As part of the Government of Canada's ongoing overhaul of
the foreign worker program, starting December 1, 2015, a new
Administrative Monetary Penalty (AMP) regime for violations of the
Immigration and Refugee Protection Regulations will come
into force. The new AMP regime will be administered by both
Employment and Social Development Canada (ESDC) and Citizenship and
Immigration Canada (CIC). The new AMP regime is broader in scope
than the current regime and includes significant new penalties for
The Old Regime
Under the old regime, only employers found to be non-compliant
with the Temporary Foreign Worker Program (TFWP) (i.e. where a
Labour Market Impact Assessment is required) are subject to
inspection and penalty. After an inspection, employers face a
two-year ban from hiring temporary foreign workers. The ban from
hiring temporary foreign workers does not vary depending on the
severity of the violation. Employers are not subject to a
The New AMP Regime
The new AMP regime applies to both the TFWP as well as the
International Mobility Program (IMP) (i.e. where a Labour Market
Impact Assessment is not required). After an inspection, employers
who are found to have violated the Immigration and Refugee
Protection Regulations face a ban from hiring temporary
foreign workers as well as a monetary penalty. The penalty imposed
on an employer will vary according to a points system. The points
system determines the penalty an employer must pay and the period
of ineligibility from the TFWP that will be imposed. The monetary
penalties range from zero to $100,000 per violation and the period
of ineligibility ranges from none to a permanent ban.
The points system is based on the following factors:
Type and Severity of
Violation. Employer non-compliance with the TFWP and the
IMP is divided into three types of offences: Type A, Type B, and
Type C. Type A violations are the least serious offenses and Type C
are the most serious. Type A violations may occur, for instance,
where the employer has failed to retain a document for the required
six year period. Type B violations may occur, for instance, where
the employer fails to provide "substantially the same, but not
less favourable, wages and working conditions" as outlined in
the foreign worker's offer of employment. Type C violations may
occur, for instance, where the employer has failed to provide a
workplace that is free from abuse.
An AMP applies to each contravention. This means
that where an employer has made the same Type A violation with
respect to a number of foreign workers, each contravention will be
treated separately. Not only will this impact the financial penalty
levied, it will also affect any future non-compliance penalties as
it will negatively impact the employer's compliance history.
Employers with a history of non-compliance will be subject to
Size of Business.
Employers are categorized as either a "small business" or
a "large business". An employer will be considered a
small business where it has fewer than 100 employees or less than
$5 million in annual gross revenues. In general, higher penalties
will be levied against large businesses.
Disclosure. If the employer voluntarily discloses
non-compliance, then ESDC/CIC, at an officer's discretion, may
reduce the number of points, depending on the circumstances.
Practical Tips for Employers
ESDC published an Employer Compliance Guide which contains best
practices for complying with the TFWP. All employers of foreign
workers in both the TWFP and the IMP should read this guide. The
Employer Compliance Guide can be found here.
Employers that hire foreign workers should also consider
conducting internal audits to determine whether they are in
compliance with the conditions of all LMIAs, or in the case of
LMIA-exempt workers, with the terms and conditions of employment
specified in the work permit application and employment contract.
Employers with LMIA-exempt workers where a Form IMM 5802
"Offer of Employment to a Foreign National Exempt from a
Labour Market Impact Assessment (LMIA)" has been filed with
CIC, must ensure that they are adhering to the terms and conditions
listed in that document.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
October 12th, 2016 - Immigration authorities conducted the 21st round of invitations under Express Entry in 2016 and 44th overall, inviting 1518 applicants for permanent residence with a lowest CRS score of 484.
October 19th, 2016 - Immigration authorities conducted the 22nd round of invitations under Express Entry in 2016 and 45th overall, inviting 1804 applicants for permanent residence, the largest number ever. The lowest CRS score was 475, a decline from the previous draw.
September 21st, 2016 - Immigration authorities conducted the 20th round of invitations under Express Entry in 2016 and 43rd overall, inviting 1288 applicants for permanent residence with a lowest CRS score of 483.
A unique feature of the new Canada express entry immigration system is that candidates can improve their comprehensive ranking score while in the express entry pool, without submitting a new application. We review important strategies.
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).