published on 26 January 2016 @ 4:52 pm · COMMENT

Part Two: Canada’s International Mobility Program: What is new?

The International Mobility Program (IMP) is the immigration program that encompasses all work permits (and work permit exemptions) that were issued without obtaining a Labour Market Impact Assessment (LMIA). Just like under the Temporary Foreign Worker Program (TFWP) discussed in our previous newsletter, corporations sponsoring foreign workers under the IMP 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 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 IMP by conducting one of two types of audits:

• An inspection; and/or
• A review under Ministerial Instruction.

The purpose of the government inspections/reviews/audits is to hold employers accountable to the following IMP requirements based on the content of their IMP application:

• ensuring they meet all of the conditions and requirements of the IMP, as outlined in documents such as the “Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA)” form (IMM 5802) compliance filing and supporting documentation included in the application;
• keeping all records associated to the work permit application and any other documents that demonstrate their compliance with the employment conditions as set out in the IMM 5802 for a period of six years; and
• informing Immigration, Refugees, and Citizenship Canada (IRCC), previously Citizenship and Immigration Canada (CIC) of any changes or errors relating to work permit approval and the temporary foreign worker.

Employers should ensure and regularly review the activities related to the employment of temporary foreign workers to ensure they continue to uphold the conditions as provided to IRCC at the time of the work permit application.

Inspections are warrantless. During an inspection, ESDC/Service Canada or IRCC will verify whether employers have upheld the conditions set out in the offer of employment, as well as the compliance filing and the work permit application. These conditions relate to general IMP requirements for employers, such as providing the agreed-to wages, making reasonable efforts to provide a workplace free of abuse and maintaining the necessary records to demonstrate compliance.

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 compliance filing and work permit application, interview any person employed by the employer, and ask any relevant questions based on the conditions set out in the compliance filing and work permit application.

During a warrantless inspection, ESDC/Service Canada or IRCC 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 IRCC 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 IMP;
• Suspension of their participation in the IMP; and
• The publication of their name, address and period of ineligibility published on a public website.

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 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: INTERNATIONAL MOBILITY PROGRAM