Source: Lexology.com
March 16 2010
In light of the recent rise in the number of temporary foreign workers in Canada, together with increased concerns for the fair treatment of foreign workers, the Government of Canada has proposed certain changes to the Immigration and Refugee Protection Regulations (IRPR) to address the treatment and hiring of temporary foreign workers. Specifically, the Government is proposing the following:
1. Placing a limit on the number of years a foreign national may hold a work permit
2. Imposing a ban on the ability to hire a foreign worker for any company or third-party agent who has failed to comply with Canada’s immigration rules and regulations
3. Establishing a set of factors to assess the genuineness of an offer of employment
4. Requiring all Labour Market Opinions to have time-specified and limited validity.
Four-Year Cap on Canadian Work Permits
Under the proposed regulations, foreign nationals will only be permitted to hold a temporary work permit for a cumulative 4 years. After 4 years, the foreign national will be required to wait for at least 6 years before he or she may reapply for a work permit. Some exceptions to this rule will apply, including work permits that have been granted pursuant to the NAFTA or other international agreement. While CIC recognizes that there is a continued need to hire foreign workers in Canada, this change is proposed to emphasize to both workers and employers alike that temporary work permits are designed to be just that – temporary. By placing a limit on the number of years a foreign worker may hold a temporary work permit, CIC seeks to encourage the use of other programs and pathways (such as the Canadian Experience Class) to permanent residence, when available.
Two-Year Ban for Non-Compliant Employers
In an effort to protect the rights of foreign workers in Canada, the Canadian Government proposes the imposition of a 2-year ban on the hiring of any temporary foreign workers for employers who have failed to provide the wages, working conditions, or occupation offered to any work permit holder in the past two years. Currently, employers may be subject to a fine of up to $50,000 or up to 2 years’ imprisonment for hiring a foreign national in a capacity in which he/she is not authorized to work. The proposed regulations will not only implement a ban on hiring future foreign nationals, but Immigration will also create a list to be published with the names, addresses and period of ineligibility of employers who are subject to this ban.
Assessing the Genuineness of an Offer of Employment
These new regulations additionally propose 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).
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 proposed changes will 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 employee.
These changes have been proposed by Citizenship and Immigration Canada, in collaboration with Canada Border and Services Agency and Human Resources and Skills Development Canada. While they have not come into force yet, they provide an accurate insight of what we may expect in the near future.
This document has been created for informational purposes only and does not contain a full analysis of the law, nor does it constitute a legal opinion of the Bomza Law Group.
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