• The assessment of the genuineness of the job offer is enumerated pursuant to section 200(5) of the Regulations. The Officer exceeded his or her jurisdiction, refusing the Applicant’s LMIA application for reasons which do not exist in law. There is no legislative requirement that a company be in operation for one year, nor that the company be able to support the worker for an indeterminate period. The Applicant further respectfully submits that no company is able to indeterminately sustain an individual’s salary as such a benchmark is undefined and results in a floating target.

• The LMIA was refused for insufficient recruitment.  ESDC has previously approved approximately one hundred workers for this employer over the past ten years.  Without any change to the law or a material difference in the recruitment efforts, these two new LMIA applications were refused based upon policy guidelines on ESDC’s website. The Officer’s adherence to the advertising guidelines absent an individualized assessment is incorrect in law and demonstrates a fettering of the Officer’s discretion by policy directives.

• The LMIA was refused as the Officer determined that the company has “not demonstrated sufficient efforts to hire Canadians in the occupation”.  The Officer’s only stated rationale for refusal was that the prevailing wage was unreasonable for the position, given the experience required and the location of the job. The Officer based his rationale on an improper inference (wage too low for experience and location), without any evidentiary basis, while ignoring the Applicant’s evidence. Finally, the Officer erred in law by believing that he was functus and unable to consider the Applicant’s request for reconsideration.

• The Officer refused to amend the trade for which the LMIA was granted. The request for an LMIA was to enable the Applicants to hire a Fitter-Fabricator on a Canadian work permit; the LMIA was issued for an ironworker. It is the Applicants’ submission that by bypassing the role of authorised third-party representative that the Officer has erred.

Often, officers’ decisions demonstrate an understanding that Departmental policy is binding and sufficient grounds for refusal. It is, in the end, an individualized assessment and this requires discretion, rather than strict compliance with policy. Respondents’ policy statements on recruitment, for example, are often expressed in mandatory language.  Until a proper balance is struck, it is an almost certainty the Federal Court will be called upon to weigh in on defining the scope and legal authority of this new work permit regime.

For more information on Federal Court Applications and Appeals, please click here.

The post Fixing the TFW Program: The Fine Line between Discretion and Compliance first appeared on Bellissimo Law Group.

1. Compliance Regime 2011-2015 – What are the Changes?
2. What are the Legal Means to Review Employer Compliance?
3. What are the Enhanced Enforcement Measures as of December 1st, 2015?
4. What Legal Authority does ESDC have to Conduct an ECR?
5. What Will Become of Ministerial Revocations, Suspensions and Refusals?
6. Why are Key Terms in the TFWP Undefined?
7. Are ESDC Officers Constrained by Policy?
8. Are Administrative Monetary Penalties Capable of Attracting Charter Scrutiny?
9. Are the Enforcement Measures Too Legally Broad?
10. Should Employers Be Concerned About Collateral Provincial Proceedings?

These are all important questions. Given the breadth of these changes, I have dedicated a new chapter in the next update of Canadian Citizenship and Immigration Inadmissibility Law, 2nd Edition on the Employer Compliance Regime. One example of the myriad of issues these questions raise is under section 209.6, where an Officer or the Minister may compel an “employer to report at any specified time and place to answer questions and provide documents that relate to compliance with those conditions.”

There is nothing in the Regulations that speaks to the reasonability of the reporting requirement, nor are any limits placed on the documents that are to be produced, nor the questions that may be asked – except that they are to relate to compliance with the conditions set forth in sections 209.2 and 209.3 of the Regulations. The difficulty with this limitation is two-fold. First, the conditions are undefined, making it difficult to ascertain where the limits are on the examination. Second, the conditions address whether “substantially the same but not less favourable” “wages and working conditions” are being provided, but what is meant by this requirement is not publicly available or defined in law.

This is a fascinating area of evolving law and policy and it is an almost certainty that Federal and Provincial courts will be called upon to weigh in on defining the scope and legal authority of this new regime. Our firm remains heavily involved in a number of cases involving the compliance regime and each experience informs our understanding of the process that it is still so new.

The post Canadian Employer Compliance Regime: Ten Important Questions! first appeared on Bellissimo Law Group.

The Employment Minister will ask a parliamentary committee for proposals to fix the TFW program. Among the issues that could be reviewed are caps to the percentage of foreign workers that companies can employ, prohibitions to hiring in regions with high unemployment, and obstacles preventing seasonal hiring.

This announcement is one among many slated reviews or rollbacks of legislative and policy changes put in place by the previous government, as outlined in the Prime Minister’s mandate letter to Minister of Immigration, Refugees and Citizenship John McCallum in early 2016. The mandate also touches on changes to be made to refugee policy and permanent residence programs, such as parent and grandparent sponsorship, spousal sponsorship and the Express Entry intake system for skilled worker applications.

