October 2, 2015 – Green and Spiegel has been advised that
increased compliance and enforcement of both the Temporary Foreign
Worker Program (TWFP) and the International Mobility Program (IMP)
is now underway.
While public attention has tended to focus on the TFWP,
employers should be aware that compliance and enforcement action
will affect both programs, and will also include enforcement of the
LMIA-exempt compliance form IMM5802.
The IMP includes those employees who are transferred to Canada
via Intra-Company Transfer as well as employees working in Canada
pursuant to free-trade agreements such as NAFTA. Form IMM5802 is
the new compliance form implemented in February 2015 requiring
employers of LMIA-exempt foreign nationals to make certain
attestations about their employee and pay a compliance fee.
As part of reforms to both programs announced earlier this year,
and in advance of the coming into force of a regime of
Administrative Monetary Penalties on December 1, 2015, Employment
and Social Development Canada (ESDC) has increased the use of both
compliance reviews and random inspections to ensure that employers
are complying with program requirements. ESDC has set a target of
conducting a compliance review, or an inspection, of 1 in 4
employers who use either the TWFP or the IMP.
Compliance reviews and inspections may cover all aspects of both
programs, including recruiting efforts, transition plans, wages,
job duties and working conditions, and any other information or
claims with respect to program eligibility or program
All employers of foreign national should take steps now to
ensure they are compliant with program requirements and to prepare
for a possible compliance review and/or inspection.
Compliance Best Practices
Per ESDC, employers should do the following:
Review all LMIA applications and supporting documentation
Keep copies of LMIA applications and all supporting
documentation for 6 years
Work only with authorized third-party representatives
Inform ESDC immediately of any errors on the LMIA and annexes
and keep track of when ESDC was informed
Regularly self-audit and immediately correct incidences of
Make a voluntary disclosure of any incidences of
Keep records of all exchanges with Service Canada
Keep well organized records relating to compliance with all
Contact ESDC in writing when considering any changes to LMIA,
including even slight changes to job duties and wages
Actively cooperate with ESDC during inspections
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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