CANADA: Changes to Temporary Foreign Worker Regulations

from ABIL Global Immigration Update

As noted in the February issue of ABIL's Global Immigration Update, on April 1, 2011, the Canadian government introduced into law a number of important legislative amendments on employer immigration compliance concerning foreign worker work permits and Labour Market Opinions from Service Canada. In summary, the immigration law changes, which took effect April 1, 2011, are as follows:

A.  The government has introduced a new test to evaluate the genuineness of an offer of employment to a foreign worker, based on:

• Whether the offer is made by an employer that is actively engaged in the business in respect to which the offer is made;
• Whether the offer is consistent with the reasonable employment needs of the employer;
• Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
• The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

B.  The regulations limit to four the number of years in which certain foreign workers can remain in Canada on work permit status. Once they have completed the four-year work permit period, they are not authorized to work in Canada for another four years.

Fortunately for employers, some foreign workers are exempt from this four-year work permit limitation. Exemptions to the four-year limitation include foreign workers who have been on the following types of work permits or are in the circumstances listed below:

Temporary foreign workers in certain managerial or professional occupations.

Temporary foreign workers who have applied for permanent residence and received:

• A Certificat de sélection du Québec (CSQ) if applying as a Quebec Skilled Worker;
• A Provincial Nominee Program (PNP) certificate if applying as a provincial nominee;
• An approval in principle letter if applying under the Live-in Caregiver Class;
• A positive selection decision if applying under the Federal Skilled Worker Class; or
• A positive selection decision if applying under the Canadian Experience Class.

Temporary foreign workers who are employed in Canada under an international agreement, such as the North American Free Trade Agreement (NAFTA), the Seasonal Agricultural Worker Program, or another agreement.

Temporary foreign workers who are exempt from the Labour Market Opinion (LMO) process, including:

• Spouses and common-law partners of international graduates participating in the Post-Graduation Work Permit Program and highly skilled temporary foreign workers;
• Charitable or religious workers;
• Entrepreneurs, intracompany transferees, researchers, and academics; and
• Others for purposes of self-support (refugee claimants) or for humanitarian reasons (destitute students, holders of temporary resident permits valid for at least six months).

C.  The government has imposed sanctions on employers who do not comply with the new regulations by providing non-genuine job offers in the previous two-year period. The regulations require Citizenship and Immigration Canada (CIC) to post the name of the non-compliant employer on the CIC website.

D.  Recent announcements by Human Resources and Skills Development Canada (HRSDC) and CIC:

Effective April 1, 2011, the government has created a new Application for a Labour Market Opinion for high-skilled occupations. On the new application form, employers will be required to attest to the following, if appropriate (please consult your Alliance of Business Immigration Lawyers (ABIL) Global attorney before attesting to a matter that may not be correct, and please review carefully for accuracy before attesting):

"I will provide any temporary foreign worker employed by me with wages, working conditions and employment in an occupation that are the same as those described in the Labour Market Opinion confirmation letter and annex."

"I will immediately inform Service Canada/Temporary Foreign Worker Program officers of any subsequent changes related to the temporary foreign workers' terms and conditions of employment, as described in the Labour Market Opinion confirmation letter and annex."

"I am compliant with, and agree to continue to abide by the relevant federal/provincial/territorial laws that regulate employment in the occupation specified and, if applicable, the terms and conditions of any collective agreement in place. I recognize that any terms and conditions of the attached offer of employment are considered null and void if they are less favourable to the temporary foreign worker than the standards stipulated in the relevant Labour Standards Act."

"I am compliant with, and agree to continue to abide by federal/provincial/territorial legislation related to the temporary foreign worker's recruitment applicable in the jurisdiction where the job is located. I declare that all recruitment done or that will be done on my behalf by a third party, was or will be done in compliance with federal/provincial/territorial laws governing recruitment. I am aware that I will be held responsible for the actions of any person recruiting temporary foreign workers on my behalf."

In addition, when renewing a foreign worker application, employers must demonstrate that they have been in compliance with previous LMO applications. To demonstrate compliance, employers may be asked to provide any or all of the following:

• Payroll records (to demonstrate the appropriate prevailing wage and overtime paid, source deductions, and explanations of any non-standard deductions);
• Time sheets (to demonstrate that the workers are working the number of hours set out in the LMO confirmation);
• Job description (to demonstrate that the job description accurately reflects the information contained in the initial application and LMO);
• Work permit (to demonstrate that CIC has issued a work permit in compliance with the LMO confirmation information); and
• Various other documents depending on the circumstances, such as registration with provincial and territorial workplace safety, transportation costs, accommodation information and private health insurance, if applicable.

Service Canada and CIC have become much more enforcement-oriented concerning employer immigration compliance under the foreign worker programs.