Immigration 101


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  • - Every LMO must now have a validity period (currently set at a maximum of 6 months but may be shorter in some circumstances)
  • This means that a foreign national may not be geographically relocated, and the wages and working conditions must remain substantially the same. The employee cannot be demoted but also cannot be promoted without going back to Service Canada for a new LMO.Query whether this means that an audit will be undertaken for each and every LMO.
  • Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers
  • Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers
  • Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers
  • Does not include work performed while on a period of authorized studyInternational agreements include NAFTA, GATS.Categories that are caught by this are any LMO based work permits, non-NAFTA intra-company transfers
  • Immigration 101

    1. 1. IMMIGRATION 101 Evelyn L. Ackah Business Immigration Lawyer June 15, 2012
    2. 2. Immigration 101 • Canadian economy requires more skilled and semi-skilled workers • Need to assess how to navigate through Canada’s temporary foreign worker program • HR the first to know about potential immigration needs • How to work successfully/efficiently with external immigration advisors 3
    4. 4. Canadian Work Permits • The temporary foreign worker program - governed by web of statutes, regulations, policies and programs • Significant discretion of immigration /border officers leads to inconsistencies • With security and economic concerns, entry to Canada has also been more difficult • The new normal is “constant change” • Employers must be proactive – not reactive 5
    5. 5. Canadian Work Permits • Assessment of Type of Work Permit: a) Is a work permit required? (The answer is almost always "yes" if the person is being recruited to work in Canada) b) If yes, is there an applicable LMO exempt work permit category under the IRPA, a treaty (e.g. NAFTA, GATS), or a special program? c) If not, a LMO (Labour Market Opinion) must first be obtained from HRSDC (Service Canada) 6
    6. 6. Immigration and Refugee Protection Act (IRPA) • Work defined as: “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market” • Under Canadian immigration law, foreign nationals are prohibited from engaging in work or assuming employment without first obtaining a work permit (there are limited exceptions to this rule) 7
    7. 7. Using NAFTA – LMO Exemption • The preferred tool to facilitate cross-border movement between Canada and the U.S. • Used for temporary entry - not permanent • Must be a U.S. or Mexican citizen • Three main categories: 1) business visitors 2) professionals 3) intra-company transferees 8
    8. 8. NAFTA: Business Visitors • Intended for short-term entry – meetings, training, sales activity • Should ensure foreign nationals always have business visitor letter when crossing border • Remuneration must be paid from outside Canada • Cannot be engaged in “work” activity • Must ensure foreign national is prepared before attending at port of entry 9
    9. 9. NAFTA: Professionals • Renewable indefinitely (can apply for permits up to 3 years at a time) • Must meet educational or experience criteria • Must be exercising the skills of the profession • Must have an offer or contract • NAFTA lists 66+ professions including Engineers, Geophysicists, Computer Systems Analyst, Scientific Technician - “Manager” or “Director” are not eligible positions 10
    10. 10. NAFTA Intra-Company Transferees • For employees at “executive” or “managerial” level, or those who have “specialized knowledge” • Must have worked 12 continuous months in preceding 3 years for the foreign related entity • Must prove proper corporate affiliation of entities • Time caps: Up to 5 years for specialized knowledge workers and 7 years for managers • Non-NAFTA Intra-Company Transfer category for those who are not American or Mexican 11
    11. 11. Part II Labour Market Opinions 12
    12. 12. The New TFW Regulations • “New” Immigration regulations became effective as of April 1, 2011 • Changes focus on “compliance” – strengthening protection for FWs and limiting the duration of temporary employment in Canada • Minimize the potential for FW exploitation and implementing stricter employer monitoring mechanisms 13
    13. 13. Labour Market Opinion Based Work Permits • To increase employer monitoring, HRSDC/CBSA/CIC have increased data collection and access, closer monitoring of FW conditions, capped work terms • Priorities: – – – – Accurate Employer Information Genuineness Compliance Cumulative Duration 14
    14. 14. LMO Based Work Permits Employer Information • Database for history of each employer • Signed statement that employer will abide by Program requirements and have abided by requirements • Copy of business license/permit; proof of legitimate existence as an active business 15
    15. 15. LMO Based Work Permits • • • • • Genuineness Increased documentary requirements in determining employer genuineness Actively engaged in business Offer must be within reasonable business needs of the employer Employer must be able to fulfill terms of offer Employer must show past compliance 16
    16. 16. LMO Based Work Permits Compliance • Increased enforcement of regulations through Employer Compliance Reviews (ECR) • Employers must demonstrate past compliance by proving they met substantially the same terms and conditions of employment as set out in previous LMO 17
