Amended Regulations Drastically Affect Canadian Temporary Foreign Worker Program
At the beginning of the year, Citizenship and Immigration Canada (“CIC”),
in cooperation with Human Resources and Skills Development Canada (“HRSDC”)
and the Canada Border Services Agency (“CBSA”), proposed
dramatic amendments to the Immigration and Refugee Protection
Regulations. The final amendments were officially published on August 4,
2010, but will not take effect until April 1, 2011. Among the significant
regulatory changes are the following:
1. The Temporary Foreign Worker
Program (“TFWP”)
has been amended to clarify the process for and establish the factors to be
considered in assessing the genuineness of all offers of employment.
The new regulations provide a set of criteria by which immigration
officers may assess the genuineness of an employment offer. The amended
regulations also clarify that genuineness will be assessed in all offers of
temporary employment, Labour Market Opinion (“LMO”)
and LMO-exempt, 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 authenticity 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
hinges 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 will 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 occupational duties than what was represented in
the application), the employer will be subject to a two-year bar
from the ability to participate in 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. Thus, decisions affecting an
employer’s very ability to participate in the TFWP may be made according
to the discretion of one immigration officer.
3. Work permits, with certain exceptions, will be issued for a maximum of four years in duration, followed by
a period of four years in which the temporary foreign worker will 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 four year maximum is reached, the foreign worker will be
prohibited from seeking an extension or subsequent work authorization for a
period of four years. The exceptions to this rule are: (1) for foreign
workers who perform work pursuant to an international agreement between Canada and one
or more countries, such as NAFTA and (2) for foreign workers whose work will
create significant social, cultural, or economic benefits or opportunities for
to Canadians or permanent residents (intra-company transfers for non-NAFTA
nationals).
Once the four-year cap limit has been reached, the temporary foreign
worker will not be required to leave Canada,
provided that he/she can maintain legal status in Canada. However, he/she will
not be authorized to work until the subsequent four-year period has elapsed.
4. Established
expiration dates for LMOs
HRSDC will be required to establish a period of time during which an
LMO is in effect. The impact of such an expiration date will 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.
About The Author
Jean-Noël Ben Hamou, a licensed Canadian attorney and foreign legal consultant in New York in the Immigration Group of Seyfarth Shaw LLP, manages the Firm’s Outbound Business Immigration product lines. His practice focuses exclusively on Canadian and other foreign country immigration issues. Mr. Ben Hamou assists organizations with securing temporary and permanent statuses for their employees in Canada and in other foreign countries.
Mr. Ben Hamou is experienced in handling high-volume cases and negotiating agreements with senior foreign immigration officials at ports-of-entry, visa offices and pre-approval units to streamline the immigration process. He maintains extensive contacts with key senior immigration officials. He has conducted numerous conferences and seminars on Canadian business immigration in Canada and the U.S.
Michelle Gergerian is a senior member of the Immigration Practice Group of Seyfarth Shaw LLP. She has over ten years of experience in Immigration and Nationality Law, specializing in both temporary nonimmigrant visa petitions and permanent employment and family-based immigrant visa "green card" applications. Ms. Gergerian has also worked extensively on applications for United States citizenship.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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