Revisions to Canada’s Temporary Foreign Worker Program

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Recent controversy over one of Canada’s largest banks’ inappropriate use of the temporary foreign worker program is having further fallout. Yesterday, Canada’s  Minister of Human Resources and Skills Development and of Citizenship, Immigration and Multiculturalism yesterday announced the following immediate and future modifications to the program:

  • Immediate removal of previously implemented provisions allowing wage flexibility, thereby requiring all employers to pay foreign workers at published prevailing wages;
  • Immediate temporary suspension of the Accelerated Labour Market Opinion application stream;
  • Increase the Government of Canada’s authority to suspend and revoke work permits and Labour Market Opinions (LMOs) in cases of abuse;
  • Add questions to LMO application forms to detect outsourcing of Canadian jobs;
  • Ensure that employers who rely on foreign workers have a training plan to transition to Canadian workers;
  • Introduce application fees for employers for the processing of LMOs and increase the fees for work permits; and
  • Allow English and French as the only languages that can be used as a job requirement in a LMO application.

These are dramatic changes that will affect all employers and foreign workers.

Revisions to Recruiting Requirements for Labour Market Opinions

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Human Resources and Skills Development Canada (HRSDC) has recently revised its recruiting requirements for all occupations. This revisions falls close on the heels of a recent controversy involving this agency and one of Canada’s biggest banks (acting in its capacity as one of Canada’s larger employers).

At this time, the revisions serve to more precisely define methods of recruiting that are permissible. The provision that employers may recruit in a manner consistent with practices in its industry have been amended with specific requirements of placement of ads as follows:

  • on recognized Internet employment sites such as Monster, Workopolis (All skill classifications);
  • on the website of a professional association (NOC 0, A);
  • in national newspapers, professional journals or newsletters (NOC 0, A);

  • in local and regional newspapers, newsletters (NOC B, C, D);

  • in ethnic newspapers and Internet sites (NOC B, C, D);

  • in local stores, places of worship, community resource centres (NOC B, C, D);

  • in local and regional employment centres (NOC B, C, D).

Depending on the classification of the occupation, placement of ads on government job sites such as Service Canada’s Job Bank remain allowable alternatives or supplemental modes of recruiting. Removed, therefore, is the possibility of using methods such as recruiting agencies, social media, corporate web sites, and other common methods of recruiting. Also, there will likely be some debate as to what constitutes a recognized internet employment site, as employers now commonly use classified ad sites as part of their efforts.

Proposed Changes to Temporary Foreign Worker Program

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Naomi Alboim, an adjunct professor at Queen’s University’s School of Policy Studies, recently stated that Canada is experiencing ‘unprecedented’ changes to immigration policy, and there is more recent evidence to support this. On the heels of the 2011 revision to the legislation governing temporary foreign workers in Canada, the Minister has recently announced that upcoming rules will make the process of employing foreign workers more complex.

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Inserted into the 2013 Federal Budget are modifications to certain immigration programs, including a section on “Reforming the Temporary Foreign Worker Program.” The immigration department looks to change the present requirements by:

1. Increasing the duration and scope of recruitment that Canadian employers must sometimes undertake prior to being able to obtain a temporary work permit for non-Canadians. There will certainly remain situations in which recruitment will not be mandatory, including situation-specific exemptions and international treaties.

2. Promoting the need to train Canadians to assume the roles of foreign workers over time. This could, of course, include those situations in which the foreign worker becomes a Canadian permanent resident following the issuance of a work permit.

3. Reducing the capacity to use language requirements as a requirement of an occupation in order to facilitate the issuance of a work permit.

4. Introduction of application fees for filing a Labour Market Opinion request.

The proposals are all reasonable and will not hurt employers, Canadian or foreign, in those cases in which the admission of temporary foreign workers are genuinely needed. These sorts of changes, however, will put increased focus on ensuring that the strongest possible case is pursed from the outset and presented at the time of submission.

Canadian Visa Office Changes

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The visa and immigration sections of the Canadian Embassy in Caracas have closed. Nationals and legal residents of Venezuela will now be required to submit work permit applications to the Canadian Embassy in Mexico City. Current average historical delays for work permit applications at that office are 1 month.

In the USA, all work permit applications are now being processed in New York City. The Canadian Consulate in Los Angeles will no longer process work permits, and will be responsible for all study permit applications in the USA. Current average historical delays for work permit applications at the New York City office are 2 months.

Bridging Work Permits for Successful Economic Class Applicants

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Citizenship and Immigration Canada has introduced provisions allowing for the issuance of bridging open work permits to foreign workers in Canada (i.e., holding a valid work permit) who have been approved in certain economic class applications. The eligible economic class category and the criteria for approval are as follows:

Federal Skilled Worker Program: the status of the  “Ministerial Instructions” criteria has been stated by CIC as “Met”, or a positive Final Determination of Eligibility letter/ e-mail has been issued to the applicant.

Provincial Nominee Program: the status of the “Eligibility EC-QC/PNP” is set to “Passed” or the Acknowledgment of Receipt been issued by mail or email by the Centralized Intake Office (CIO).

Canadian Experience Class: the status of the “Eligibility CEC” decision is set to “Passed” or the Acknowledgement of Receipt has been mailed or emailed from CIO.

Federal Skilled Trades Program: the Acknowledgement of Receipt has been mailed or emailed from CIO.

