Canada: Major Changes to Canada's Temporary Foreign Worker Program

On April 1, 2011 major changes to Canada's Temporary Foreign Worker Program become law.   Amendments to the Regulations of Canada's Immigration & Refugee Protection Act will affect the ability of employers to hire and retain foreign workers, and will place greater emphasis on employer compliance. The Labour Market Opinion application requirements and form have also changed. 

To ensure that businesses comply with the new rules, it is imperative that employers and HR professionals understand the changes and adopt strategies to deal with the new regime.

New 4-year Time Cap on Some Foreign Workers

The bad news is that the new Regulations limit the maximum term that some temporary foreign workers (TFWs) can remain in Canada to a cumulative total of 4 years. Once a TFW has reached the 4 year limit, they will not be able to obtain another work permit in Canada for a period of four years.

However, the goods news for employers is that the time cap has many exceptions, and more than anticipated when the new Regulations were announced in August 2010. Initially it was thought that the time cap might apply to all LMO-based work permit holders, but it appears that it will only apply to TFWs who have LMO-based work permits in NOC B, C and D skill level occupations (the NOC is Canada's National Occupations Classification).

The new time cap is not retroactive. Therefore, the time a TFW spent on an LMO-based work permit prior to April 1, 2011 will not be counted toward the cumulative 4 year time cap.

In addition, it appears that the 4 years of cumulative time will be calculated based on the days the TFW actually spent working in Canada, not on the validity period of the work permit itself.  Examples of legitimate breaks from work include extended unpaid leave, parental leave and periods of unemployment. Consequently, if TFWs can document such breaks from work during the validity of their work permit, an officer may take that into consideration when calculating whether the 4 year time cap has actually been reached.

Many TFWs will be exempt from the 4 year time cap, including:

  • TFWs in managerial (NOC 0) or professional occupations (NOC A). Therefore, LMO-based work permit holders in occupations at these two NOC skill levels are not affected by the 4 year time cap.
  • TFWs who are exempt from the Labour Market Opinion process. This includes two key work permit categories used by many Canadian employers: (1) the intra-company transferee work permit category; and (2) work permits issued under international agreements (such as NAFTA, CCFTA, the Seasonal Agricultural Worker Program etc.)

Further information on the time cap and the exceptions is here: CIC Backgrounder on New 4 Year Time Cap.

While the 4 year time cap has many exceptions, employers will still need to consider what their long-term plans will be for their foreign employees relatively soon into their tenure, and consider initiating the permanent residence process for their TFWs. This is especially so for TFWs in Canada in NOC B positions who have an LMO-based work permit, as these TFWs will face the 4 year time cap so it is imperative to move them to permanent resident status well before the time cap is reached.



Genuineness of Job Offers to TFWs to be Assessed

The genuineness of an offer of employment to a TFW will receive more scrutiny under the new Regulations. This review will be done by Service Canada during the LMO application process, or by CIC/CBSA during the work permit application process for LMO exempt categories.

Four factors will be reviewed:

  • Is the employer actively engaged in the business?
  • Is the job offer consistent with the needs of the employer?
  • Is the employer reasonably able to fulfill the terms of the job offer?
  • Has the employer complied with federal/provincial/territorial laws regulating employment and recruitment in the province/territory where the worker will be employed?

The last factor suggests that an employer's breach of employment legislation such as employment standards legislation could cause a negative decision.



Two-Year Ban on Hiring TFWs for Non-Compliant Employers

The new Regulations place a greater emphasis on compliance and enforcement, thereby placing a greater onus on employers.

Non-compliant employers may face a 2 year ban on being able to hire TFWs, and the non-compliant employer's name and address will also be listed on CIC's website. While this change is stated to be aimed at protecting TFWs from a very small number of problem employers, all employers utilizing the Temporary Foreign Worker Program need to ensure that they are compliant.

As of April 1, 2011 if an employer is found to be in breach of any of a TFW's employment conditions, the new rules will hold the employer accountable. Employers must provide TFWs with substantially the same wages, working conditions, and position offered to them. This must have been done over the two years prior to the application. Therefore, when hiring a new TFW, employers may face not only a review of their current compliance, but a review going back two years.

