On October 9, 2009, the Citizenship and Immigration Canada (CIC) website published a News Release entitled “Minister Kenney proposes improvements to the Temporary Foreign Worker Program”. These improvements, which would come by way of amendments to the Immigration and Refugee Protection Regulations (the “Regulations”), were outlined in a Regulatory Impact Statement Analysis that was published in the Canada Gazette on October 10, 2009.
Whether or not these proposed changes are, indeed, improvements to the program are debatable.
The proposed regulatory amendments to the Temporary Foreign Worker Program, which will likely be implemented in 2010, are aimed at providing increased protection to temporary foreign workers and ensuring “that the program is fair and equitable”. These proposed changes include, among other things:
Under the proposed changes, foreign workers will only be permitted to remain in Canada on the basis of a temporary work permit for a cumulative total of four years. After the cumulative four year total has been reached, the foreign worker must leave Canada and wait at least six years before he or she may reapply for a temporary work permit.
According to the Canadian government, these proposed changes reflect the purpose of the program, which is to address short-term labour market shortages. Temporary work permits, in other words, were designed to be temporary and not a means to solve long-term labour needs.
The genuineness of the job offer will be subject to greater scrutiny and assessment in the context of a new work permit application or a new request for a Labour Market Opinion (LMO). According to the Regulatory Impact Statement Analysis, the genuineness of the job offer would be assessed under the proposed amendments based on the following factors:
The genuineness assessment would apply to all offers of temporary employment in which an employer-specific work permit is required, which generally includes most work permits. The proposed regulations would not apply to open work permits, which are given in very specific situations and may be available to members of the live-in caregiver class who have completed the requisite two years of authorized employment, the spouses or common law partners of certain work permit holders, the spouses or common law partners of foreign students in Canada, sponsored family members in Canada, and destitute students in Canada.
In addition to greater scrutiny of the genuineness of the job offer in a new work permit application or request for a new LMO, employers’ compliance with the terms of previous offers of employment will also be assessed under the proposed amendments to the Regulations. Specifically, if the wages, working conditions and the occupations provided were, in fact, significantly different than what was agreed to in the offer of employment, then the employer would be deemed not genuine. As consequences of being deemed not to be a genuine employer, the employer is prohibited from hiring a temporary foreign worker for two years and would be included on a list of ineligible employers published on the CIC website.
To date, the proposed amendments do not provide a right of appeal or other mechanism through which employers may defend themselves from a claim by CIC that they are not genuine employers. Employers who are found to have failed to comply with Canada’s immigration rules and regulations will automatically find their names listed on the CIC website and banned from hiring other temporary foreign workers for two years.
While the proposed changes to the Regulations are aimed at providing greater protection to temporary foreign workers, it will likely have negative consequences for both temporary foreign workers and their employers alike. Employers must become more proactive and more vigilant with monitoring their staff and the way they hire temporary foreign workers. Temporary foreign workers must carefully calculate the number of years they work in Canada as to either avoid going over the four year cap or to ensure sufficient time to make the necessary immigration applications to change their status to a more permanent one. Without a doubt, if passed without further amendments for greater clarity, the proposed changes will likely result in a good amount of litigation to define or limit the impact those amendments would surely have on employers and the foreign nationals they employ.
Primero, Maria Margarita L.
(416) 972-9001, Ext. 206
clientservices@heydary.com
