Background: Employer Compliance Regime
Canadian work permits which are exempt from Labour Market Impact Assessments (LMIAs), such as the popular Intra-Company Transferee or NAFTA Professionals sub-categories, have been the focus on increased compliance measures, under both the former Conservative government and continuing with the current Liberal government. Some of the measures already introduced include the Employer Compliance fee, increased workplace inspections, and the more narrow definition of "specialized knowledge", to name a few.
Program Delivery Update (PDU) – August 29, 2016
On August 29, 2016, Immigration, Refugee and Citizenship Canada (IRCC) issued a Program Delivery Update (PDU) aimed at Canada Border Services Agency (CBSA) officers performing Immigration Secondary duties at Canadian Ports of Entry (POEs). The PDU aims to highlight the importance of enforcing existing employer compliance measures during the processing of LMIA-exempt work permits. More specifically, additional instructions have been provided to CBSA officers in ensuring thorough adherence to the compliance regime process.
Work permit applications can be made directly at the POE pursuant to section 198 of the Immigration and Refugee Protection Regulations (IRPR). The work permit issuance process at the POE now represents but a step in the overall employer compliance regime. A great level of attention is urged on behalf of CBSA officers during this step, as any errors or omissions will jeopardize the integrity of future inspections conducted by the CBSA or by Employment and Social Development Canada (ESDC) officers.
While the PDU details further technical information for CBSA officers, it does reflect the type of difficulties the agency has been facing when issuing such permits. Consequently, it also highlights the areas Canadian employers of Temporary Foreign Workers (TFWs) must pay special attention to, in order to avoid unnecessary complications and delays at POEs. At the same time, it highlights the continued technical limitations of the Employer Portal which have plagued the system since its inception.
One particular area of concern is the fact that work permit applicants can be held at the border, should the officer not enter Case Type 52 in GCMS. The case type field should be indicative of the LMIA confirmation exemption code associated with the particular work permit category. Thus, multiple case types exist based on the immigration category, however now they must be funnelled through the same one, in order for the Offer of Employment to link properly in GCMS. This technical limitation will impede TFWs and employers from determining under what category past work permits were issued, which could potentially lead to incorrect time cap calculations.
Additionally, it is now more important than ever to ensure that the Offer of Employment details (such as name and passport information) have been entered correctly. Any difference, such as a hyphen, or incorrect letter or number, will stop the validation, and consequently a work permit will not be issued. This is especially important for workers from Central Europe with non-Latin characters in their names, such as umlauts ( ¨ ) or vowels used in certain Northern European countries, such as Ć, Ř, and Ĺ. Employers must ensure that when filling out the Offer of Employment, they first translate the name according to IRCC's naming procedures. In cases where the information provided in the Offer does not match exactly the information presented during the application process, the officer has the power to refuse the work permit.
Lastly, the PDU provides additional instructions to officers regarding verification that the Offer meets the genuineness requirements set in section 200(5) of the IRPR. Specifically, POE officers are now expected to thoroughly analyze:
- whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, unless the offer is made for employment as a live-in caregiver;
- whether the offer is consistent with the reasonable employment needs of the employer;
- whether the terms of the offer are terms that the employer is reasonably able to fulfil; and
- the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.
Any sort of concern with respect to these factors, must be dealt with directly with the employer listed in the Offer of Employment. This once again highlights the importance of having a Canadian contact listed in the Offer, so that CBSA officers can clarify any concerns on the spot.
The August 29, 2016 PDU signals an intention by IRCC to increase scrutiny of applications made at Canadians POEs of employer-spcific and LMIA-exempt work permits. While the majority of the updated instructions in the PDU is technical in nature, it is quite noticeable how important the submission of Offers of Employment with correct and accurate information has become. Work permits can be refused should non-validations occur, for even such simple matters as hyphenated names or entering zero (0) instead of O in the passport number field. Additional delays can now also occur, as CBSA officers are expected to dedicate additional attention to genuineness requirements.
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.