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Recent Changes to the Temporary Foreign Worker Program Helen Park May 30, 2013

Recent Changes to the Temporary Foreign Worker Program

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In this presentation, Helen Park discusses the Recent Changes to the Temporary Foreign Worker Program, topics include: Temporary Work Permits Labour Market Opinions LMO Based Work Permits Section 91 – Amendment to Immigration Act Practical Pointers – Work Permit Applications Why is immigration planning/compliance important?

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Page 1: Recent Changes to the Temporary Foreign Worker Program

Recent Changes to the Temporary Foreign Worker Program

Helen Park May 30, 2013

Page 2: Recent Changes to the Temporary Foreign Worker Program

Temporary Work Permits

May 30 2013 Dentons Canada LLP 2

• Immigration Regulations have been amended in the past couple of years with most recent changes announced on April 29, 2013

• Changes have focused on ensuring that Canadians/permanent residents are given opportunities for employment first, compliance to ensure protection for temporary foreign workers (TFWs) and limiting the duration of temporary employment in Canada

• Ensure transition to Canadian workers, minimize the potential for TFW exploitation and ensure the program is temporary

Page 3: Recent Changes to the Temporary Foreign Worker Program

Temporary Work Permits

May 30 2013 Dentons Canada LLP 3

• Suspension of the Accelerated – LMO (A-LMO) program which was implemented on April 25, 2012, for “trusted employers”

• Additional questions to be asked about outsourcing of positions/company’s services outside of Canada on LMO applications

• Cancelation of policy allowing for wage flexibility for LMOs allowing employers to pay foreign workers less than the published “prevailing wage” if employers are paying Canadians the lesser wage

Changes Announced on April 29, 2013

Page 4: Recent Changes to the Temporary Foreign Worker Program

Temporary Work Permits

May 30 2013 Dentons Canada LLP 4

• Ensuring employers have transition plans in place to hire Canadians for positions held by temporary foreign workers

• English and French are the only mandatory languages accepted for LMO applications

• Greater authority for the government to suspend or revoke work permits and LMOs if abuse of the foreign worker program

• Implementation of an application fee for LMOs and an increase in processing fees for work permits

Changes Announced on April 29, 2013

Page 5: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions / Work Permits

May 30 2013 Dentons Canada LLP 5

• Over the past couple of years, to increase employer monitoring, Service Canada and Immigration Canada have increased data collection, monitoring of foreign worker’s work conditions, and implemented capped work terms

• Priorities: • Tracking Employer Information • Genuineness of employment • Employer Compliance • Cumulative Duration of work permits

Page 6: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 6

• Database for history of each employer

• Signed statements required by employers confirming that they have and will abide by foreign worker program requirements

• Requiring copies of incorporation documents and business license for employers applying for initial LMO

Tracking Employer Information

Page 7: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 7

• Increased documentary requirements in determining employer genuineness

• Proof that employer is actively in business

• Offer must be within reasonable business needs of the employer

• Employer must be able to fulfill terms of offer made

• Employer must be able to show past compliance of LMO and work permit terms

Genuineness of Employment

Page 8: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 8

• Increased enforcement of regulations through Employer Compliance Reviews (ECR)

• Employers must demonstrate past compliance by proving they met substantially the same terms and conditions of employment as set out in previous LMO(s)

Employer Compliance

Page 9: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 9

• Employers must have substantially complied with the working conditions, wages and position/duties set out in the original offer of employment for each foreign worker employed by the employer

• This is retroactive going back 2 years

• If an employer is found not to have complied with the terms, there is an opportunity to provide “reasonable justifications”

Employer Compliance

Page 10: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 10

• Foreign worker is permitted to work in Canada for an accumulated total of 4 years regardless of category unless: • a period of 48 months has elapsed since the date that the TFW accumulated 4

years of work • the work was performed while enrolled in full-time studies in Canada • An exception applies to the TFW at the time of a new work permit application

Cumulative Duration – “Cap”

Page 11: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 11

• The following exceptions only become relevant when an application for a new work permit is made: • TFW holds a managerial (NOC 0) or professional (NOC A) level occupation • TFW has applied for PR and received a positive assessment from Immigration

Canada in accordance with: • CAQ – Quebec Skilled Worker • Provincial Nominee Program acceptance if a provincial nominee • Positive selection decision under Federal Skilled Worker Class • Positive selection under Canadian Experience Class

Cap Exceptions

Page 12: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 12

• TFW who is employed under International agreements such as NAFTA or other international agreements including SWAP or International Experience Canada; however, there is a limitation for further work permits if categories are changed as the time worked in Canada is still included in the cumulative total (example: intra-company transfer for 3 years, then switch to an LMO based work permit in NOC B position, TFW only would be able to obtain a further 1 year work permit and would then reach 4 year cap)

