Canada: New Employer Compliance Requirements Take Effect Soon

Image by Shaun Merritt via FlickrEmployers should be prepared for new restrictions on the Temporary Foreign Worker Program taking effect April 1, 2011. Employers will be required to demonstrate past compliance with program rules and commitments in order to participate in the program. Further, some foreign workers will be subject to a four-year limit on employment in Canada.
Citizenship and Immigration Canada (CIC) will introduce new restrictions for the Temporary Foreign Worker Program (TFWP) effective April 1, 2011. Employers will be required to demonstrate their past compliance with program rules and commitments, and risk suspension from the TFWP for past program violations. In addition, some foreign nationals will be subject to a four-year limit on the time they can work in Canada under the TFWP.
New Compliance Requirements for Employers

Effective April 1, 2011, employers seeking to hire foreign workers will have their compliance with TFWP requirements over the preceding two years assessed. CIC will examine whether a sponsoring employer has provided its TFWP workers with wages, working conditions and an occupation that were substantially the same as the terms and conditions of the job offer that supported the work permit application.
An employer who does not meet the terms and conditions of the job offer may be subject to a two-year probationary period during which it may not hire a foreign worker under the program, unless the employer can show its earlier noncompliance was justified. Acceptable justifications to excuse noncompliance can include:

• A change in federal or provincial laws;
• A change in the applicable collective bargaining agreements;
• A good faith error in interpretation by the employer concerning its obligations to the foreign worker, so long as the employer subsequently provided compensation or made sufficient attempts to do so to all foreign workers who were affected by the error;
• An unintentional accounting or administrative error made by the employer, so long as the employer subsequently provided compensation or made sufficient attempts to do so to all foreign workers who were affected by the error;
• If the employer implemented measures that did not disproportionately affect foreign workers in response to dramatic economic changes directly affecting the employer, or
• Similar or related circumstances.

Citizenship and Immigration Canada will also maintain a public list of noncompliant employers on its website.
Though these new regulations do not take effect until April 1, they will apply to employers retroactively. As such, employers should review all work permits obtained on or after April 1, 2009 to ensure that the wages, working conditions and occupation have remained substantially the same as disclosed in the employer’s original offers of employment. If necessary, remedial action must be taken by the employer to ensure compliance with the regulations.
Four-Year Employment Limit for Some Work Permit Holders

The new TFWP rules will limit some work permit holders to a cumulative maximum period of four years of work in Canada. Once the four-year cap is reached, these individuals will not be eligible to apply for another work permit for a period of four years. However, the new cap will not apply to certain workers who enter in a category that is exempt from the Labour Market Opinion (LMO) requirement. This includes foreign nationals holding work permits that are issued pursuant to an international trade treaty, such as NAFTA or the General Agreement on Trade in Services (GATS), or those holding positions that are exempt from LMO requirements because they create or maintain significant benefits for Canadians (such as intra-company transferees, among others).
Note that the four-year limit applies to employment authorization. It does not limit a foreign national’s stay in Canada to four years. In theory, those subject to the four-year work limit may be eligible to obtain another form of immigration status, such as student or dependent status, if they qualify. However, employers should still plan ahead and explore options for permanent residence for those foreign employees who may be subject to the four-year cap.

Source: Fragomen

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Deal to smooth firms’ access to overseas workers

Image via WikipediaOttawa, N.S. agreement does away with market survey
By DAVID JACKSON and EVA HOARE Staff Reporters
Wed, Feb 2 - 4:55 AM

Companies that may need overseas workers for big projects will have an easier time bringing them in under an agreement the province will sign with Ottawa.
Employers wanting to bring in temporary foreign workers now need a federal labour market opinion from Service Canada that says they’ve exhausted efforts to hire qualified Canadians or permanent residents and must look elsewhere.
Elizabeth Mills, executive director of the province’s Office of Immigration, said the new agreement will allow the province to write to Citizenship and Immigration Canada in support of the employer, allowing the employer to skip the step of the labour market opinion.
"In certain circumstances where the province . . . sees that an employer needs workers in a particular big project or economic development initiative, then we will write a letter of support requesting a temporary work permit be issued for a worker or workers in that area," Mills said Tuesday.
"We may also support a group of foreign nationals in a specific occupation. So, for example, if there’s a big project going on, the company is unable to hire people locally, and they need a group of workers to come over with specialized skills, then we can write a letter of support for that."
Another aspect of the agreement will grant a work permit to the spouse and working-age children of the foreign worker.
A third new measure deals with Canadians or permanent residents who marry foreign nationals. Mills said the foreign nationals will be able to get a work permit while temporary residents and waiting for their applications for permanent residence is being processed.
She said about 2,500 foreign workers come to the province annually.
Mills said the changes on temporary foreign workers come out of a 2007 agreement on immigration that the province signed with Ottawa. An annex to that agreement was to cover that group.
She said most other provinces have, or are working on, similar agreements with Ottawa.
Mills said she isn’t sure when the agreement will be signed, but hopes that will happen before the next federal election.
Well-known Nova Scotia immigration lawyer Lee Cohen lauded the move as a good step toward strengthening the economy because there are shortages of various levels of skilled workers.
"What was happening was Nova Scotia was bringing into the province more and more highly skilled people while positions for lesser skilled people were not being filled," Cohen said in an interview Tuesday.
"So instead of only seeking higher skilled workers, they wanted to seek workers in demand," he said. "It’s a fantastic thing. It’s a great step in the right direction."
Cohen said Nova Scotia has too many people who are highly educated but are being told they’re overqualified for positions, and conversely, not enough people to fill other openings, such as those found in the hospitality industry. "Hotels are finding it impossible to get room attendants."
The Halifax lawyer said he’d been told a few months ago that this change was underway, and hopes the next level to be addressed will be that of the entrepreneur.
"What I’ve been waiting for from these guys for such a long time is some kind of entrepreneurial category."
( djackson@herald.ca)