Corporate Immigration Compliance

Regulatory changes to the Temporary Foreign Worker Program

Citizenship and Immigration Canada and Human Resources and Skills Development Canada, in consultation with stakeholders, worked collaboratively to develop amendments to the Immigration and Refugee Protection Regulations. These changes will help strengthen the integrity of the Temporary Foreign Worker Program and provide further protections for temporary foreign workers while alleviating temporary labour shortages.

As a result of these amendments, there are important changes to the Temporary Foreign Worker Program that affect employers and temporary foreign workers starting on April 1, 2011.

Highlights of the changes include:

1. A more rigorous assessment of the genuineness of the job offer;

- The genuineness of a job offer to a foreign worker, including a review of four factors for all work permit applications processed

• The employer is actively engaged in the business;
• The job offer is consistent with needs of the employer;
• The employer is reasonably able to fulfill the terms of the job offer; and
• The employer has complied with federal/provincial/territorial laws regulating employment in the province/territory where the worker will be employed.

2. A two-year prohibition from hiring temporary foreign workers for employers who have failed to meet their commitments to workers with respect to wages, working conditions and occupation;

- Workers are advised to protect themselves by consulting CIC’s employer ineligibility website prior to entering into or extending an employment agreement to determine if the employer they are planning to work for has been deemed ineligible to use the TFWP.

- Temporary foreign workers cannot enter into an agreement, or an extension of an existing agreement with an employer who has been deemed ineligible to use the TFWP. Doing so will result in the worker’s loss of temporary resident status in Canada.

3. A limit on the length of time a temporary foreign worker may work in Canada before returning home.

- The cumulative duration regulation establishes a maximum allowable duration of four years that a temporary foreign worker can work in Canada, followed by a period of four years in which the worker would not be eligible to work in Canada. It takes effect April 1, 2011 for all TFWs; therefore, the earliest date that a TFW could reach the four-year cumulative duration is April 1, 2015.

Pursuant to section 196 of the Immigration and Refugee Protection Regulations (IRPR), “a foreign national must not work in Canada unless authorized to do so by a work permit or these Regulations”.  In most of the cases (there are also exceptions), before applying for a work permit, the foreign worker must obtain a favourable Labour Market Opinion (LMO) issued by HRSDC/ Service Canada.  As the economy is fluid and changes continually, so does the labour market. Service Canada attempts to follow and adapt its policies accordingly.

Employment Regulation/LMO Process

In Canada, ninety percent of occupations are regulated by provincial and territorial governments that set the employment and labour standards, (employment contracts, termination, housing, health and safety, employee rights, etc.).  Ten percent of occupations are regulated by the federal government.  These standards vary by province and/or territories and occupation.  Employers must be aware that all foreign workers have the same rights as Canadian workers and job offers should comply with these standards, although in reality this is not always the case.

Pursuant to section 203(1) and 203(3) of the Immigration and Refugee Protection Regulations (IRPR), prior to issuing a work permit, CIC requires that  HRSDC/ Service Canada issues an opinion on the effects of the foreign worker on the Canadian labour market.

The second change refers to the introduction of the monitoring initiative.  Participation in this initiative is not mandatory. Service Canada introduced it to elicit feed back from employers to guide future decision making. The monitoring looks to an employer’s compliance in terms of employment standards, wages, work conditions, healthy environment, payroll remittances, reports to Service Canada / HRSDC of any lay-offs, new hirings, etc. Service Canada’s officers will also have the right to make on-site visits and consult with the employers.  Employers, who comply with the requirements of the LMO/Work Permit and prove their good standing, will obviously be viewed more favourably in obtaining future LMOs.

On May 19, 2009, Service Canada introduced new rules regarding the validity of LMOs.  All LMOs will have a validity period of only 6 months from the date of the issuance to apply for the work permit. The reason is that in the past the LMO was valid for 1-2 years or longer and by the end of their validity, the longstanding LMO would no longer reflect the reality of market needs. By restricting the validity period, the LMO is consistent with current market needs.  Consequently, the foreign worker must submit an application for a work permit during the 6-month period of the validity of the LMO.  Failure to do so will necessitate a new LMO application.

As there are many LMOs on the market that have their validity for different periods of time of up to three years, Service Canada decided to consider all LMOs issued before May 19, 2009 as expiring in 6 months from that date, meaning they are valid until November 19, 2009.  Some employers will argue that they expect the foreign worker to commence employment in more than six months after the date of the LMO. Service Canada encourages these employers to continue their recruitment efforts among Canadians and try filling these positions with local workers.

On June 9, 2009, Service Canada also introduced another initiative that is intended to help employers hire disadvantaged Canadians. These people include Aboriginals, people with disabilities, young and older people and newcomers are included in this group. Service Canada offers a whole list of places and organizations in each of these categories, where the employers might seek workers for their positions.  Thus, there are many changes that aim to better facilitate LMO’s for immediate labour needs but in light of the recession make no mistake we must take care of those amongst us first before looking abroad.  Curiously though, recession or not, should this not have always been the case?

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