Recent Changes to the Temporary Foreign Worker Program

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In this presentation, Helen Park discusses the Recent Changes to the Temporary Foreign Worker Program, topics include:

Temporary Work Permits
Labour Market Opinions
LMO Based Work Permits
Section 91 – Amendment to Immigration Act
Practical Pointers – Work Permit Applications
Why is immigration planning/compliance important?

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Recent Changes to the Temporary Foreign Worker Program

  1. 1. Recent Changes to theTemporary Foreign WorkerProgramHelen ParkMay 30, 2013
  2. 2. Temporary Work PermitsMay 30 2013 Dentons Canada LLP 2• Immigration Regulations have been amended in the past couple of yearswith most recent changes announced on April 29, 2013• Changes have focused on ensuring that Canadians/permanent residentsare given opportunities for employment first, compliance to ensureprotection for temporary foreign workers (TFWs) and limiting the durationof temporary employment in Canada• Ensure transition to Canadian workers, minimize the potential for TFWexploitation and ensure the program is temporary
  3. 3. Temporary Work PermitsMay 30 2013 Dentons Canada LLP 3• Suspension of the Accelerated – LMO (A-LMO) program which wasimplemented on April 25, 2012, for “trusted employers”• Additional questions to be asked about outsourcing ofpositions/company’s services outside of Canada on LMO applications• Cancelation of policy allowing for wage flexibility for LMOs allowingemployers to pay foreign workers less than the published “prevailingwage” if employers are paying Canadians the lesser wageChanges Announced on April 29, 2013
  4. 4. Temporary Work PermitsMay 30 2013 Dentons Canada LLP 4• Ensuring employers have transition plans in place to hire Canadians forpositions held by temporary foreign workers• English and French are the only mandatory languages accepted for LMOapplications• Greater authority for the government to suspend or revoke work permitsand LMOs if abuse of the foreign worker program• Implementation of an application fee for LMOs and an increase inprocessing fees for work permitsChanges Announced on April 29, 2013
  5. 5. Labour Market Opinions / Work PermitsMay 30 2013 Dentons Canada LLP 5• Over the past couple of years, to increase employer monitoring, ServiceCanada and Immigration Canada have increased data collection,monitoring of foreign worker’s work conditions, and implemented cappedwork terms• Priorities:• Tracking Employer Information• Genuineness of employment• Employer Compliance• Cumulative Duration of work permits
  6. 6. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 6• Database for history of each employer• Signed statements required by employers confirming that they have andwill abide by foreign worker program requirements• Requiring copies of incorporation documents and business license foremployers applying for initial LMOTracking Employer Information
  7. 7. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 7• Increased documentary requirements in determining employergenuineness• Proof that employer is actively in business• Offer must be within reasonable business needs of the employer• Employer must be able to fulfill terms of offer made• Employer must be able to show past compliance of LMO and work permittermsGenuineness of Employment
  8. 8. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 8• Increased enforcement of regulations through Employer ComplianceReviews (ECR)• Employers must demonstrate past compliance by proving they metsubstantially the same terms and conditions of employment as set out inprevious LMO(s)Employer Compliance
  9. 9. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 9• Employers must have substantially complied with the working conditions,wages and position/duties set out in the original offer of employment foreach foreign worker employed by the employer• This is retroactive going back 2 years• If an employer is found not to have complied with the terms, there is anopportunity to provide “reasonable justifications”Employer Compliance
  10. 10. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 10• Foreign worker is permitted to work in Canada for an accumulated totalof 4 years regardless of category unless:• a period of 48 months has elapsed since the date that the TFW accumulated 4years of work• the work was performed while enrolled in full-time studies in Canada• An exception applies to the TFW at the time of a new work permit applicationCumulative Duration – “Cap”
  11. 11. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 11• The following exceptions only become relevant when an application for anew work permit is made:• TFW holds a managerial (NOC 0) or professional (NOC A) level occupation• TFW has applied for PR and received a positive assessment from ImmigrationCanada in accordance with:• CAQ – Quebec Skilled Worker• Provincial Nominee Program acceptance if a provincial nominee• Positive selection decision under Federal Skilled Worker Class• Positive selection under Canadian Experience ClassCap Exceptions
