published on 29 September 2010 @ 5:23 pm · COMMENT

Immigration Alert: Significant Changes to Temporary Foreign Worker Regulations in Canada

Various changes to the Immigration and Refugee Protection Regulations will become law on April 1, 2011, affecting both Canadian employers and their temporary foreign workers.

These changes aim at the following:

• Reducing the opportunity for exploitation of temporary foreign workers by employers and third-party agents;
• Ensuring greater employer-accountability mechanisms, including a denial of service provision, thereby encouraging greater adherence by employers to the terms and conditions of their job no offers with respect to wages, working conditions and occupations; and
• Providing clarification that employment facilitated through the Temporary Foreign Worker Program is meant to be temporary in nature.

The changes are as follows:

Rigorous assessment of the genuineness of the employment offer

The amendments establish specific factors to assess the genuineness of an employer’s offer of employment to a foreign worker both in Labour Market Opinion (“LMO”) cases and in LMO-exempt cases. These factors include:

• Whether the offer is made by an employer that is actively engaged in the business with respect to which the offer is made;
• Whether the offer is consistent with 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.

Ban on employers for non-compliance with a previous LMO

The amendments will render an employer ineligible to seek a work permit on behalf of a foreign worker unless, during the period beginning two years before the initial request for an LMO is made to Service Canada or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (“CIC”) or the Canada Border Services Agency (“CBSA”):

• The employer provided each of its foreign workers with wages, working conditions and employment consistent with the wages, working conditions and occupation set out in the employer’s offer of employment; OR
• The failure to do so was justified.

Justifications include:

• A change in federal or provincial law;
• A change in the provisions of a collective agreement;
• The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
• n error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
• An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
• Circumstances similar to those set out above.

The assessment is undertaken when a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA.

Employers must review all LMO applications to ensure compliance during the two-year period preceding April 2011. An internal immigration audit is recommended, and our office can assist the human-resources departments of your organizations to facilitate this process.

List of banned employers posted on CIC website

The amendments authorize CIC to maintain a list of banned employers on its website, stating the names and addresses of each employer and the date that the determination was made. Service Canada will not issue an LMO and CIC/CBSA will not issue a work permit for any employer on the list.

Four-year cap applying to most temporary foreign workers

The amendments provide for a cumulative four-year cap on foreign workers until a period of 48 months (i.e., 4 years) has elapsed. However, exemptions from the four-year cap exist in the following situations:

• The foreign worker intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions such as significant benefit to Canada and intra-company transferees, and other LMO exemptions, will be exempt from the four-year cap.
• The foreign worker intends to perform work pursuant to an international agreement between Canada and one or more countries. Work permits issued under international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, and the Canada-Chile Free Trade Agreement or the Peru Free Trade Agreement will be exempt from the four-year cap.
• A foreign worker who has reached the four-year cap is not necessarily required to leave Canada. However, the foreign worker would not be eligible for a work permit even under another category. The foreign worker may be permitted to apply for status under a non-work category such as a visitor or student.

Given the foregoing, it will be necessary for employers to ensure that foreign workers who intend to remain in Canada indefinitely apply for permanent residence immediately in order to prevent the refusal of future work permits.

filed under: IMMIGRATION ALERTTEMPORARY FOREIGN WORKER