Canadian government proposes changes to Canada's immigration regulations relating to temporary foreign workers.

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.

Canadian Immigration Options for Temporary Workers and International Students

Since 2008, the Canadian federal and provincial governments have had programs in place to make it easier for individuals working or studying in Canada to obtain Canadian permanent residency. The governments recognize that individuals currently living in Canada, contributing to Canadian society and to the economy are likely to be successful Canadian permanent residents. There are four categories under which a person working or studying in Canada can qualify for a Canadian permanent resident visa.

• Canadian Experience Class: Individuals with some proficiency in English or French who have an intention to live in Canada, outside of the province of Quebec may qualify if they have Canadian experience as a:

o Foreign student having obtained at least a 2 year diploma or degree from a post-secondary institution AND at least 12 months of full-time work experience in a skilled, managerial or professional occupation in Canada, on a valid work permit; OR

o Temporary Foreign Worker currently working or having worked within the last year in Canada for at least 24 months of full-time in a skilled, managerial or professional occupation in Canada, on a valid work permit.

• Quebec Experience Class (PEQ): An individual may qualify if they have intermediate level French proficiency and are a:

o Foreign student having obtained a 2 year diploma or degree from an educational institution recognized by the Quebec Ministry of Education, while on a valid study permit; OR

o Temporary foreign worker currently working in Quebec for at least 12 months in a skilled, managerial or professional occupation in the 24 months prior to their application, while on a valid work permit.

• Provincial Nomination Programs: all of the remaining provinces and two of the territories in Canada have programs where they nominate individuals who intend to settle in that province. These programs are largely dependent on the applicant obtaining a full-time permanent job offer in a skilled occupation within the province, or having study and/or work experience in that province. Generally the provinces proceed quite quickly to issue nomination certificates at which point Citizenship and Immigration Canada completes their assessment of the application.

o Provinces and territories with nomination programs: Alberta, Manitoba, Newfoundland, Ontario, Saskatchewan, British Columbia, New Brunswick, Nova Scotia, Prince Edward Island, Yukon & the Northwest Territories.

• Federal Skilled Worker Program: individuals who have legally resided in Canada for one year as a foreign student or as a temporary foreign worker are eligible for this program, without the requirement of one year of experience in one of the 38 eligible occupations. Individuals who meet this requirement will then be required to obtain 67/100 points based on six selection factors: education, work experience, official language proficiency, age, arranged employment and other adaptability factors.(http://www.cicnews.com/2010/04/canadian-immigration-options-temporary-workers-international-students-04771.html)

Source: The South Asia Mail