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International Mobility Program Compliance Measures

In February of 2015, Immigration, Refugees, and Citizenship Canada (IRCC, formerly Citizenship and Immigration Canada) introduced provisions for review of employer compliance with the terms and conditions of temporary work permits issued under the International Mobility Program (i.e., work permit exempt from the Labour Market Impact Assessment or LMIA). These measures are similar to provisions introduced roughly one year prior in the Temporary Foreign Worker Program (i.e., work permits issued on the basis of a LMIA). The goal of compliance measures is to ensure that the terms and conditions that were proposed in an application for a work permit are upheld by the employer during the course of the employment of the foreign national in Canada. IRCC’s Case Management Branch is responsible for compliance review, but IRCC and Canada Border Services Agency (CBSA) officials may refer cases for examination.

On December 1 2015, Regulations allowing for the imposition of administrative penalties on non-compliant employers took effect. These allow for financial penalties ranging from $500 to $100,000, with a per-employer cap of $1,000,000 per year for cumulative fines. In addition, employers could be banned from applying for work permits for a period of a period of between one and ten years, although a lifetime ban can also be imposed in cases in which the offence is sufficiently serious.

The grounds for compliance review are (i) random audit, (ii) a reason to suspect non-compliance (e.g., referral from IRCC or CBSA official, or public complaint), or (iii) known non-compliance (i.e., compliance failure for one case could become grounds for compliance review of additional cases approved for an employer). At any time, the employer in the International Mobility Program must ensure that:

– It is actively engaged in the business in which the offer of employment is made;
– It is compliant with federal and provincial laws that regulate employment (including the recruitment of employees);
– It provides (or has provided) the employee with employment in the same occupation as set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same, but not less favourable, than those set out in the offer; and
– It makes reasonable efforts to provide a workplace that is free from abuse.

Factors that will likely be of most significance in the assessment of compliance are (1) the location of work, (2) the role filled by the foreign national (i.e., title and responsibilities), (3) the wage (including required overtime) and benefits received by the foreign national, and (4) the consistency of the foreign national’s qualifications with requirements of the position:

1. Did the work occur at the location stated in the application? Or, did the foreign national substantially perform work at alternate locations. In some cases, the nature of the employment involves travel to multiple locations by its nature, whereas other work will always occur at the same location. If movement from one location to another is needed, then this should be made clear in the application process, even if the employment will be fundamentally based out of one location.

2. Did the foreign national occupy the position that was stated in the application? For example, was one occupation (and associated responsibilities) stated in the application, but the foreign national effectively filled another role in the company?

3. In the process of a compliance filing, employers are asked to provide the Canadian dollar wage and overtime of the foreign national, or describe the alternate compensation scheme in place. An example of an alternate compensation scheme is one in which the foreign national remains on a foreign payroll while working in Canada. Employers should be careful that provincial overtime Regulations are adhered to even if these overtime provisions do not match in the foreign locale. Employers may also bear in mind that provinces generally have overtime exemptions or variations for certain occupations and/or industries.

4. In the process of submitting the compliance filing, the employer must state the requirements of the position. It is foreseeable that the employment of a foreign national who does not meet the requirements could be grounds for a penalty. Realistically, however, this factor is more likely to cause refusal of the application at the time of its submission, rather than be grounds for a compliance penalty.

Date Posted: January 29, 2016 Posted In: International Mobility Program,Labour Mobility,Temporary Work Permits

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