Open work permits for vulnerable workers [R207.1 – A72] – International Mobility Program (IMP) | Mercan Canada Employment Philippines. Inc.

Migrant workers in Canada on valid employer-specific work permits who are experiencing abuse, or who are at risk of abuse, in the context of their employment in Canada may be eligible to receive an open work permit that is exempt from the labour market impact assessment (LMIA) requirement, per section 207.1 of the Immigration and Refugee Protection Regulations (IRPR).

Objectives of this provision

to provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer
- This is done by opening the possibility of obtaining a work authorization for other employers.
to mitigate the risk of migrant workers in Canada who are leaving their job and working irregularly (that is, without authorization) as a result of abusive situations
to facilitate the participation of migrant workers who are experiencing abuse, or who are at risk of abuse, in any relevant inspection of their former employer, recruiter or both
to help migrant workers in assisting authorities, if required (noting that this is not required for the issuance of the open work permit), by reducing the perceived risk and fear of work permit revocation and removal from Canada

Definition of abuse

For the purposes of this process, “abuse” is defined in section R196.2(1).

Abuse consists of any of the following:

physical abuse, including assault and forcible confinement
sexual abuse, including sexual contact without consent
psychological abuse, including threats and intimidation
financial abuse, including fraud and extortion
reprisals

“Reprisal” is defined in subsection R196.2(2) as consisting of any measure that is taken by or on behalf of an employer against a foreign national referred to in subparagraph 200(1)(c)(ii.1) or (iii), and that adversely affects the foreign national’s employment or working conditions, because the foreign national has reported that the conditions set out in section 209.2 or 209.3 have not been complied with or because they have cooperated with an inspection conducted under section 209.7, 209.8 or 209.9 in good faith.

Examples of a reprisal would include (but are not limited to) the following:

a disciplinary measure
a demotion
a dismissal
any threat to take any of the measures mentioned above

Examples of abuse

The below definitions and examples are not exhaustive. Other types of physical, sexual, psychological and financial abuse and reprisals may also be taken into consideration.

Type of abuse	Description	Examples
Physical abuse	Physical abuse generally involves physical contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm, but it can also include conditions harmful to physical health.	hitting, beating, slapping, punching, choking, burning, pushing or shoving a worker in a way that results or could result in injury confining a worker (habitual residence or other) living conditions in employer-provided accommodations that are unsafe or unsanitary or pose a risk to the worker’s health forcing or pressuring a worker to work under conditions that are unsafe or pose a risk to their health forcing a worker to engage in drug or alcohol use or illegal behaviour against their will and possibly creating dependencies
Sexual abuse	Sexual abuse generally encompasses any situation in which force or a threat is used to obtain participation in unwanted sexual activity as well as coercing a person to engage in sex against their will.	forcing or manipulating a worker into having sex or performing sexual acts forcing a worker to perform unsafe or degrading sexual acts using physical force to compel a worker to engage in a sexual act against their will using physical force, weapons or objects in non-consensual sexual acts involving other people in non-consensual sexual acts exposing, suggesting, attempting or completing a sexual act involving a worker who is unable to understand the nature or condition of the act, unable to decline participation or unable to communicate unwillingness to engage in the sexual act (for example, because of illness, disability, the influence of alcohol or other drugs, intimidation, or pressure)
Psychological abuse	Generally, psychological abuse is a pattern of coercive or controlling behaviour, iterated threats or both.	insulting, intimidating, humiliating, harassing, threatening (including with respect to immigration status or deportation), name-calling, yelling at, blaming, shaming, ridiculing, disrespecting or criticizing a worker controlling what a worker can and can’t do threatening a worker with murder intimidating, threatening or harming a worker with a knife, gun, or other object or weapon using religious or spiritual beliefs to manipulate, dominate or control a worker
Financial abuse	Financial abuse is generally described as a form of abuse where one person has control over the victim’s access to economic resources. It can also involve situations where facts are misrepresented or information is withheld for the financial benefit of one party and at the detriment of the victim.	failing to pay wages owed to the worker (excluding cases of clear pay errors that have been rectified by the employer) stealing or taking a worker’s money, salary, or cheques or coercing them into giving these things up controlling or limiting the worker’s financial resources withholding money or credit cards exploiting a worker’s financial resources requiring a worker to deposit money into their bank account for fraudulent purposes closely monitoring how a worker spends money destroying a worker’s property spending a worker’s money without their consent charging a worker fees for a job that doesn’t exist short-term layoff or lack of work where the employer was aware that the layoff would occur during the employment contract and the employee only found out after they started working
Reprisal	Reprisal consists of any measure taken by or on behalf of an employer against an employee that adversely affects their employment or working conditions and was done as a result of the employee reporting that conditions have not been complied with or having cooperated with an employer inspection.	If done as a response to the employee reporting conditions or cooperating with an employer inspection: imposing a penalty (for example, transfer of work location or reduction of hours or benefits) disciplinary action (for example, suspension or probation) termination of employment intimidation or coercion demotion in work level or title threatening to take any of the measures above

