Session 8b how to handle an h1 b audit_advise from the canada ringside_larry linton

PwC Law LLP | Copyright © 2015 INSZoom Immigration Conference
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INSZOOM Immigration Conference 2015
Empower Employees for Immigration Compliance

About the Author: Larry Linton
Larry Linton is a Senior Lawyer in the Immigration Law practice at PwC Law LLP. Larry has extensive
experience in providing immigration advice and assistance to businesses from a wide range of industry
sectors, including telecommunications and information technology, engineering, banking and financial
services, manufacturing, retail, education, oil and gas and professional services.
Larry regularly works with Human Resource professionals and internal mobility teams on policies and
procedures related to recruitment, retention, and related immigration matters. He also has experience
in helping private clients meet their immigration needs.
Furthermore, Larry has significant experience interacting with domestic processing centers, Canadian
Ports of Entry, and Canadian Consulate Generals, High Commissions and embassies abroad. He
provides training to human resource professionals on immigration compliance and the development
and implementation of related policies and procedures.
In addition to his call in Ontario, Larry is a duly admitted Attorney in South Africa and was called to the
Bar in New Zealand. He graduated with a Bachelor of Arts and a Bachelor of Laws degree from the
University of the Witwatersand, in South Africa. He is a member of the Law Society of Upper Canada
and the Immigration and Citizenship Section of the Canadian Bar Association.
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Canadian immigration
compliance
PwC Law LLP
Bengaluru
October 28, 2015
www.pwc.com/ca/immigration-law

Canada’s new
immigration compliance
and enforcement regime

Changes to Canada’s immigration compliance
program at a glance
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2011 –
Changes to
regulations
placing
increased
scrutiny on
employers
2012–
Introduction of
employer
compliance
reviews and
increased
penalties
2013 –
Increased
authority to
conduct on-site
inspections
2014 and 2015 -
Increased
enforcement,
new compliance
measures &
implementation
of more
draconian
employer
penalties

Government
investigative and
enforcement powers

Investigative and enforcement powers
• Increased number and scope of
inspections:
• One in four employers will be subjected
to an inspection each year
• An employer may be selected for an
inspection as a result of:
 An anonymous tip;
 Employer being classified as “high
risk” of offending; and/or
 Random selection.
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Investigative and enforcement powers
CIC, ESDC, and CBSA are now responsible for conducting three types of
compliance reviews to assess employers’ adherence to program conditions
and requirements:
1 Employer Compliance Reviews (“ECRs”)
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Review under Ministerial Instructions
(“RuMIs”)
2 Inspections
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A finding of immigration non-compliance
• Non-compliance occurs when:
 An employer fails to demonstrate, on a balance of
probabilities, that they are in compliance with Canadian
immigration laws, regulations, or program requirements; and
 The employer has failed to provide an acceptable justification;
or
 The justification provided requires the employer to provide
compensation to the foreign worker and the employer has
refused to pay the compensation or has not made sufficient
efforts to pay the compensation.
• A finding of non-compliance may also be made if an employer
refuses to provide documentation which has been requested or is
otherwise uncooperative during an inspection
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Defences to immigration non-compliance
• Employers may have an opportunity to correct the non-compliance, i.e.
repayment of wages owed
• Non-compliance may be “justified” (i.e. excused) in certain and limited
circumstances
• Non-compliance may be justified if it results from:
 A change in federal / provincial law
 A change to the provisions of a collective agreement
 Measures implemented by the employer in response to a dramatic
change in economic conditions
 An error in interpretation made in good faith by the employer with
respect to its obligations to a foreign national
 An unintentional accounting or administrative error
 Force majeure (e.g. natural disasters)
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Voluntary disclosure of non-compliance
• Employers may voluntarily disclose instances of non-compliance to
ESDC
• This does not mean that the employer will not face penalties
• The penalties may be reduced
• Disclosure must complete and timely (before any investigative or
enforcement action is started)
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Penalties for
immigration non-
compliance

Penalties for immigration non-compliance
Warning Letter
AMPs
Bans
Criminal
charges
Prison
sentence
Revocation or
suspension
of an LMIA
Revocation or
suspension
of work permit
Employer name is
published on a
government
“blacklist”
Bans of 1, 2, 5 or 10 years,
with permanent bans being
possible
Fines of up to $100,000
per offence (max of $1 M
per year per employer)
Criminal charges and
possible prison sentences
Revocation or suspension of
pending LMIAs and work
permits
Warning to be considered
in assessment of future
AMP penalties
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AMPs – Points system
Type of
violation
Voluntary
disclosures
Employer‘s
size
Severity of
violation
Compliance
history
AMP
points
system
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AMPs – Case study
• Employer in the energy sector was selected for a site-inspection after
the issuance of an LMIA work permit. During the inspection, an
interview is conducted of randomly selected employees, including
foreign workers. One foreign national complains of continued verbal
threats from other employees and that he has not been paid the wage
that he was promised in his employment contract
• The Employer is requested to provide documents related to its
policies on workplace harassment and abuse, as well as documents
related to the foreign workers salary. All requested documents are
provided without undue delay
• The employer has no previous findings of non-compliance
• The Employer is found to have not provided a workplace free of
abuse and that the pay and working conditions of the foreign national
is not substantially the same
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AMPs – Case study
Type of
Violation
Points
Penalties
History Severity
Changes to working
conditions and pay B 1 0-6 $0 - $30,000
Did not demonstrate
reasonable efforts to
provide a workplace
free of harassment
C 2 0-10 $2,000 - $80,000
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AMPs – Violations
• An employer who is found to be non-compliant without adequate
justification has committed a violation
• Violations of a single obligation which impact more than one foreign
worker will be treated as separate violations for each foreign worker
• Violations of multiple conditions involving one foreign worker will
be also treated as separate violations
• New LMIA and work permit applications will not be accepted until
the employer has paid the AMP
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Contact Details
Larry Linton
larry.j.linton@ca.pwc.com
PwC Law LLP
pwcimmigrationlaw-info@ca.pwc.com
1-800-993-9971
http://www.pwc.com/ca/law
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This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the
information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the
accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, PwC Law LLP, its members, employees and agents
do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the
information contained in this publication or for any decision based on it.
© 2014 PwC Law LLP. All rights reserved.
Thank you!
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Session 8b how to handle an h1 b audit_advise from the canada ringside_larry linton

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