Proposed regulatory changes amending the Canadian temporary foreign worker program

Canada
March 23 2010
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Citizenship and Immigration Canada (CIC), in cooperation with Human Resources and Skills Development Canada (HRSDC) and the Canada Border Services Agency (CBSA), has proposed amendments to the Immigration and Refugee Protection Regulations. Among the proposed regulations are four main regulatory changes that, if enacted, would dramatically alter the existing Temporary Foreign Worker Program (TFWP).

1. The TFWP would be amended to clarify the process for and establish the factors to be considered in assessing the genuineness of all offers of employment.

The proposed regulations provide a set of criteria by which immigration officers may assess the genuineness of an employment offer. The proposed regulations also clarify that genuineness will be assessed in all offers of temporary employment where an employer-specific work permit (as opposed to an open work permit) is required. Currently, there are no established factors by which an immigration officer may consider the genuineness of a temporary employment offer. However, before an officer can issue a work permit, he or she must be satisfied that there is an actual job opportunity for the applicant, that the employer is able to employ the applicant, and that the applicant is qualified and able to fill the proffered position.

Making a determination that a temporary employment offer is genuine will hinge on the following factors:

* Whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
* Whether the offer is consistent with the reasonable employment needs of the employer;
* Whether the terms of the offer are able to be reasonably fulfilled by the employer; and
* Consideration of the past compliance of the employer with federal or provincial laws that regulate employment in the province in which it is intended that the foreign national work.

2. Noncompliance would subject an employer to a two-year period of ineligibility to access the TFWP, as well as public notice of such ineligibility.

If it is determined that an offer of employment is not genuine (i.e., where an employer has been found to have provided significantly different wages, working conditions, or occupation than what was offered), the employer will be subject to a two-year bar from accessing the TFWP. Hence, the employer will be precluded from hiring any foreign nationals in Canada for a period of two years. In determining whether the bar will apply to a particular employer, the assessment would be undertaken at the time of the application or request and take into account any employment of temporary foreign workers in

the immediately preceding two years. In addition to being barred from use of the TFWP for the next two years, the employer’s name, address, and period of ineligibility to access the TFWP would be posted on CIC’s external website for public viewing. Please note that this determination of ineligibility will be made by the officer processing the application.

3. Work permits, with certain exceptions, would be issued for a maximum of four years in duration, followed by a period of six years in which the temporary foreign worker would not be authorized to work in Canada before a subsequent work permit could be issued.

Temporary work permits in Canada will only be issued for four years and will be truly “temporary” in nature. Once the fouryear maximum is reached, the foreign worker will be prohibited from seeking an extension or subsequent work authorization for a period of six years. The exception to this rule would be for foreign workers who perform work pursuant to an international agreement between Canada and one or more countries, such as NAFTA.

4. Established expiration dates for Labour Market Opinions (LMO)

According to the proposed regulations, HRSDC would be required to establish a period of time during which the LMO is in effect. The impact of such an expiration date would require employers to apply for a work permit for an employee within a specific time period or the employer would be required to request a new LMO.

Finally, these regulatory amendments would be applied prospectively; that is, they would apply only to those requests received by HRSDC and to applications received by CIC on or after the date on which the regulatory amendments come into force. It is expected that these regulatory amendments will come into force within the next six months.

Feds to introduce refugee-system reforms this week

CTV.ca News Staff

Date: Sun. Mar. 28 2010 12:48 PM ET

Ottawa will introduce new legislation this week to fix what it calls a broken refugee system that delays legitimate asylum claims while allowing bogus claimants to remain in Canada through a years-long appeals process.

Immigration Minister Jason Kenney said he will introduce a bill Tuesday that will offer faster protection for real refugees while scuttling the claims of those who use the refugee system to fast-track their way into Canada.

While he declined to reveal many specifics about the legislation, Kenney told CTV's Question Period that it will "streamline" the appeals process through which claimants who have been turned down by the Refugee Board endeavour to have their claims approved.

"It's a balanced reform," Kenney said in an interview from Montreal. "It will speed up the system and give faster protection to real refugees while sending the message to the bogus claimants that you're not going to be able to use the system in Canada anymore. We're going to remove you a whole lot more quickly."

According to Kenney, his ministry faces a backlog of 60,000 asylum claims, which has led to a 19-month waiting period for a hearing or a decision.

"That's terrible for real victims of persecution," Kenney said.

The minister said the slow-moving legal immigration system attracts false claimants who use the asylum system to "jump the queue" and gain entry to Canada "through the back door."

According to Kenney, 58 per cent of asylum claimants are found not to need protection and are either rejected by the Refugee Board, or withdraw their claims.

He pointed specifically to one "European democracy" that has become the number one source country for asylum claims, saying that 97 per cent of those who say they need protection withdraw or abandon their claims. Only three of 2,500 cases from that country that went before the Refugee Board last year were accepted, he said.

While Kenney did not name the country in question in Sunday's interview, earlier this month he said Hungary has become Canada's number one source country for refugee claims, at several hundred per month.

"This is telling me that Canada, with the highest number of asylum claims in the developed world, has become a destination of choice for false refugee claimants and it's simply burdening the system," Kenney said. "Each one of those claims can cost us as much as $50,000 and four-and-a-half years before they even exhaust all of the appeals under the current, totally dysfunctional system."

Kenney also said Sunday he will be introducing legislation later this spring to crack down on dishonest immigration consultants.

"We intend to come forward with legislative changes to crack down on the bogus, unscrupulous consultants and advisers who counsel people to commit fraud, who often take money and provide no services, and many of whom counsel immigrants looking for status in Canada to make false refugee claims."