published on 13 January 2016 @ 5:39 pm · COMMENT

Canada’s Temporary Foreign Worker Program: What is new?

Corporations sponsoring foreign workers under the Temporary Foreign Worker Program (TFWP) must meet specific requirements to hire foreign workers and uphold the conditions as set out in the employer immigration compliance rules, which came into force on December 1, 2015, in addition to the legal requirements announced previously in our newsletters. Employers of temporary foreign workers are deemed to be aware, based on current law, of their responsibilities and obligations under the current immigration compliance government rules.

ESDC/Service Canada has the authority to review the activities of any employer using the TFWP by conducting one of three types of audits:

• an inspection;
• an Employer Compliance Review (ECR); and/or
• a review under Ministerial Instruction.

The purpose of the government employer immigration compliance audits is to hold employers accountable to the following TFWP requirements based on the content of their TFWP application:

• ensuring they meet all of the conditions and requirements of the TFWP, as outlined in documents such as the Labour Market Impact Assessment (LMIA) application, the LMIA decision letter and annexes;
• keeping all records associated to their LMIA application and any other documents that demonstrate their compliance with the program conditions that are set out in the LMIA decision letter and annexes for a period of six years; and
• informing ESDC/Service Canada of any changes or errors relating to an approved LMIA or the temporary foreign worker.

The rules require that the employer ensure and “regularly review the activities related to the employment of temporary foreign workers to ensure they continue to uphold the TFWP conditions”.

Inspections are warrantless. During an inspection, ESDC/Service Canada will verify whether employers have upheld the conditions set out in the offer of employment, as well as the positive LMIA letter and annexes. These conditions may relate to general TFWP requirements for employers, such as providing the agreed-to wages and making reasonable efforts to provide a workplace free of abuse, or specific agreements negotiated before the LMIA is issued, such as commitments made by the employer to train Canadians.

Inspections may be conducted during a period of six years beginning on the first day of the period of employment for which the work permit is issued to the foreign worker. Once an audit is triggered, an investigation will occur. Auditors may conduct site visits without a warrant, interview the employer and ask any relevant questions based on the conditions set out in the LMIA application, decision letter and annex and interview any person employed by the employer, and ask any relevant questions based on the conditions set out in the LMIA application, letter and annex.

During a warrantless inspection, ESDC/Service Canada investigators “have the authority to: use copying equipment on the premises, by requesting that the employer make copies of documents and remove copies for examination, or if not possible, make copies on the premises, remove the documents to make copies, take photographs and make video or audio recordings to support the findings of the inspection, examine anything on the premises that relates to the conditions set out in the inspection, access the employer’s computer or other electronic device in order to examine any relevant information/document contained in it, be accompanied or assisted on the premises during the inspection; and/enter a private household with a warrant or consent”.

Based on CIC policy and law, employers found non-compliant as a result of an inspection from a violation that occurred prior to December 1, 2015, could be subject to:

• a ban of two years from using the Program;
• suspension of their participation in the TFWP;
• the publication of their name, address and period of ineligibility published on a public website;
• a negative LMIA being issued for any pending applications; and/or
  the revocation of previously-issued LMIAs.

Employers found non-compliant as a result of an inspection from a violation that occurred on or after December 1, 2015, could be subject to:

• warnings and TFWP and other immigration program suspensions;
• administrative monetary penalties ranging from $500 to $100,000 per violation, up to a maximum of $1 million over one year, per employer;
• a ban of one, two, five or ten years, or permanent bans for the most serious violations;
• the publication of their name and address on a public website with details of the violation(s) and/or consequence(s); and/or
• the revocation of previously-issued LMIAs.

Consequences for violations that occur on or after December 1, 2015, are determined based on a points system that considers:

• the type of violation;
• the employer’s compliance history;
• the severity of non-compliance;
• the size of the employer’s business (for financial penalties only); and
• whether the employer voluntarily disclosed information about potential non-compliance before an inspection was initiated.

Consequences for employer violations under the rules (either before or after December 1, 2015), also include the following:

1. For misrepresentation or aiding and abetting misrepresentation (ie. Stating an employee is entering as a visitor when the employee under law needs a work permit): Up to five (5) years’ jail for officers and directors of the corporation/employer and up to $100,000 in fines;
2. For failure to obtain a work permit when required for an employee: up to two (2) years’ jail term for officers and directors of the corporation/employer and up to $50,000 in fines;
3. To the employee for misrepresentation: a five (5) year ban from Canada and other related employment law violations.

The above noted rules apply extraterritorially and employers (inside and outside Canada) are ‘deemed’ to know the law (ignorance of the law is not a justification). For more information about Canada’s employer compliance rules please contact our office.

filed under: TEMPORARY FOREIGN WORKER