Eligible candidates may submit an inland change of terms application to the Case Processing Centre in Vegreville, requesting an open work permit. Such permits will be valid for one year. Renewal applications are possible, but the expectation is that the economic class permanent resident application would be completed by the end of that one year.

Work Permit Holders Eligible for Permanent Resident Status Sooner

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Temporary foreign workers with one year of experience in high skilled occupations (i.e., National Occupational Classification 0, A, or B) will soon be eligible to apply for permanent resident status in the Canadian Experience Class (CEC) more quickly. Effective January 02, 2013, those who have 12 months of work experience in a skilled occupation while holding a valid work permit will become eligible in the CEC’s experience stream. This is being reduced from the previous 24 months that was required for candidates in this stream.

The changes to the CEC program also affects experience requirements for foreign graduates from a Canadian post-secondary institution, permitting such experience within the previous 36 months, as opposed to the previous 24. Overall, these changes represent increased focus by the current immigration Minister on the admission of those with demonstrated experience or credentials from within Canada.

The CEC has advantages over other permanent resident programs, which include an absence of fixed quotas and the lack on ongoing reliance on valid work permits or support from a Canadian employer.

Province/Territory-specific open work permits for nominated foreign nationals

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As part of the Federal Skilled Worker Backlog Reduction Pilot, Citizenship and Immigration Canada has permitted provinces and territories to nominate candidates based on work experience from existing backlogs. These are individuals who do not have existing offers of work from Canadian employers.

The Canadian provinces and territories have requested a mechanism for issuance of open work permits to the candidates that they nominate, that would allow for faster entry to Canada while permanent resident processing is under-way. In an effort to respond to labour market needs, CIC is allowing nominated foreign nationals to apply for one of up to 1,500 province-specific open work permits (i.e., not specific to an occupation and not requiring a job offer in advance).

These work permits may be granted for a duration of up to two years, and are not eligible for renewal thereafter. The intent is for the candidate to have permanent resident status in Canada by the end of this validity.

The program is open only to selected foreign nationals with a letter of support from the nominating province. A Labour Market Opinion will not be required in these cases, which can be processed through the normal avenues (i.e., visa office abroad, port of entry when permitted, and inland).

Electronic Travel Authorization for Visa Exempt Travellors

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The Government of Canada has tabled a bill which would include provisions requiring all visa exempt nationals, other than citizens of the USA, to complete an electronic travel authorization prior to being eligible to board a flight to Canada. At present, such individuals may appear at the port of entry without seeking any prior admission from the Canadian government, and in many of these cases may seek work permits or business visitor status at such time as well.

Being called a simplified electronic visa, the system – which is expected to have a fee associated with submission – is intended to screen inadmissible persons prior to their arrival at a Canadian port of entry. Such inadmissibility may include those with criminal records, those on no-fly lists, and filed refugee claimants. Results are expected to take a few minutes to receive, and these would be printed for presentation to the airlines and Canadian officials.

The goal of the system is to improve the efficiency of admission of eligible travelers at Canadian ports of entries by reducing the appearance of those who are not eligible for entry. Critics are concerned about questions that would be asked as part of the application that may be an invasion of privacy, but other countries such as Australia and the USA presently have similar systems that have been operational for some time.

New Temporary Resident Visa Requirements

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Citizenship and Immigration Canada has imposed Temporary Resident Visa (TRV, also referred to as a visitor visa) requirements for nationals of Botswana, Namibia, St. Lucia, St. Vincent and the Grenadines, and Swaziland. Citizens of these countries must now apply to the responsible  visa office in advance of travel in order to be eligible to appear at a Canadian port of entry.

This means that work permits must also be sought at a visa office prior to travel to Canada. Eligible TRV exempt nationals can commonly apply for work permits at the port of entry while travelling into Canada. The imposition of the TRV requirements in these cases means that this will not be possible for nationals of these countries. The most significant impact of this is to the timing of such applications. Whereas a port of entry case can be concluded in a matter of hours if clear and complete, a visa office application will require several weeks at a minimum, and possibly months.

Agricultural Stream Labour Market Opinions

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Human Resources and Skills Development Canada today announced changes to the Agricultural Stream of the Pilot Project for Occupations Requiring Lower Levels of Formal Training. The program, now referred to simply as the Agricultural Stream, was formerly limited to lower skilled (NOC C, D) primary agricultural occupations in specific commodities (see below), the program has been expanded to now include occupations of any skill classification.

Other than specific exclusions to certain occupations (i.e., agronomists, agricultural economists, landscape architecture, marketing activities of commission merchants and co-operative associations, provision of feed lot services, preparation of vegetable fibres for textile use, service activities to promote commercial hunting and trapping, veterinary activities), Canadian employers seeking to hire foreign workers in any NOC classification (i.e., NOC 0, A, B, C, D) may now opt to use the Agricultural Stream in addition to the Stream for Higher Skilled Occupations and the Stream for Occupations Requiring Lower Levels of Formal training, as applicable. As the prevailing wage and advertising requirements may differ between these programs, proper selection could offer an advantage to such employers.

The following commodities remain eligible in the Agricultural Stream at present:

  • apiary products
  • fruits, vegetables (excluding legumes), flowers, Christmas trees (including on-farm canning/processing, greenhouses/nurseries)
  • pedigreed canola seed
  • sod
  • tobacco
  • bovine
  • dairy
  • duck
  • horse
  • mink
  • poultry
  • sheep
  • swine