October 23, 2013 – Since CAPACOA’s initial response to changes to the Temporary Foreign Workers Program, Citizenship and Immigration Canada has been providing useful clarifications in the Foreign Worker Manual as well as in a Myth vs. Fact notice.
The International Artists: Myth vs. Fact notice was released by Citizenship and Immigration Canada on October 2. It confirms that there has been no change to the work permit fees and application process, as previously reported by CAPACOA. It also provides a very useful clarification regarding the new Labour Market Opinion (LMO) fees:
When an LMO application is made by a promoter or booking agent, so long as all venues are listed on the application prior to its approval, the LMO fee is paid only once. In other words, a foreign musician can play at multiple venues on a tour having paid for one work permit ($150) and if one business (like a promoter of booking agent) gets a positive LMO for $275 for each position requested.
The Foreign Worker Manual released in September provide the complete guidelines for the program. Subsection R186(g) and Appendix A of the manual detail the criteria upon which LMO and work permit exemptions for performing artists are granted. According to pp. 111-112 of these guidelines, concert series and festival presenters are exempt of LMO and work permit – even in instances when they rent a “bar, restaurant or similar establishment” to present a given concert:
There may be situations where a venue that would normally be considered a “bar, restaurant or similar establishment” may be considered a concert venue for a particular performance. For example, a local music or cultural association “rents” or “leases” a “club” on a night that the venue would not normally open, as a venue for the performance of a specific performer or group it has contracted with. Tickets are sold for that event (e.g., “The Moroccan Cultural Association presents Sam at Rick’s Café” as opposed to “Rick’s Café presents Sam”), and the venue opens and closes shortly before and after the performance (i.e., the operation of the business is tied directly to the performance). Even though the operators of the venue conduct their normal food and drinks business for the patronage of those attending the event, this may be considered a “concert” situation which warrants R186(g) work permit exemption.
Most jazz, folk, blues (etc.) festivals in Canada take place in the summer months and the performances are held outside. R186(g) clearly applies in these cases. However some performances which are part of the same festival do take place in bars. If festival performers are being paid by the festival organization and not by the bar or restaurant, it would be reasonable to apply R186(g), thus interpreting the bar as merely a concert venue. A flexible interpretation allows all of the festival performers to be treated in the same way. To verify that the performance taking place within a bar, restaurant or similar establishment is part of a festival, the performing artist’s contract must be between the foreign worker and the festival organization. If the contract is between the worker and a party other than the festival, such as the owner of the bar or restaurant, the performing artist requires a work permit.
How can I be sure that my activity is exempt?
In order to obtain a confirmation that a given series or festival presenting activity in a bar is exempt from Labour Market Opinions and Work Permits, a presenter would need to obtain an opinion from a Temporary Foreign Work Unit, as the Citizenship and Immigration Canada website suggests: “In cases where you believe a LMO or Work Permit exemption may apply, you can request an assessment (“opinion request”) from a Temporary Foreign Worker Unit, provided the foreign worker is from a visa-exempt country and is currently outside Canada.”
The contact information for Temporary Foreign Worker Unit are provided at: http://www.cic.gc.ca/english/work/employers/tfw-units.asp
Before sending in an opinion request, presenting organizations are advised to take time to read the Foreign Worker Manual on pp. 33-35 and 110-112. This will explain on which criteria how an opinion request will be assessed.
If you are facing challenges regarding the Temporary Foreign Workers Program
Please do let us know if you are facing challenges or if you have any concern with regard to the Temporary Foreign Workers Program. We are communicating regularly with music industry associations to define the most effective way to advise the government on policies regarding international touring in the live performing arts.
Summary of who does what
Employment and Social Development Canada (formerly Human Resources and Skills Development Canada)
Delivers Labour Market Opinion (LMO) through Service Canada Labour Market Opinion Processing Centres
Minister: Chris Alexander
Fees: Employers applying to hire TFWs must pay a processing fee of $275 for each performing artist and accompanying staff to cover the cost of a Labour Market Opinion (LMO).
Other requirement: Employers need to make efforts to hire Canadians before they will be eligible to apply for temporary foreign workers. For Canadian bar and restaurant presenters this may imply providing contact information on your website for artists who wish to send their materials and demonstrating that you are attending Canadian showcases to book Canadian artists.
Citizenship and Immigration Canada
Delivers Work Permit through Temporary Foreign Workers Units. Administers the Immigration and Refugee Protection Act (IRPA) and can deliver opinions on exemptions.
Minister: Jason Kenney
http://www.cic.gc.ca/english/resources/manuals/index.asp?expand=fw#fw (complete program guidelines)
Here to help you.
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