Citizenship and Immigration Canada has removed the passport visa requirement for nationals of the Czech Republic. Such requests for removals of the visa requirements have been a component of the discussions regarding the Canada-EU Free Trade Agreement. For Czech nationals, this means that many types of work permit applications may now be processed at a Canadian port of entry, in addition to via visa offices abroad.
Foreign workers (i.e., holding a valid work permit) with one year of experience in a high skill occupation in Canada can seek Canadian permanent resident status in the Canadian Experience Class (CEC). Citizenship and Immigration Canada has announced a number of changes to this program that are summarized as follows:
1. Caps: A maximum of 12,000 CEC applications annually. There were previously no caps or quotas in this category. The first year of caps commences on November 09 2013 and ends on October 31 2014.
2. For all skill level B occupations, there is a sub-cap of 200 applications (per occupation). There is no such sub-cap for occupations at skill levels 0 or A.
3. The following occupations are no longer eligible to apply in the CEC:
- Administrative officers
- Administrative assistants
- Accounting technicians and bookkeepers
- Retail sales supervisors
- Food service supervisors
The speculation is that these occupations reflect an unduly high quantity of candidates that have sought admission in the CEC pursuant to LMOs granted (especially in the now-suspended Accelerated Program) to marginal skilled occupations in the province of Alberta.
A start-up business class pilot program has been created to attract entrepreneurial applicants for permanent resident status. The program is fundamentally based on having the support of a designated Canadian investment group or business incubator, although other statutory requirements exist.
Temporary work permits may be issued cases in which the candidate intends to reside outside of the province of Quebec, and in which the designated investment group or incubator documents both that a candidate is essential and that there are urgent business requirements that mandate such admission. The application process mimics that of other LMO exempt work permits: applicants that are passport-visa and medical-examination exempt may apply for the work permit at a port of entry or visa office; others must apply at a visa office (including online submissions). Spouses or common-law partners of eligible candidates will be able to seek their own open work permits for the same duration as the principal foreign worker’s permit.
Canadian Employers seeking temporary foreign workers through Labour Market Opinion (LMO) applications have seen a lot of changes over the past year. In April we saw cancellation of the Accelerated program, reduced flexibility, and increased power of the government to monitor and cancel work permits and/or LMOs. This was followed in August be the largest change to the program in many years, including increases to advertising requirements, implementation of a processing fee, and more.
In recent months, the appearance is that the changes have continued to take place internally, in a way that is not so outwardly apparent and not announced or published by the government. On July 15, 2013 Jason Kenney became the Minister of Employment and Social Development and Minister for Multiculturalism, leaving his former post as Minister of Citizenship and Immigration. Many are aware of the many, many changes that took place within Citizenship and Immigration Canada during his tenure, and it is apparent that the same is now happening within Service Canada, responsible for the processing of the LMO applications.
Communications with Service Canada reveal that there is increasing scrutiny of applications, as well as an effort to harmonize processing methodologies nationally (those familiar with the LMO process may have lamented about the dramatic differences in policy from one province to the next). There is an increase in delays that is going along with this. The newly implemented processing fee should permit for more resources for processing, but there is no current appearance of this. Delays in processing appear set to double relative to earlier this year.
In a recent Globe and Mail article, the Minister hints and more changes on the way. This much is expected. There is an unclear reference to the possible reinstatement of the Accelerated Labour Market Opinion program that was one of the first casualties of the controversy involving the Royal Bank of Canada this year. He states that there is recognition of the need to strike a balance between the needs of business and the needs of Canadians.
Quebec’s ministère de l’Immigration et des Communautés culturelles (MICC) has announced that it will no longer process Labour Market Opinion applications submitted in English. Any application submitted following October 11 2013 must be in French.
Service Canada (branch of Employment and Social Development Canada) processes the LMO itself, but that application must also be submitted to the MICC as part of their processing of the Certificat d’acceptation du Québec (CAQ) application. That CAQ is needed for any work in the province of Quebec that will last for more than 30 calendar days.
In 2009, the province of Manitoba implemented the Worker Recruitment and Protection Act (WRAPA), which was intended to aid in the protection of temporary foreign workers in Canada. One of the provisions of WRAPA is that any employer engaged in the recruitment of foreign workers destined for that province must register and receive certification. If the employer is pursuing a Labour Market Opinion for the admission of the foreign worker, then that certificate must be demonstrated as part of the application process. Such certificates must be renewed to continue to engage in such recruitment.
The province of Nova Scotia recently implemented similar legislation as part of the Labour Standards Code. As with Manitoba, employers wishing to recruit foreign workers destined there must seek registration. According to Nova Scotia, foreign worker recruitment includes the following activities, whether or not they are provided for a fee:
- Advertising jobs
- Collecting and filing applications
- Pre-screening workers
- Testing and analyzing workers’ skills or knowledge
- Arranging formal interviews with workers
- Confirming that workers meet federal qualifications to work in Canada
- Negotiating a wage or salary that reflects the employer’s needs and the requirements under both federal and provincial labour laws
A critical difference exists between the implementation of these rules by the two provinces. Whereas Manitoba requires all employers seeking admission of a foreign worker through a Labour Market Opinion to obtain a WRAPA certificate, even a foreign employer assigning its existing employee to a short term project in the province, Nova Scotia does not. If a foreign employer seeks to assign its own employee to a project in that province, according to our communication with the Nova Scotia government, that employer does not need to seek registration, and such registration will not be demanded as part of the Labour Market Opinion process.
In December of 2012, CIC announced provisions for bridging open work permits to temporary foreign workers who had been approved in an economic class permanent resident application. The department has now issued clarification as to when a spousal partner (which may include common law partners) may become eligible for an open work permit on the basis of the principal foreign worker’s bridge work permit.
The following conditions allow the spouse of an open bridging work permit to seek an open work permit:
- Federal Skilled Workers: the principal foreign worker must be performing work which is classified as high-skill (NOC 0, A, or B).
- Provincial Nominees: the spouse may seek an open work permit for the same duration as that of the principal applicant for all skill level occupations.
- Federal Skilled Trades: the principal foreign worker must be performing work consistent with one of the qualifying (NOC Skill Level B) occupations.
- Canadian Experience Class: There are no limiting factors in this category.
- As a side consideration, dependent children of such an Economic Class applicant, must obtain a Labour Market Opinion or otherwise be eligible for an exemption from such in order to seek a work permit.
As earlier announced, Employment and Social Development Canada (ESDC; formerly Human Resources and Social Development Canada) has implemented changes to the Temporary Foreign Worker Program, and specifically, the Labour Market Opinion (LMO) application process and requirements. These changes are as follows:
1. There is now a processing fee associated with the submission of an LMO application. This is $275 per position sought. The intent of the fee is to offset the cost of rendering a decision on an application. There are some exemptions to the new fee requirement for certain low-skill on-farm agriculture occupations.
2. A limitation of the language requirements of a position to English and/or French, unless the employer can demonstrate that another language is critical to the employee’s capacity to perform the job.
3. More extensive Canadian recruiting and advertising requirements in order to demonstrate a shortage of Canadians (if applicable). For many occupations, for example, this has been extended from a minimum of single advertising method for 2 weeks to a minimum of 3 advertising methods (including a national government-operated job-bank or provincial equivalent, and at least one additional national advertising method) for 4 weeks. Records of recruiting should be kept for at least 6 years.
4. New questions in the application form governing the impact on the labour market related to the outsourcing of Canadian jobs.
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.
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.