If a 2 year ban is placed on an employer, this will obviously significantly impact the employer's human resources options, as skilled TFWs will not be available. 

The Regulations provide some defenses to employers that fail to provide substantially the same employment conditions, and employers may also be given the opportunity to rectify any breach before facing sanctions. 

Employers and HR professionals should implement internal policies and practices to ensure that they remain compliant at all times. 

More information on the changes is available here:  CIC Backgrounder on Regulatory Changes.



New LMO Procedures and Forms as of April 1, 2011

Not surprising, the emphasis on employer compliance and the assessment of the genuineness of the job offer has led to some changes to the LMO application process. 

There will be additional factors assessed by Service Canada. Service Canada has announced some changes and additional supporting documentation that may be required, especially for employers that have not applied for an LMO in the past:  New LMO Application Requirements as of April 1, 2011.

In addition, new LMO application forms must be used as of April 1, 2011. Employers therefore must avoid inadvertently using the old form on future LMO applications. 

The new LMO form for high skill positions (NOC skill level 0, A or B) is here: New LMO Form.

Other LMO application forms are here - Service Canada's LMO Application Forms Page

The new form has some new questions, and also requires a more detailed declaration to be made by the employer when signing off on the form. This includes an undertaking to "immediately inform" Service Canada of "any subsequent changes related to the TFW's terms and conditions of employment." Therefore, an onus is placed on employers to keep Service Canada informed of changes as they occur during the TFWs tenure.

More of the terms of employment are required in the form. This will protect foreign workers to a greater degree, and also put Service Canada in a better position to assess employer compliance on future applications. 

The form also now asks employers to provide a rationale for the job offer and to explain how the offer to the TFW will meet employment needs.

The form warns employers that the information they put into the form may be shared with provincial governments for the purpose of administration and enforcement of provincial legislation, including employment standards and occupational health and safety legislation.

The on-line LMO application system will be temporarily unavailable. It is expected to be available again in June 2011.



Strategies for Dealing with the New Regime

What should employers and HR professionals be doing to deal with the changes introduced on April 1, 2011?

  • Know what is happening - all employers, foreign workers and HR professionals need to have a clear understanding of the new rules. It is expected that further information will be issued by CIC and Service Canada on the changes over the next while.
  • When hiring a TFW, determine whether the 4 year time cap will apply to that TFW. Also, review any current TFWs to see if the time cap is applicable to them going forward. As noted, this will consist of TFWs on CMO-based work permits in NOC B, C and D positions.
  • Transition TFWs to permanent resident status to avoid potential time cap problems.
  • Put in place internal policies and procedures to ensure that you continue to be compliant at all times with the rules and requirements.
  • If you are hiring a TFW, conduct a review to ensure that the terms and conditions of employment of current TFW employees have remained substantially the same over the last two years.
  • Carefully assess well in advance any changes to the terms of employment of a TFW, to determine if the changes may cause a breach of IRPA's Regulations. For LMO-based work permits, Service Canada may have to be informed of the changes. Depending on the type and degree of change, a new LMO or work permit may be required.
  • If you have TFWs covered by the 4 year time cap (especially those in NOC B occupations under an LMO-based work permit) track the time they are actually working in Canada as some gaps in work may not be held against the cumulative 4 year time cap.
  • Make sure you use the new LMO application forms on applications made after April 1, 2011.
  • Companies involved in mergers and acquisitions involving Canadian entities that have TFW employees will want to make sure as part of any due diligence process that the target company is compliant with IRPA's requirements. Otherwise, there may be a risk of inheriting a compliance problem which may then affect the acquiring company's own ability to hire TFWs.

Conclusion

The amendments to the Regulations reflect the trend over the last few years to tighten up Canada's Temporary Foreign Worker Program, and to place more emphasis on employer compliance and enforcement mechanisms. However, the good news is that Canada's Temporary Foreign Worker Program remains a useful way for Canadian employers to access key skilled TFWs. As well, with advance planning, Canadian employers should be able to transition most TFWs they hire to permanent resident status, which will avoid any potential time cap issue.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions