On October 9, 2009, the Federal Government proposed major
changes to regulations pertaining to Canada's Temporary Foreign
Worker Program (the Program). These revisions are meant to
strengthen protection for temporary foreign workers (TFWs) to
ensure greater employer compliance with TFW employment agreements,
and to underscore that TFWs are meant to be in Canada only for a
limited duration to fill labour gaps. Here are some of the
highlights of the significant planned changes:
Genuineness of Employer Offers: The new regulations
would clarify the process and establish factors to be considered in
assessing the genuineness of all offers of employment. These
factors include whether the offer is made by an employer who is
actively engaged in the business in which the offer was made,
whether the offer is consistent with the needs of the employer,
whether the employer is able to fulfill the terms of the offer, and
past compliance of the Canadian employer. Examples of a breach of a
genuine offer might involve paying a TFW less than indicated in
immigration applications or failing to provide a TFW with adequate
accommodations, if that is a requirement of the immigration
Employer Eligibility Restrictions: Currently, there are
no enforceable provisions available to hold employers accountable
when they have been found to have provided significantly different
wages, working conditions or occupations than what was initially
offered to a TFW. Under the new regulations, if these breaches
occur, the employer will be banned from participating in the TFW
Program for a two-year period. The violating employer's name
and address will also be listed on Citizenship and Immigrations
Canada's website, along with the reasons for their
Maximum Time Periods for TFWs: Because the purpose of
the Program is to address temporary labour shortages, another
proposed change to the regulations will limit a TFW to only being
able to work in Canada for a combined term of four years. After
these four years have been exhausted, the TFW would not be
authorized to work in Canada for a period of at least six years
before they can return to Canada. There would be a few exceptions,
however, such as whether the work performed created significant
social, cultural or economic benefits for Canada, or whether the
work was being performed pursuant to an international agreement
(e.g. NAFTA). Employers will need to consider what their long-term
needs will be much sooner, and initiate the permanent residence
application process for their TFWs.
Live-in Caregivers: Added requirements for an employer
of a live-in caregiver include providing adequately furnished and
private accommodations in the household for a TFW, and the employer
demonstrating that he or she has sufficient financial resources to
pay the wages offered to the TFW. Live-in Caregivers will be denied
work permits in cases where the employer cannot prove they can
fulfill these requirements.
Labour Market Opinion Time Period: Under the proposed
regulations, Human Resources and Skills Development Canada (HRSDC)
will be required to state a time period during which their labour
market opinions will be in effect. Although these time periods were
often stated anyway, it will now become a legal requirement
outlined in the regulations.
Although the proposed regulations have not yet become law, it is
expected that they will come into force within the next two months,
subject to any additional revisions.
It is important for Canadian employers to be aware that even a
single violation can result in a ban that may impact their ability
to employ TFWs to assist their operations. Employers should
implement workplace measures to ensure full compliance with
immigration processes and policies. The Business Immigration Law
Group at Fraser Milner Casgrain LLP can assist you in developing a
compliance strategy as well as a plan for moving your TFW into the
permanent residence process as quickly as possible. We will keep
you updated on any significant developments involving these
proposed regulations. Feel free to contact us with any questions
you may have.
For further information, please view the following news release
from Citizenship and Immigration Canada:
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