Details are only preliminary at this point; we will keep you updated with any further developments.

(Sources)

The post Parliamentary Committee to Review Temporary Foreign Worker Program first appeared on Bellissimo Law Group.

AMPs are a form of administrative sanction which will be administered by Citizenship and Immigration Canada (CIC) and the Employment and Social Development Canada (ESDC).  They are cumulative and can range from $500-$100,000 per violation. Non-compliant employers may also face a period of ineligibility to hire foreign nationals.

When determining the total AMP that will be assessed against a non-compliant employer, a points determination will be administered. The size of the penalty will be determined by the points system below and take into consideration the following:

• Size of employer (less than 100 employees or less than $5M revenue – including affiliates);
• Type of violation, whether Type A, B or C violation;
• Severity of the violation; and
• History of compliance.

The government was clear that the purpose of this new regime was to encourage compliance with the TFWP and IMP, and not to punish employers.  Accordingly, if an employer voluntarily discloses a violation, ESDC may reduce the AMPs assessed against an employer.  It is important however that the disclosure be made prior to any compliance and enforcement action being initiated.  ESDC will also take into account the following circumstances when evaluating violations:

• Errors made in good faith
• Reasonable efforts were made to comply
• The violation resulted from a genuine misinterpretation of obligations or requirements
• The violation resulted from changes to Federal or Provincial law
• The violation resulted from changes to provisions of a collective bargaining agreement

Given the high monetary penalties now involved with findings of non-compliance, it is important that employers comply with the commitment(s) made both at the Labour Market Impact Assessment application as well as confirmation stage.  In addition, IMP employers must ensure they are compliant with the details confirmed on their “Offer of Employment to Foreign National Exempt from a Labour Market Impact Assessment” forms.

Stay tuned on our blog for more AMP information as it becomes available.

(Source)

The post Employer Non-Compliance: A Costly Affair first appeared on Bellissimo Law Group.

All new LMIA applications will now be marked as either “high-wage” or “low-wage”, depending on the new provincial/territorial median wage table. The table determines the wage which must be paid to a foreign worker and is based on a combination of factors, including occupation and region. This categorization can impact both whether an application is approved, as well as the related processing time.

Employers should continue to review the wages being paid to temporary foreign workers in order to ensure compliance with the new table. Further, employers should also note that as of 1 July 2015,  there will be limits on the percentage of low-wage employees that can be hired.

For more information on LMIA’s and Work Permits, please click here.

For more information on helping you comply with the rules, please contact us.

The post New Labour Market Impact Assessment Rules- Essential Reading first appeared on Bellissimo Law Group.

Highlights of Changes

Reformed Temporary Foreign Worker Program

• Will be overseen by Employment and Social Development Canada (ESDC)
• Labour Market Impact Assessment (LMIA) will replace previous Labour Market Opinion
• LMIA will require employers to disclose information including the number of Canadians who applied for the available position, were interviewed and the reasons for which they were rejected
• LMIA fee increased to $1000 for each temporary foreign worker position
• Wages will be used (instead of National Occupation Code) as the main criteria for administrating the TFWP
• Wages  that are paid at or above provincial/territorial median wage levels will be deemed as “high wage” positions and those paid below provincial/territorial median wage levels will be deemed as “low wage” positions
• Cap will be imposed on employers with 10 or more employees applying for a new LMIA consisting of 10% of workforce at every worksite, determined by the total hours worked.
• Transitional provisions, effective immediately, will permit employers who currently exceed the cap to benefit from a higher cap of 30%, which will be reduced to 20% on 1 July 2015 and eventually to 10% on 1 July 2016
• LMIAs for employers within Accommodation, Food Service or Retail Sales industries in regions with annual unemployment rates exceeding 6%
• Duration of work permits will be reduced to one-year
• Transition plans will be required for high-wage positions whereby employers must demonstrate increased efforts to hire Canadians
• 10-day processing times for highest-demand, highest paid and shortest duration occupations, i.e. skilled trades within top 10% of pay bracket for positions that are less than 120 days
• Government will inspect 1 in 4 employers using the TFWP
• Fines for non-compliance will be increased to $100,000, effective fall 2014
• On-Farm Primary Agriculture and Live-in Caregiver programs exempted from many of these new changes

New International Mobility Program

• Will be overseen by Citizenship and Immigration Canada (CIC)
• Program to facilitate foreign workers arriving through reciprocal agreements with other countries which benefit Canada (ex. free-trade agreements like NAFTA and GATS or youth exchange programs)
• Employers utilizing the IMP will be LMIA exempt
• New requirements will be imposed on employers to submit a foreign national’s job offer details to CIC
• New fees
• Increased monitoring and inspections

These changes greatly impact Canadian businesses hiring temporary foreign workers. Please contact us with any questions about the program or to discuss your options.

