Changes to the Temporary Foreign Worker Program, including hard
caps on the length of time temporary foreign workers can stay in
Canada and new sanctions against employers who fail to comply with
their commitments to temporary foreign workers, are slated to take
effect on April 1, 2011. Companies would be well advised to prepare
for the changes now, starting with conducting an immigration audit
of their existing workforce in Canada.
Two-Year Ban for Non-Compliance
Starting in April 2011, the government will assess employers who
are seeking to hire temporary foreign workers against past
compliance with program requirements. In cases where employers have
not met their previous commitments to workers with respect to
wages, working conditions and occupation, the employers may be
denied access to the temporary foreign worker program for two
years. Offending employers' names would also be published on
the Citizenship and Immigration Canada website.
If a company gets placed on the "bad employer" list,
then there is an automatic two-year ban from bringing any worker
into Canada. So even if this company had a critical need to bring
in a highly specialized worker or needed a new president and CEO to
transfer into Canada, it would be denied that opportunity. This
reinforces the need for 100 per cent compliance in managing foreign
workers, including those who are only coming in for short periods
Four-Year Limit on Employment
Another change will impose a four-year cumulative limit on many
temporary foreign workers' employment in Canada. After a
four-year work term, the workers will have to wait four years
before becoming eligible to work again temporarily in Canada.
Many temporary foreign workers will fall into this four-year
hard cap. Unless the company in Canada makes arrangements in
advance, they will be unable to retain the worker after the four
years have elapsed. Consequently, strategically planning the
management of the flow of temporary foreign workers into Canada
will become even more important for employers — you will
need to implement procedures to make allowances for retention and
succession planning so that important employees and their critical
skills are not lost.
McCarthy Tétrault Notes
To prepare for the changes, consider conducting an immigration
audit of your existing workforce in Canada. This can be
accomplished by running a query of all of your employees'
social insurance numbers. All employees have an obligation upon
being hired to provide a social insurance number within a few days
of hire. Any social insurance numbers that begin with 900 and have
an expiry date indicate that the person is NOT a Canadian Citizen
or Permanent Resident of Canada, and in most circumstances requires
a work permit. The work permit must either specify that they are
entitled to work for your company, or they must possesses a work
permit that is employer non-specific.
If, after running the query and conducting the audit, you find
anyone who does not have a work permit but does possess a 900
series SIN or has a work permit that specifies another company as
their employer, we recommend that you contact us as soon as
possible to assess your options. There may also be situations where
you have workers coming in who are not on your Canadian payroll,
but are providing assistance to your clients or your company
directly in Canada. Despite the fact that they do not have social
insurance numbers, they too must have a lawful work permit or
qualify for a specific work-permit-exempt category, so verifying
that they have proper documentation from Citizenship and
Immigration Canada is essential.
Conducting the audit also allows your company to deal with
retention issues with respect to the second change. It will give
you a full understanding of how many temporary foreign workers you
have in Canada and how many can be retained on work permits beyond
Given these upcoming changes and the existing severe liability
provisions in Canadian Immigration law against employers illegally
employing foreign nationals, it is in every employer's best
interests to conduct the immigration audit. This will assure
employers that you are in compliance with the law, and can begin to
implement strategic plans for managing your temporary foreign
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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