  12. 12. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 12• TFW who is employed under International agreements such as NAFTA or otherinternational agreements including SWAP or International Experience Canada;however, there is a limitation for further work permits if categories are changedas the time worked in Canada is still included in the cumulative total (example:intra-company transfer for 3 years, then switch to an LMO based work permit inNOC B position, TFW only would be able to obtain a further 1 year work permitand would then reach 4 year cap)• Gaps in employment during the authorized duration of the work permit can beconsidered if gaps are for one consecutive month or more and must be trackedby the foreign worker (evidence, such as passport stamps should be recorded)• Spouses and common law partners of TFW who are NOT NOC level A or O willnot be permitted to apply for open spousal work permits beyond the 4 yearcumulative durationCap Exceptions
  13. 13. LMO Based Work PermitsMay 30 2013 Dentons Canada LLP 13• Wage and benefit information• Each TFW’s name, address, telephone number, job title, detaileddescription and the location of work• Expenses incurred (directly or indirectly) during a recruiting process(including proof of who was paid)• Copy of LMO application, LMO and WP• All contracts/agreements entered into with foreign workers and externalrecruiters• Record keeping is a must to be able to successfully pass an ECR• NOTE: if under ECR, all LMO applications submitted for the sameemployer will be place on hold while an ECR is conductedWhat Records Should be Kept in case ofEmployer Compliance Review
  14. 14. Labour Market Opinions – Key ElementsMay 30 2013 Dentons Canada LLP 14• Level NOC O or A - posting on employment website such asmonster.com, workopolis or Canada Job Bank (Work BC) OR conductrecruitment activities consistent with industry• Secondary source highly recommended for all positions – regardless oflevel• If NOC Level B,C or D, Canada Job Bank AND secondary source ofadvertising is required• Minimum 14 calendar days for advertising within 3 months of submittingan LMO application• Make sure advertising is consistent with LMO application and details arecarefully documentedAdvertising
  15. 15. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 15• Recommend attaching company job description to ensure consistency• Check the NOC 2006 job description to ensure no inconsistencies – maywant to list NOC code to ensure Service Canada looks at same NOCDescription of Duties
  16. 16. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 16• Critical to ensure that the foreign worker meets educational requirementslisted on LMO and advertisement as well as the NOC• If willing to accept work experience in lieu of education, this must beclearly specified and noted on the LMO and in the advertisementEducational Requirements
  17. 17. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 17• Ensure that description of any specialized work experience that isimportant for the position is included• Also include any occupational designations such as CA, CMA, CGA, RN,P. Eng• This information should mirror advertising conductedWork Experience Requirements
  18. 18. Labour Market OpinionsMay 30 2013 Dentons Canada LLP 18• Generally must be equal to or higher than the average prevailing wagefor the location of employment – www.workingincanada.gc.ca• Also must include holiday pay as a percentage or number of days –confirm provincial employment standards• This information should mirror advertising conductedWages & Benefits
  19. 19. Section 91 – Amendments to Immigration ActMay 30 2013 Dentons Canada LLP 19• Amendments made on June 30, 2011 provide that only licensed lawyersor licensed immigration consultants are permitted to assist in thepreparation of immigration documentation for a fee (includes thespecialists)• Must disclose whether they have used the services of a paidrepresentative in the preparation of immigration application• specific offences with penalties for breaching provisions includesignificant fines and even possible imprisonmentLicensed lawyers / immigration consultants
  20. 20. Practical Pointers – Work Permit ApplicationsMay 30 2013 Dentons Canada LLP 20• Things to watch out for:• Ineligibility due to criminal convictions or prior refusals• Entry visa requirements (Temporary Resident Visas) – changes more regularlythat you think – review each time• Immigration medical requirements for residence in certain countries – revieweach time• Accompanying dependents• Changes in laws, policies or procedures
  21. 21. Why is immigration planning/compliance important?May 30 2013 Dentons Canada LLP 21• Denial of immigration service (work permits/LMOs)• Loss of valuable employees (4 year cap)• Damage to image (“bad employer” list)• Costly/time consuming Employer Compliance Reviews• Exclusion/removal orders for foreign nationals• Fines for employers (if engaged in unauthorized work)• Careful to ensure HR specialists are NOT working in capacity ofimmigration consultants
  22. 22. Thank YouHelen ParkAssociate(604) 648.6516helen.park@dentons.com© 2013 Dentons. Dentons is an international legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking,action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidentialinformation may be relevant. Please see dentons.com for Legal Notices
  23. 23. The precedingpresentation containsexamples of the kinds ofissues companies dealingwith Temporary ForeignWorker Program couldface. If you are faced withone of these issues, pleaseretain professionalassistance as eachsituation is unique.

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