Click here to read  “TFW program creating headaches all over”  an article featuring Sindura Dar; associate at Bellissimo Law Group.

The post Temporary Foreign Worker Program Changed, Moratorium on Employer Access Lifted first appeared on Bellissimo Law Group.

The government proposed funneling $11 million dollars over two years, and $3.5 million per year ongoing to “strengthen the Labour Market Opinion (LMO) process to ensure Canadians are given the first chance at available jobs.”

Mario D. Bellissimo asked an important question: “how do you define unemployment by category and by region?”  If the Government limits the program’s use in places where there is a high unemployment rate, it could leave businesses in those regions without a practical way to recruit skilled workers in a reasonable time frame.

Canadian businesses often turn to the TFWP to acquire workers with science and technology skills who may not be present in high-employment regions.  Mario D. Bellissimo also stated that “placing limits on the program could have a lot of unintended consequences if the changes are too broadly drawn”.

Although, the budget did not provide comprehensive particulars; it did however promise to amend the program in several other ways including but not limited to:

• Ways to identify vulnerable workers;
• Improving processing times for certain applications;
• Ensuring better employer compliance to government terms for the program; and
• Making changes to the stream of applicants who are exempt from the Employment and Social Development Canada’s Labour Market Opinion process.

The government also plans to impose a $275 user fee per position to ensure full cost of recovery under the LMO process.  They plan to revisit the rules for companies with which Canada has a free-trade agreement.  The North American free trade agreement contains a clause providing for intra-company transfers.  This makes it difficult to make any changes without violating the terms of the agreement.

The changes to the TFWP outside of the LMO process are still being discussed.

To read the full article featuring Mario D. Bellissimo’s comments please click here.

The post Changes to the Temporary Foreign Worker Program first appeared on Bellissimo Law Group.

Mario Bellissimo was recently interviewed in an article appearing in the Toronto Law Journal entitled Compromising Change; a Canadian Immigration Retrospective.  The objective of the article was to discuss the impact of recent changes to Canadian immigration policy and to get a sense of the direction Canadian immigration is heading.

On changes to the Temporary Foreign Worker Program (TFWP), Labour Market Opinion (LMO) process, Expression of Interest (EOI), and to the Parent and Grandparent Program (PGP) Mario Bellissimo commented:

“The policy has shifted towards qualified facilitation (economic) and away from other classes and in particular the family class”.

The speed at which changes have been implemented by Citizenship and Immigration Canada, and the absence of meaningful public consultation or debate are discussed. Mario Bellissimo suggests that this:

“fast and furious reform seems to be outpacing an overall cohesive vision moving forward”.

The introduction of Ministerial Instructions was agreed to be the biggest “game changer” to Canadian immigration law.  Ministerial Instructions allow the Minister to make major changes to immigration selection criteria without requiring legislative or regulatory amendments, and with no opportunity for parliamentary or judicial review.

The article also touches on the problematic nature of the government’s choice to use retroactive laws, and specifically the decision to terminate nearly 300,000 Federal Skilled Worker applications dating back to 2004. Mario Bellissimo is quoted as saying:

“Certainty of selection, if the termination stands, legally and otherwise will be relegated to the scrapheap, replaced by a reality of looming retroactivity whenever the perceived need arises. This legal foundation in my mind is not sustainable as immigration categories will become moving targets…. this is a serious blow to the integrity of our immigration system and government.”

The author echoes this position by saying the unilateral policy changes undermine the ability of Canadians to decide the best ways for new immigrants to contribute to society. The trend is moving away from attracting temporary workers and allowing them to stay as permanent residents and citizens. One of Canada’s goals is to attract immigrants who will contribute economically and socially to Canadian society, but for many highly skilled economic migrants the ability to sponsor family members to Canada is also of paramount importance. Mario Bellissimo commented:

“Our lens must change. We must first closely and carefully study social as well as economic fusion and functionality across all categories. Second, the family class need not only be thought of as a non-economic category and economic migration as a category that does not impact our nation building”

Looking forward, there is a sense that procedural fairness must be addressed for Canada to regain its competitive position internationally and its reputation as a nation built on economic, social and cultural openness.

The post Mario D. Bellissimo interviewed in the Toronto Law Journal first appeared on Bellissimo Law Group.