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Important changes to the Canadian Temporary Foreign Worker Program
On April 1, 2011, amendments to the regulations under the federal Immigration and Refugee Protection Act came into force which impact employers of temporary foreign workers. The amendments introduce:
- A four-year time limit on some temporary foreign work permits;
- A two-year period of ineligibility for hiring temporary foreign workers for employers who fail to meet their commitments with respect to wages, working conditions and occupation;
- A more rigorous system for employer accountability; and
- Severe sanctions against employers for non-compliance with immigration regulations.
It is important that organizations employing temporary foreign workers become familiar with the new requirements.
TEMPORARY FOREIGN WORKERS SUBJECT TO A FOUR-YEAR CAP
The amendments introduced a four-year cumulative cap on temporary work permits. After working for a cumulative period of four years, many temporary foreign workers will now have to wait four years before they become eligible to apply for another work permit. Some categories of worker are exempt from the four-year cap, including individuals employed in certain managerial and professional occupations.
The four-year cap may be adjusted to account for legitimate breaks from work (such as parental leave or extended unpaid leave) if such breaks are supported by acceptable documentation. Also, the time spent by a foreign worker in Canada prior to April 1, 2011 will not be included in the calculation of the four-year limit.
Employers should determine whether the four-year cap applies in each case, and the impact this may have on their staffing plans. A job offer made to a temporary foreign worker who has reached, or is close to reaching, the maximum four-year duration could result in a refusal to issue a work permit, or in the work permit not being issued for the full duration of the job offer.
These changes are designed to encourage eligible foreign workers to apply for permanent residence instead of remaining in Canada on a temporary and indefinite basis. Foreign workers should therefore consider their options for permanent residence in order to avoid a scenario in which they may be required to leave the country and wait another four years before they become eligible to live and work in Canada.
ASSESSING THE GENUINENESS OF THE JOB OFFER
A more rigorous assessment of the genuineness of the job offer provided to a foreign worker will be applied, taking into consideration the following criteria:
- Whether the employer is actively engaged in the business in which the job offer is being made;
- Whether the job offer is consistent with the employer’s needs and is consistent with the type of business the employer is engaged in;
- Whether the employer can fulfill the terms and conditions of the job offer; and
- Whether the employer, or any person who recruited the foreign national on behalf of the employer, is compliant with the federal and/or provincial legislation relating to employment and recruitment.
All new employers to the Temporary Foreign Worker Program will be required to provide a copy of their business license or permit or other business documentation to establish that it is a bona fide entity carrying on business in Canada.
PENALTIES FOR NON-COMPLIANT EMPLOYERS
Employers seeking to hire temporary foreign workers will now be assessed against past compliance with the terms outlined in their Labour Market Opinion (LMO) confirmation letter and the employment contract. Employers will also be assessed against compliance with employment standards legislation.
Some employers may be asked to provide documentation to demonstrate compliance, which may include copies of the employment contract, payroll records, time sheets, job descriptions, provincial workers’ compensation clearance letter, receipts for private health insurance (if applicable), and information about accommodations provided by the employer.
If the employer is in breach of the terms in the LMO confirmation letter such as salary, benefits, position or location of work, the employer may be refused authorization to hire a foreign worker. In addition, Citizenship & Immigration Canada (CIC) may prohibit the employer from hiring temporary foreign workers for up to two years. The employer may also be publicly blacklisted on CIC’s website for two years.
In our view
Organizations that employ foreign workers should review all existing work permits and LMO approval letters for the purpose of determining whether there might be any compliance issues. If non-compliance is found, employers should attempt to remedy the situation. Employers will also have the ongoing administrative burden of tracking work permit expiry dates, and ensuring that supervisors and managers are aware of work permit restrictions.
Employers wishing to make changes to terms and conditions of employment, for example, a reduction in salary or benefits, a transfer to another position, a change to the job description, or a temporary relocation to another employer site – must ensure that the individual applies for an amended work permit before introducing the change. Otherwise, such changes can potentially put an employer in breach of a work permit, and can expose the organization to sanctions under the Immigration Refugee Protection Regulations.
In light of the requirements of the new regulatory regime, organizations that employ temporary foreign workers should develop policies and protocols to ensure work permit terms and conditions are respected, and to ensure that all the necessary paperwork is in place well in advance of work permit expiry. These policies should outline:
- The rules governing when managers should inquire about immigration status;
- The roles and responsibilities governing the collection of relevant documentation;
- What type of immigration documentation is required and the process to be followed in order to hire a foreign worker;
- When the Union should be consulted (where applicable);
- Consequences for non-compliance.
For further information, please contact Jonquille Pak at (613) 940–2760. |
