Undetermined Job Contracts and their Function in a Canadian Immigration Process

Being a foreigner and having a job offer in Canada could open doors towards a permanent residency, however, the definition of a job offer can vary depending on which procedure you use.

An undetermined job contract, or, a labor contract without termination date does not necessarily mean that it will serve for immigration and it will not always be considered as a job offer for purposes of immigrating to Canada.

To understand the concept of undetermined contracts and their impact on immigration; the first step is to identify that the Labor Rights that regulate the employment contracts, is under provincial jurisdiction and its fundamentals are found under the Constitution of 1867 Article 92(10). Meanwhile, the immigration area is under federal jurisdiction and it is regulated through Article 91(25) of the same Constitution.

This division of faculties helps us to understand that the sector that regulates the labor contracts and the sector that regulates job permits for foreigners to issue said contracts are separate jurisdictions. Likewise, when conflict arises between jurisdictions, the Canadian courts have established how to proceed.

An example of conflict between jurisdictions would be the following:

1. A foreigner has been hired in an undetermined way, his/her contract states that the employment period is “open” and has no expiry date.
2. The work permit expires in a couple of months or in a few years.
3. The applicant wishes to validate their undetermined contract in order to continue working in Canada and then obtains a new work permit before the Immigration Department to Canada.

In the previously mentioned scenario, it is not possible to validate the labor contract in order to ensure a new permit; this is primarily due to the fact that the federal government is the one who has the last say with regards to labor permits in accordance to the immigration laws and active procedures.

The basis for this is grounded on the Doctrine of “Paramountcy”. This principle of Canadian Constitutional Rights establishes that priority will be given to the application of federal laws when they are in conflict with a provincial law.

The undetermined job contracts, are only valid for obtaining a work permit as long as they are pre-approved via an Immigration program, for example, when a LMIA or PNP is solicited.

This also happens when a Canadian employer offers a letter in order to obtain a work permit, a letter on its own, is not sufficient and falls within the same principles here aforementioned.

If your employer has offered you an undetermined contract or a letter, the best way to validate it is through an immigration program that is in effect.

At GlobalAG we can help you evaluate your offer and determine the option that best suits you.