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Amended Regulations Drastically Affect Canadian Temporary Foreign Worker Program

by Jean-Noel Ben Hamou and Michelle Gergerian

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-NoŽl Ben Hamou, a licensed Canadian attorney and foreign legal consultant in New York in the Immigration Group of Seyfarth Shaw LLP, manages the Firmís 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.