Canada: Four Year Foreign Worker Limit Now In Force

On April 1st the first potential temporary foreign workers became subject to Citizenship and Immigration Canada's (CIC) new four-year cumulative "working in Canada" restriction.  The four-year rule was implemented on April 1, 2011, introducing a four-year cap on the cumulative period that a temporary foreign worker can remain working in Canada.  With some crucial exceptions, this rule captures all work experience in Canada, even if the temporary foreign worker may have changed jobs in the four-year period.  

After the cumulative four year period, the temporary foreign worker must leave Canada and wait for a minimum of four years outside Canada before being eligible again to apply for another Canadian work permit.  

The four-year rule applies primarily to lower skilled occupations in Canada.  

To determine whether a job is classified as high skilled or low skilled, CIC refers to the National Occupational Classification (NOC) as a resource. The NOC is a publication that classifies virtually all job positions in Canada under five skill categories: NOC 0, A, B, C and D levels.  NOC 0, A and B level positions are considered high skilled jobs while NOC C and D positions are considered semi or low skilled jobs.  

If you are a working in Canada in a NOC 0 (managerial) or NOC A (professional occupations) position then the four-year cap does not apply to you.  

Similarly, the rule does not apply to you if you are employed in Canada under an international agreement like the North American Free Trade Agreement or if you are working in a job that does not require a Labour Market Impact Assessment to be completed.  

The purpose of this rule was for CIC to dissuade temporary foreign workers from working and remaining in Canada indefinitely: "The Temporary Foreign Worker Program (TFWP) was established to address temporary labour and skills shortages in Canada. To prevent FNs who are working temporarily in Canada from losing ties with their country of origin due to prolonged periods of stay in Canada, and to encourage workers and employers to explore appropriate pathways to permanent residence, this regulation...establishes a maximum duration that a TFW can work in Canada."

With the first foreign workers being subject to the four-year rule, employers and foreign workers alike should look to their own circumstances to determine how the rule will affect them in the near future and to consider putting plans in place to transition affected foreign workers to permanent residence to avoid the four-year cap.  

The first issue to consider is whether, and then when, the four-year cap will affect you. It is significant to note that periods of unemployment do not count towards the four-year cap. For instance, periods of unemployment where you are in Canada between jobs and seeking new employment would not count towards the cap. Likewise, time not actually spent working in Canada due to medical leaves, maternity leaves or other authorized leave periods will not be counted.  Also, if you travel back and forth to Canada as part of your work, then only the time actually spent working in Canada will count towards the cap.  

Once you establish when the four-year cap will be applicable to your circumstances, you should seek advice on obtaining permanent residence in Canada if you wish to remain in Canada to continue your employment. It is advisable to start this determination process as early as possible. Many foreign workers already working in Canada may qualify for Canadian permanent residence under a variety of skilled immigration categories such as the Federal Skilled Worker (FSW) Class, Canadian Experience Class (CEC) and Federal Skilled Trades Class. These workers are strong candidates for permanent residence because they have already accumulated valuable Canadian work experience and shown that they can be productive members of Canadian society. Furthermore, foreign workers who do not have qualifying skilled work experience might be eligible for permanent residence through a Provincial Nominee Program (PNP) in their home province or territory.  

Clearly, the most obvious employees subject to this new rule are those working in NOC level B, C or D positions who have remained continuously in Canada.  Predicting when these rules will affect you is straightforward to ascertain in order to determine when you will need to begin taking steps towards permanent residence if you do not leave Canada or stop working in Canada for some time – when the four years are up the rules will apply to you!  

If you are determined to become a permanent resident of Canada you should begin preparations well before the application of the four-year cap. In the current immigration environment with the introduction of the Express Entry system and the selection of permanent residents based on merit, skilled applicants for permanent residence must prepare early on during their stay in Canada to set themselves up for success in the permanent residence process. These preparations include developing fluency in one of Canada's official languages and securing full-time, permanent job offers from your current employer to support your permanent residence application. With the four-year cap now in full effect it is recommended that both employers and foreign workers obtain advice at the outset of the employment relationship to explore all options for permanent residence.

This article appeared in the April 15, 2015 issue of the Asian Pacific Post.

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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