Examples of abuse or risk of abuse in the context of employment

Abuse and risk of abuse may include but are not limited to the following:

The employer, a third party or both have abused the migrant worker by charging them job placement or recruitment fees based on false promises or misleading information (fraud), or are otherwise threatening, controlling or exploiting the worker.
The migrant worker is unwittingly a victim of a fraudulent job offer or unethical recruitment (such as foreign workers paying large sums of money for a positive LMIA, being paid reduced wages to cover the “cost” of a positive LMIA, or having no job when arriving in Canada).
The migrant worker is repeatedly harassed (for example, unwanted physical or verbal behaviour that is offending or humiliating) by a co-worker in their workplace.
The migrant worker is threatened by their employer if they complain about their work conditions.
The migrant worker has exited an abusive situation but would be at risk of abuse if they returned.
Forcing or pressuring the migrant worker to perform work that contravenes the conditions of their work permit (for example, working for a different employer than stated on the permit or performing different job duties), recognizing that this jeopardizes a worker’s status in Canada, is a form of coerced engagement in illegal activity, and may be accompanied by or enable further threats, intimidation and abuse.
The migrant worker may not be directly experiencing abuse but may be in a situation where their co-workers are being abused by their employer, putting them at risk of experiencing an abusive situation.

Applying for an open work permit in situations of abuse

Migrant workers must apply directly to IRCC by filling out a work permit application online.

Note: Applications for this work permit cannot be made to a Canada Border Services Agency (CBSA) officer at a port of entry. As per subsection R207.1(1), migrant workers have to be in Canada to be eligible for an OWP-V.

Migrant workers should include in their online application a letter of explanation detailing the abuse or risk of abuse and any other supporting evidence of the abuse if applicable (see below for examples of evidence). They are encouraged to use the Letter of Explanation – Open Work Permit for Vulnerable Workers [IMM 0017] (PDF).

In addition, migrant workers may use the following ways of communicating with IRCC to seek information on obtaining an open work permit for vulnerable workers:

contacting the Client Support Centre (CSC) to seek more information
- If the migrant worker wishes to apply for an open work permit, the CSC must instruct them to apply online. Once the online application is received, the relevant IRCC office contacts the migrant worker with an interview date, information regarding next steps or both.
presenting themselves directly at an IRCC office to seek information on how to apply
- Migrant workers are able to present themselves directly at an IRCC office during working hours, similar to refugee claimants. This service is only to provide migrant workers with information on how to apply for an open work permit. However, if a migrant worker has a disability and can't apply online, or if there is an IRCC system outage that prevents a migrant worker from applying online, they may use existing paper forms and present themselves at an IRCC office or contact the CSC.
  
  Note: IRCC employees are not allowed to assist migrant workers with filling out forms.
contacting relevant support organizations, such as settlement service providers or enforcement agencies, to seek assistance
- Settlement service providers and other support organizations are encouraged to provide support to workers making applications to IRCC. Settlement service providers and enforcement agencies should refer migrant workers to the IRCC website, CSC or closest IRCC office to find more information on how to apply.

Enforcement agencies

Examples of enforcement agencies include

the CBSA
the Royal Canadian Mounted Police (RCMP)
human rights tribunals
provincial employment standards branches and divisions (British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island)
the Ministry of Labour (Ontario)
the Commission des normes, de l’équité, de la santé et de la sécurité du travail (Quebec)
the labour standards divisions (Nova Scotia, Newfoundland and Labrador)

Potential human trafficking

For cases where a migrant worker self-identifies or is referred by a partner as a potential victim of human trafficking, officers should follow the instructions on Temporary resident permits (TRPs): Considerations specific to victims of human trafficking.

Eligibility requirements

Work authorization

At the time they apply, migrant workers must be in Canada and must either

have a valid work permit that is LMIA-required and issued under subparagraph R200(1)(c)(iii) (including work permits issued under the Seasonal Agricultural Worker Program [SAWP])
have a valid work permit that is LMIA-exempt, employer specific and issued under subparagraph R200(1)(c)(ii.1)
have applied for a renewal of one of these types of work permits under subsection R201(1) and be currently authorized to work in Canada under paragraph R186(u) (maintained status)

In addition, per subsection R200(3.1), paragraph R200(3)(e) does not apply to migrant workers referred to in subsection R207.1(1), who have engaged in unauthorized work or failed to comply with a condition. In other words, officers who have reasonable grounds to believe the migrant worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada should not refuse to issue the open work permit on the basis that the migrant worker has engaged in unauthorized work or has not complied with a condition.

Context of employment

Officers must have reasonable grounds to believe that the migrant worker is experiencing or is at risk of experiencing abuse in the context of their employment in Canada. Workers who have left an abusive employment situation before applying for this work permit are still eligible, as long as their employer-specific work permit is still valid or they are on maintained status. Generally, the employment context does not include abuse taking place in someone’s private dwellings (with the exception of workers who live in housing or accommodation provided by the employer). On the other hand, the employment context is not limited to abuse directly at the hands of the employer on record as abuse can also take place at the hands of co-workers and recruiters.

Experiencing abuse or being at risk of experiencing abuse

Both migrant workers who are experiencing abuse and workers who are at risk of experiencing abuse in the context of their employment are eligible for an open work permit. “At risk” includes migrant workers who left an abusive employment situation and would be at risk of experiencing abuse if they returned to that employment situation.

The onus is on the applicant to provide evidence of the abuse they are experiencing or the broader circumstances in which they find themselves and to demonstrate how these broader circumstances are making them believe or fear they could be at risk of experiencing abuse.

Evidence of abuse

When applying for the open work permit, the migrant worker must provide sufficient evidence to satisfy the officer that there are reasonable grounds to believe that they are experiencing or are at risk of experiencing abuse in the context of their employment in Canada.

The migrant worker is encouraged to describe the abuse or risk of abuse they face by submitting a letter of explanation.

In addition, noting that none of the following examples are required, evidence of abuse and risk of abuse may include but is not limited to the following:

a letter, statement or report from an abuse support organization, medical doctor, health care professional or other such entity
a sworn statement (affidavit) by the applicant
a copy of an official complaint form filed with an enforcement agency
- for example, a police or CBSA report related to an investigation or a copy of an official complaint completed by the migrant worker and submitted to a provincial enforcement agency, such as an employment standards branch
supporting or additional material, such as victim impact statements, hard copies of email messages, photos showing injuries or working conditions, and witness testimonies

Standard of proof – Reasonable grounds to believe

For the purposes of issuing an open work permit, officers must have reasonable grounds to believe that the migrant worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada.

The “reasonable grounds to believe” standard requires something more than mere suspicion but less than the standard applicable in civil matters of proof on the balance of probabilities. In essence, reasonable grounds exist where there is an objective basis for the belief that is based on compelling and credible information.

Compelling and credible information may include a document from a proper authority indicating that an event occurred; however, an anonymous letter alleging certain facts may not meet this threshold. Officers have to assess on the totality of the evidence in each case.

How to decide – Two-step decision-making process

Although the test for determining if a migrant worker is experiencing abuse or is at risk of abuse is reasonable grounds to believe, the assessment of evidence for the purpose of making factual findings is assessed on a balance of probabilities. This means that the finding of facts for each situational statement or explanation supported by the evidence is subject to an evaluation at a higher test (balance of probabilities), but the final determination to lead to a finding of abuse or risk of abuse is subject to a lower test (reasonable grounds).

In other words, officers need to do the following:

Step 1. Determine if the facts and evidence presented by the migrant worker are valid and credible on a balance of probabilities.

Step 2. Assess the totality of the circumstances and evidence and determine if they have reasonable grounds to believe that the migrant worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada.

When assessing applications, officers should maintain an objective and open mind, including when hearing the migrant worker’s story (if an interview is conducted) and, subsequently, when evaluating the evidence provided by the migrant worker.

Important: Officers should not contact the employer of record to verify any information.

Level of persuasion required by standards of proof for an element to be established

Standards of proof (higher to lower)	Description	Officer’s assessment
Beyond reasonable doubt	No doubt; convinced	Not applicable
Balance of probabilities	Likelihood of something being true	Step 1. Officers must be satisfied on a balance of probabilities (50 + 1%) that the facts and evidence provided by the migrant worker occurred and are credible. Did the events described take place? Did the situation occur? Is it credible?
Reasonable grounds to believe	More than a mere possibility; would satisfy an ordinarily cautious and prudent person	Step 2. Officers must determine if they have reasonable grounds to believe that abuse occurred or that there is a risk of abuse. Do the events reported amount to “abuse”? Was the applicant abused, or at risk of abuse?
Mere suspicion	Simply an emotional reaction that it might be possible	Not applicable

Reasons why migrant workers may not disclose abuse

In considering the facts of an application, officers are encouraged to consider that a person may endure abuse for a long time before seeking support or may never tell anyone. Therefore, it is possible that migrant workers may not disclose abuse when it starts occurring, and the timing of the application itself is not necessarily a negative feature and generally should not influence the duration of the new open work permit, if it is issued.

The reasons why workers may keep abuse secret relate to their circumstances, feelings, beliefs and level of knowledge about abuse. Examples of these reasons are

literacy and language or cultural barriers
- People who do not speak English or French may be unable to access services and supports in their own language, or they may fear deportation or other complications relating to their immigration status.
geographic or social isolation
- People who live in rural or remote communities, or who are not connected to others in their urban or rural communities, may lack access to information, resources, supports and services. They may also lack access to a computer or the Internet, which may delay or inhibit them from accessing information or application processes and forms.
dependency
- Migrant workers may be emotionally, physically or economically dependent on the perpetrator of the abuse. Migrant workers who are dependent on individuals for both work and housing (such as caregivers and agricultural workers) have a heightened dependency on their employers.
fear that they will not be believed
lack of trust in the authorities that can help them
high risk and fear associated with coming forward, notably if it can result in retribution or reprisal in the workplace, or if they fear a negative impact on their immigration status
belief that their sexual identity will be questioned
abuser manipulated, bribed, coerced or threatened them to prevent them from telling anyone about the abuse
- The migrant worker might be afraid of the abuser’s revenge.
lack of knowledge of how to report abuse, how to fill in an application or how to compile appropriate evidence

Interviews

Upon receipt of a case from a migrant worker, and where an officer has determined that an interview is warranted, officers may

arrange an in-person interview with the migrant worker
arrange a telephone interview with the migrant worker

Officers should be sure to give a reasonable amount of time for the migrant worker to provide the information or evidence they are requesting. The amount of time provided by an officer is a discretionary decision that must be assessed on a case-by-case basis. If the document or information requested is not easily obtained or requires input or validation from a third party, a longer period should be provided to the applicant to submit that information.

Note: Officers should keep in mind the urgency of these applications when determining which interview option to choose. However, where there are significant credibility concerns to address, or where an interview would facilitate the migrant worker’s clarification of their circumstances of abuse, an officer should consider an interview.