• Gaps in employment during the authorized duration of the work permit can be considered if gaps are for one consecutive month or more and must be tracked by the foreign worker (evidence, such as passport stamps should be recorded)

• Spouses and common law partners of TFW who are NOT NOC level A or O will not be permitted to apply for open spousal work permits beyond the 4 year cumulative duration

Cap Exceptions

Page 13: Recent Changes to the Temporary Foreign Worker Program

LMO Based Work Permits

May 30 2013 Dentons Canada LLP 13

• Wage and benefit information

• Each TFW’s name, address, telephone number, job title, detailed description and the location of work

• Expenses incurred (directly or indirectly) during a recruiting process (including proof of who was paid)

• Copy of LMO application, LMO and WP

• All contracts/agreements entered into with foreign workers and external recruiters

• Record keeping is a must to be able to successfully pass an ECR

• NOTE: if under ECR, all LMO applications submitted for the same employer will be place on hold while an ECR is conducted

What Records Should be Kept in case of Employer Compliance Review

Page 14: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions – Key Elements

May 30 2013 Dentons Canada LLP 14

• Level NOC O or A - posting on employment website such as monster.com, workopolis or Canada Job Bank (Work BC) OR conduct recruitment activities consistent with industry

• Secondary source highly recommended for all positions – regardless of level

• If NOC Level B,C or D, Canada Job Bank AND secondary source of advertising is required

• Minimum 14 calendar days for advertising within 3 months of submitting an LMO application

• Make sure advertising is consistent with LMO application and details are carefully documented

Advertising

Page 15: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 15

• Recommend attaching company job description to ensure consistency

• Check the NOC 2006 job description to ensure no inconsistencies – may want to list NOC code to ensure Service Canada looks at same NOC

Description of Duties

Page 16: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 16

• Critical to ensure that the foreign worker meets educational requirements listed on LMO and advertisement as well as the NOC

• If willing to accept work experience in lieu of education, this must be clearly specified and noted on the LMO and in the advertisement

Educational Requirements

Page 17: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 17

• Ensure that description of any specialized work experience that is important for the position is included

• Also include any occupational designations such as CA, CMA, CGA, RN, P. Eng

• This information should mirror advertising conducted

Work Experience Requirements

Page 18: Recent Changes to the Temporary Foreign Worker Program

Labour Market Opinions

May 30 2013 Dentons Canada LLP 18

• Generally must be equal to or higher than the average prevailing wage for the location of employment – www.workingincanada.gc.ca

• Also must include holiday pay as a percentage or number of days – confirm provincial employment standards

• This information should mirror advertising conducted

Wages & Benefits

Page 19: Recent Changes to the Temporary Foreign Worker Program

Section 91 – Amendments to Immigration Act

May 30 2013 Dentons Canada LLP 19

• Amendments made on June 30, 2011 provide that only licensed lawyers or licensed immigration consultants are permitted to assist in the preparation of immigration documentation for a fee (includes the specialists)

• Must disclose whether they have used the services of a paid representative in the preparation of immigration application

• specific offences with penalties for breaching provisions include significant fines and even possible imprisonment

Licensed lawyers / immigration consultants

Page 20: Recent Changes to the Temporary Foreign Worker Program

Practical Pointers – Work Permit Applications

May 30 2013 Dentons Canada LLP 20

• Things to watch out for: • Ineligibility due to criminal convictions or prior refusals • Entry visa requirements (Temporary Resident Visas) – changes more regularly

that you think – review each time • Immigration medical requirements for residence in certain countries – review

each time • Accompanying dependents • Changes in laws, policies or procedures

Page 21: Recent Changes to the Temporary Foreign Worker Program

Why is immigration planning/compliance important?

May 30 2013 Dentons Canada LLP 21

• Denial of immigration service (work permits/LMOs)

• Loss of valuable employees (4 year cap)

• Damage to image (“bad employer” list)

• Costly/time consuming Employer Compliance Reviews

• Exclusion/removal orders for foreign nationals

• Fines for employers (if engaged in unauthorized work)

• Careful to ensure HR specialists are NOT working in capacity of immigration consultants

Page 22: Recent Changes to the Temporary Foreign Worker Program

Thank You

Helen Park Associate (604) 648.6516 [email protected]

© 2013 Dentons. Dentons is an international legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidential information may be relevant. Please see dentons.com for Legal Notices

Page 23: Recent Changes to the Temporary Foreign Worker Program

The preceding presentation contains examples of the kinds of issues companies dealing with Temporary Foreign Worker Program could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.