spousal work permit.

Medical Requirement

A medical issue arises in connection with Canadian work permits. All foreign workers must obtain medical clearances before accepting employment in health-sensitive areas such as hospitals, childcare, primary or secondary school teaching, and food preparation. Spousal work permits are no exception. Spousal work permits will contain the annotation "open restricted" when the holders have not undergone a medical exam. These permits are "open" with respect to type, industry, and skill level of work, but "restricted" with respect to health-sensitive sectors. An individual can obtain an "open unrestricted" work permit by submitting the results of a medical exam prior to applying for the work permit.

When and Where to Apply

There are three options for when and where spouses may obtain a work permit. They may apply at the same time as the principal spouse at a visa post abroad, on arrival at the port-of-entry, or subsequent to arriving in Canada by application to the inland Case Processing Centre.

The United States Spousal Employment Program

The United States also has a spousal employment program which, in the author's opinion, is more limited and cumbersome than the Canadian program. In the U.S. there are many different categories of employment authorization and eligibility for a spousal employment authorization depends upon the category of the principal work permit holder. Only the spouses of work permit holders who are either intra-company transferees ("L" work permits) or investors and traders ("E" work permits) are eligible for spousal work permits. This leaves many other categories of workers without the opportunity for their spouses to work. The U.S. provisions are more liberal than their Canadian counterparts in that they do not require that the principal work permit holder have six months remaining on the work permit. However, U.S. regulations do impose a maximum period of eligibility for a spousal work permit of two years.

Additionally, the American application procedures are less convenient than their Canadian counterpart. In Canada, the spousal work permit may be obtained simultaneously with the principal spouse's work permit as described above, so that the spouse is authorized to begin work from the day of arrival. In the U.S. the spousal work permit can only be acquired following the principal spouse's admission to the United States. At that time an application is filed and processing time can be up to six months.

Conclusion

Canada led the way in developing a spousal employment authorization program and maintains on balance a significantly more liberal program than that of the United States. In Canada, a much wider range of types of principal employment confer spousal employment benefits, common law and same sex couples are eligible for benefits, and rapid port-of-entry processing is available, all of which make Canada's spousal employment program among the most progressive in the world..

By Asher I. Frankel

Special to the Ottawa Business Journal

Asher Frankel is a partner in the immigration law firm of Rekai Frankel LLP in Toronto. He is regularly in Ottawa on immigration related matters. He can be reached at asher@mobilitylaw.com