published on 24 October 2016 @ 3:45 pm · COMMENT

ETA Deadline Approaching & Employer Compliance Filing for NAFTA Employers

ETA Required Prior to Travel to Canada: Final Deadline Approaches

Immigration, Refugees and Citizenship Canada (IRCC) has extended the Electronic Travel Authorization (eTA) requirement date for visa-exempt nationals. Non-U.S. visa-exempt foreign nationals who are travelling to Canada by air must obtain an eTA prior to entering Canada effective November 10, 2016.  This date has been extended from the previous mandatory cut-off date for the eTA requirement (September 30, 2016).

Non-U.S. visa-exempt Canadian work permit, study permit and visitor record holders require an eTA in order to return to Canada by air as of November 10, 2016.

Non-U.S. applicants applying for a work permit at the Canadian border must apply for an eTA prior to boarding their flight to Canada.

The eTA requirement does not apply to the following foreign nationals:

1. Individuals who hold a valid Canadian temporary resident visa or temporary resident permit;

2. Citizens of the United States (permanent residents of the United States will require an eTA);

3. Citizens of France who are residents of St. Pierre and Miquelon who seek to enter Canada directly from St. Pierre and Miquelon;

4. Certain foreign nationals transiting through Canada as a passenger;

5. Foreign nationals seeking to enter and remain in Canada to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they:

• Held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and
• Return to Canada by the end of the period initially authorized for their stay or any extension to it;

6. Certain diplomats, visiting forces, or aviation crew or inspectors.

 

Employer Compliance Filings Place New Burdens on Employers

Seeking NAFTA Work Permits To Canada

On October 26, 2015, Immigration, Refugees and Citizenship Canada (IRCC) brought into operation a new employer compliance filing system in order to process offers of employment made by Canadian employers to foreign workers through the International Mobility Program (IMP).  Offers of employment that are made to foreign workers through the IMP are exempt from the requirement for employers to obtain a positive Labour Market Impact Assessment (LMIA). The IMP includes inter-company transferees and NAFTA work permits.

Under Canada’s employer compliance regime, all employers applying for LMIA-exempt work permits for their employees, including NAFTA work permits, must file employer compliance documentation before the foreign national arrives at the border. The employer must also pay an employer compliance fee of $230.00 in order to file this information.

This policy is a shift which is applicable to NAFTA employers. Some legal experts argue that it is a violation of the NAFTA mobility provisions. Previously, NAFTA employees were permitted to apply for their work permits at the Canadian port of entry, without filing documentation in advance.

The new employer compliance filing is based on a complex legislative criteria that involves a formula-based financial penalty system for non-compliance. In order to file the offer of employment, the employer must document the terms of the proposed employment, including wage, hours of work, hourly rates, benefits, educational requirements, specific job duties, and many other terms of the proposed employment in Canada. Whilst performing their job duties in Canada, the employee’s job duties must not deviate from the terms that have been filed with IRCC.

IRCC has the legal authority to investigate all employers who have hired temporary foreign workers in Canada at any time without a warrant. During an immigration audit, IRCC will review the terms of each temporary foreign worker’s employment in Canada to ensure that the employment meets the terms specified in the online offer of employment.

The requirement for filing the online offer of employment has created an increased margin of error for employers which can be potentially devastating. The consequences for noncompliance are severe and include fines up to one million dollars per annum, per employer. For assistance in filing employer compliance reports and to minimize compliance liability, please contact our office.

 

Firm News

• We congratulate Carrie Wright on her five year anniversary at BartLAW and on her promotion to Senior Associate and Compliance and Litigation Manager.  Prior to joining BartLAW, in 2010 and 2011, Carrie clerked at the Federal Court for The Honorable Justice James O’Reilly and the current Chief Justice, The Honorable Justice Paul Crampton.

• Jacqueline Bart will be speaking at the UIA 60^th Annual Congress in Budapest in two separate sessions on Canadian Immigration:  Interactions between Immigration and Politics and on Compliance and Privacy Protection in Canadian Immigration law.

• We are delighted to announce that BartLAW receive the following award from The Lawyer International – Legal 100 – 2016 – Awards: Law Firm of the Year – Immigration Law – Canada.

• Jacqueline Bart won Immigration Lawyer of the Year in Canada for 2016 from FINANCE MONTHLY GLOBAL AWARDS.

filed under: IMMIGRATION NEWS