    17. 17. LMO Based Work Permits Compliance • Employers must meet the substantially the same test (STS): • Complied with the wages, working conditions, and occupation set out in the original offer of employment for each foreign worker employed by the employer • This is retroactive going back 2 years! 18
    18. 18. LMO Based Work Permits What Records Should be Kept to show Compliance? • Wage and benefit information • Each FW’s name, address, telephone number, job title, detailed job description and location of work • Expenses incurred (directly or indirectly) during a recruiting process (including proof of who was paid) • Copy of LMO and WP • All contracts/agreements entered into with foreign workers and external recruiters • Record keeping is a must to be able to successfully pass an ECR 19
    19. 19. LMO Based Work Permits Compliance • With every new LMO application, HRSDC has authority to review past compliance for every foreign worker employed in the past 2 years • If found not to have met compliance requirements, must provide “reasonable justifications” • If found not to be compliant, can be listed on public website as “non-compliant employer” and banned from using TFW program for 2 years 20
    20. 20. LMO Based Work Permits Compliance – “Bad Employer” List • Public non-compliance list maintained by CIC: – To be posted on CIC website – Includes names/addresses of employers found non-compliant by either CIC or Service Canada – Employer will be notified of non-compliance first 21
    21. 21. LMO Based Work Permits Cumulative Duration – “Cap” • foreign worker is permitted to work in Canada for an accumulated total of 4 years: – Can apply again once 48 months has elapsed since the date that the FW accumulated 4 years of work – Several exceptions apply to the 4 year cap 22
    22. 22. LMO Based Work Permits Cap Exceptions • FWs in Managerial (NOC 0) and professional (NOC A) occupations • FWs who have applied for permanent residence and received a positive assessment • FWs who are employed under an LMO exempt category - such as NAFTA based work permit or other international agreements 23
    23. 23. LMO Based Work Permits ALMOs – Trusted Employers • Starting April 25, 2012, “trusted employers” are eligible to apply for “accelerated” LMOs reducing processing times of LMOs to about 10 working days • Attestation based LMO – must consent to undergo ECR –up to 20% of employers using this program will undergo ECR • To qualify for A-LMO employers must: – Have applied for and received approval for LMO within the past 2 years – Must be able to pass the Substantially the Same (STS) test and have a clean record of compliance with the program for 2 years – Must comply with all workplace laws (provincial and federal) – Request is for a NOC O, A or B level position 24
    24. 24. LMO Based Work Permits Changes in Evaluating Wages • Employers continue to be required to pay foreign workers the same wages they pay Canadian workers performing the same job in the same location • The wages paid to foreign workers can now be up 15% less than the “average wage” for skilled positions and up to 5% less than the “average wage” for low-skilled positions if this amount is equal to the wage being paid to Canadians 25
    25. 25. Part III TIPS TO ENSURE SUCCESS 26
    26. 26. Practical Pointers Before Submitting Immigration Application: 1. Be proactive and consider immigration issues early 2. Properly assess foreign national and purpose of entry and then develop appropriate immigration strategy and supporting documents (legal counsel can assist) 3. Consider whether mail-in application more prudent versus port of entry application 4. Choose best port-of-entry 27
    27. 27. Practical Pointers 5. Watch out for: – Inadmissibility due to criminal convictions or prior refusals – Entry visa requirements – visa offices can vary significantly – Immigration medical requirements – Accompanying dependents – Changes in laws, policies or procedures 28
    28. 28. Practical Pointers At the Port of Entry: 1. Educate the person crossing the border 2. Know the purpose of entry and your itinerary 3. Always be courteous with immigration / border officers – they have a lot of power and discretion 4. Always be honest. This avoids potential misrepresentations 29
    29. 29. Practical Pointers 5. Always travel with proper supporting documentation and package (this includes Business Visitors) 6. Travel during regular business hours. Then help can be contacted if there are problems 7. Never insist on entry if problems occur. May be allowed to withdraw the application. This may be better than a refusal 30
    30. 30. Why is immigration planning/compliance important? • Denial of LMO or work permits • Could result in removal of foreign workers if working without valid work permit • Costly to employer reputation (“non-compliant employer” list) • Heavy fines for employers if engaging unauthorized foreign workers • With passing of Bill C-35 earlier this year, employers must be careful to ensure HR specialists are NOT working in capacity of “immigration representatives” 31
    31. 31. Focus on Compliance - Summary • Employers must establish a culture of immigration compliance • Obtain extensions for work permits well in advance • Keep up to date and accurate records • Be aware of how provincial legislation may relate to FWs (i.e. OH&S, Employment Standards, etc.) • Plan ahead – immigration applications take time 32
    32. 32. THANK YOU! 33
    33. 33. QUESTIONS? Ackah Business Immigration Law Suite 1105 550- 11 Avenue SW Calgary, AB T2R 1M7 (403) 452-9515