Sunday, April 10, 2011

Changes Announced for the Temporary Foreign Worker Program

New rules to strengthen Canada’s Temporary Foreign Worker Program came into effect on April 1, 2011. Citizenship and Immigration Canada (CIC) and Human Resources and Skills Development Canada (HRSDC) will be making significant changes to the current procedures impacting both foreign workers and Canadian employers.

As a general rule, the Temporary Foreign Worker Program allows employers to hire foreign workers when sufficient numbers of Canadian workers are not readily available. A Canadian employer who wants to hire a foreign worker may be required to apply to HRSDC for a Labour Market Opinion (LMO). An LMO is a document that HRSDC issues to employers confirming that hiring a foreign worker for a particular job will have a positive or neutral impact on Canadian workers. Employers must usually prove that they made reasonable efforts to hire a Canadian citizen or Permanent Resident before they offer the job to the foreign worker. In addition, Canadian employers must offer wages and working conditions to foreign workers that are consistent with standards for Canadian workers in their region.

With a genuine job offer and a positive LMO, the temporary foreign worker can apply for a work permit. It is important to note that some work permits do not require an LMO, such as Intra-Company work permits and work permits obtained under international agreements (eg. NAFTA).

To ensure that temporary foreign workers are protected while they are in Canada, CIC and HRSDC will be making the following changes to the Temporary Foreign Worker Program, which will affect those applying for LMO-based work permits and LMO-exempt work permits:

Genuineness of the Job Offer

To protect foreign workers and prospective immigrants from fraudulent job offers, CIC and HRSDC will be establishing additional criteria for determining whether a job offer is genuine, including job offers extended to Live-In Caregivers. They will be assessing:
  • The terms of the job offer (including the wages offered) and if the employer can reasonably fulfill those terms;
  • If the job offer is consistent with the employer’s labour needs;
  • If the employer previously complied with provincial and federal laws regulating employment or recruiting of workers.
Ban for Non-Compliant Employers

If a Canadian employer is found to be in violation of the regulations, the employer will be banned from hiring any foreign workers for two years. Employers can also receive the two year ban if they fail to fulfill the conditions given in the LMO and in the job offer. These non-compliant employers will have their name and address published on a list available to the public.

According to Immigration Attorney David Cohen, “Employers will want to get this right as the government has indicated that the consequences of non-compliance will be severe. Misinterpreting the new regulations may result in the employer being banned from hiring foreign workers for two years which can negatively impact a company’s brand and ability to meet staffing needs. The risks inherent in these consequences underscore the need for companies to secure professional legal representation to make sure that they comply with the new regulations.”

Maximum of Four Years for Canadian Work Permits

CIC will be limiting the number of years a foreign worker is permitted to hold a Canadian temporary work permit. A foreign worker will only be permitted to work in Canada for a total of four years. Once the four years has ended, the foreign worker will be required to wait at least four years before reapplying for a work permit. Certain workers will be exempt from this new rule:
  • Foreign workers who are working in Canada on a study permit;
  • Foreign workers who are working under an international agreement with Canada (eg. NAFTA, GATS, etc.); and
  • Foreign workers who are working in a Canadian job that creates or maintains significant cultural, economic, or social benefits for Canadian citizens or permanent residents.
Foreign workers also have the option of applying for Canadian Permanent Residency before or after their four years of Canadian employment have ended.
Source:Canada Immigration Newsletter.