Arrangements for the interview can be made directly with the migrant worker or through an appointed authorized representative. Representatives should be clearly identified with a “Use of a Representative” form [IMM 5476], whether they are a settlement service provider or a migrant advocacy group. They should be unpaid, unless they are members of the Immigration Consultants of Canada Regulatory Council, lawyers or, in Quebec, notaries public.

Officers may use their discretion to determine whether or not an interview is required. If an interview is required, IRCC will utilize the interpreter contracts already in place to provide interpretation services, if they are needed.

If an interview is conducted, officers are encouraged to consult the interview considerations for cases of abuse. While any concerns regarding contradictions or gaps in the applicant’s submission or explanation should be addressed during the interview, officers should take into consideration the fact that individuals react to violence and trauma in different ways. It is not unusual for individuals who have suffered abuse to have difficulty recalling traumatic details, and in some cases, individuals may not be able to provide substantiating evidence.

Issuing open work permits for vulnerable workers

Migrant workers who have applied for an open work permit for vulnerable workers under section R207.1 are not required to obtain an LMIA or offer of employment.

In addition, per subsection R200(3.1), paragraph R200(3)(e) does not apply to migrant workers referred to in subsection R207.1(1), who have engaged in unauthorized work or failed to comply with a condition. Migrant workers are required to meet all other requirements of the IRPA and IRPR, including valid temporary resident status.

This open work permit is a transitional measure. On average, it may take approximately 12 months for migrant workers to find new employment and a new work permit and LMIA, if required. Previous work permit validity (or remaining time) should not negatively impact the duration of this open work permit. In addition, current processing times to obtain a new LMIA and work permit should be taken into consideration in determining the duration, given that issuance of a new OWP-V is only possible in very specific circumstances (see details on renewals below).

OWP-V applications should be processed as a priority. When possible, officers should contact the applicant within 5 business days from the time the application is received at the Vulnerable Persons Unit (VPU). This time frame may be impacted by fluctuating volumes of applications received.

Open work permits are issued under the authority of subsection R207.1(1) and are coded as follows:

LMIA Exemption Code: A72
National Occupational Classification (NOC): 99999
Intended Occupation: Open
Employer: Open
Case Type: 20
Special Program Code: VWOWP (vulnerable workers OWP)
Duration: At their own discretion, officers may consider a duration of 12 months. The work permit may not be valid for longer than the passport or travel document.
Fees: Applicants are exempt from the work permit processing fee per paragraph R299(2)(l). The open work permit privilege fee does not apply to OWP-V.

Subsequent OWP-V applications

Migrant workers are eligible for another OWP-V only if their previous employer-specific work permit is still valid (that is, it has not been revoked and is not invalid under section R209) or they have maintained status on their employer-specific work permit, and they continue to meet other requirements of section R207.1, meaning they are in Canada, and officers have reasonable grounds to believe they are still experiencing abuse or are at risk of experiencing abuse in the context of their employment in Canada.

Biometrics

These migrant workers are not specifically exempt from the biometrics requirement or from paying the biometrics fee. Biometrics and the biometrics fee should be requested. In situations where biometrics collection and/or payment of the biometrics fee is impossible or not feasible, to alleviate undue hardship on migrant workers applying for this work permit, officers may consider the use of the impossible or not feasible exemption under section R12.8 to exempt them from both the biometrics requirement and the fee.

Family members

Family members who are currently in Canada are eligible to obtain an open work permit under subsection R207.1(2) if the principal applicant has been issued an open work permit under this program. Family members have their work permits issued under the same program and for the same duration as the principal applicant or until the expiry of their passport or travel document, whichever is earlier. They benefit from the same fee exemptions as the principal applicant.

If a family member is working for the same employer and is also found to be experiencing abuse or to be at risk of abuse, the officer must add a note in GCMS, under the family member’s unique client identifier (UCI), with that information for inspection purposes.

As family members, dependent children who are of working age are also eligible to obtain an open work permit under the same program and for the same duration as the principal applicant or until the expiry of their passport or travel document, whichever is earlier. They benefit from the same fee exemptions as the principal applicant.