On April 1, 2011, a number of significant changes to Canada's immigration laws and regulations respecting temporary foreign workers will come into effect. In order to ensure that no one is adversely impacted by these changes, it is important that all employers, HR professionals and foreign workers alike are fully educated and aware of these changes:
1. Four-Year Cap on Canadian Work Permits
Effective April 1, 2011, foreign nationals will only be permitted to hold a temporary work permit for a cumulative 4 years. After working in Canada for one or more periods totaling 4 years, the foreign national will be required to wait for at least 4 years before he or she may reapply for a work permit. Some exceptions to this rule will apply, including situations where:
The foreign national intends to perform work in Canada that would create or maintain significant social, cultural or economic benefits or opportunities to Canadian citizens or permanent residents.
The foreign national intends to perform work pursuant to an international agreement with Canada (such as the NAFTA, CCFTA, Canada-Peru Free Trade Agreement, GATS, etc.)
The foreign national is performing work in Canada while on a study permit
2. Two-Year Ban for Non-Compliant Employers
In an effort to protect the rights of foreign workers in Canada, the new regulations create the imposition of a 2-year ban on the hiring of any temporary foreign workers for employers who have failed to substantially provide the same wages, working conditions, or occupation offered to any work permit holder in the past two years. Commencing April 1, 2011, such compliance will be assessed at the time an application for an LMO or work permit is made and will consider the employment of any foreign worker in the company's employ in the 2 years prior. Any employers found to have been non-compliant will not only be subject to this 2-year ban, but will also have their name, address and period of ban published on a publicly available list.
3. Assessing the Genuineness of an Offer of Employment
These new regulations additionally implement a number of factors to be considered by officers in assessing the genuineness of employment offers before approving both Labour Market Opinions and LMO-exempt work permits. Specifically, the officer will look to the nature of the employer's business, the level of activity of the company's operations, the terms of the offer of employment, and the employer's ability to meet those terms (including payment of wages offered).
4. Additional Requirements for Employers of Live-In Caregivers
The regulations further establish certain employer-related requirements for live-in caregiver work permit applications, including the employer's need for a live-in caregiver, the provision of adequate accommodation, and his/her ability to pay the wages offered.
5. Limited Validity of Labour Market Opinions
Following HRSDC's announcement in May 2009 that all Labour Market Opinions would be issued with a limited validity of 6 months, the Canadian Government's new changes make it required by law for all Labour Market Opinions to have an expiry date. If the foreign national does not apply for a work permit within that timeframe, a new Labour Market Opinion will need to be obtained by the employer.