The past few years have presented challenging immigration law issues for both temporary foreign workers ("TFW") and the Canadian companies that employ them. While there has been increased media spotlight on the Temporary Foreign Worker Program ("TFWP"), new layers of regulation have made it more difficult for Canadian employers to source talent overseas, while some employers have difficulty identifying Canadians who possess specific skill sets or are willing to move to work locations in remote parts of the country.
Recent Changes to the TFW Program
Retail employers have arguably been particularly hard hit by these measures. For example, as of April 30, 2015, in accordance with a Ministerial Instruction, the TFWP will not process applications in the Retail Trade and Accommodation and Food Sectors for workers in certain occupations if those applications are for TFWs in an economic region with unemployment rates of six per cent or higher. Restricted occupations include food counter attendants, grocery clerks and store shelf stockers, cashiers, security guards, other attendants in accommodation and travel and light duty cleaners.
There is also a new cap on the number of "low-wage TFWs", defined as workers who earn less than the provincial or territorial median wage, which in most jurisdictions hovers around $20 per hour. As of July 1, 2015, the cap on low-wage workers is now either the current percentage of TFWs in low-wage positions, or 20%, whichever is less. On July 1, 2016, the limit will be further reduced to 10%.
Additional changes include a reduction in the standard duration of work permits from two years to one year, and the creation of a four-year maximum work period, after which a TFW must wait another four years before he or she can be granted a new work permit. The four-year cap was introduced on April 1, 2011 and became effective on April 1, 2015.
Navigating Changes to the TFW Program
Despite these challenges, employers requiring TFWs can strengthen their applications for the required Labour Market Impact Assessments (LMIAs) by, among other things:
- Carefully preparing job advertisements, choosing a job title and associated National Occupation Code (NOC) from the list provided by Service Canada, and indicating the areas of expertise required;
- Setting reasonable requirements for positions;
- Providing creative and detailed plans for transitioning from TFWs to Canadian employees, to address how positions will be filled by Canadians in the future;
- Ensuring that all information in the transition plan is kept up to date and adhered to;
- Providing explanations as to the need for TFWs for each particular situation and providing additional context that may not be apparent in the job description; and
Obtaining support letters from industry groups or associations.
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