Tag Archives: work permit

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.

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.

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.

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).

Accelerated Labour Market Opinion

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HRSDC and Service Canada have enacted a program allowing for the accelerated processing of certain Labour Market Opinion applications. The program, entitled the Accelerated Labour Market Opinion (A-LMO) Initiative, allows eligible employers (excluding those in the province of Quebec at present) seeking the admission of higher skill workers (i.e., National Occupational Classification (NOC) levels 0 or A) to benefit from reduced paperwork and faster processing times, while at the same time enhancing the integrity of the Temporary Foreign Worker Program (TFWP).

Some Background

Service Canada is the service delivery arm of the Canadian Ministry of Human Resources and Development Canada. Through the TFWP, this body is tasked by Citizenship and Immigration Canada to assess the impact of the admission of a foreign worker, other than a foreign worker eligible for exemption. This applies to the majority of candidates seeking to engage in temporary work in Canada; exemptions are based on either International Treaties or Canadian Interests.

A Labour Market Opinion is rendered by Service Canada if, after reviewing an application from an employer, they are satisfied that the admission of the foreign worker will not have an adverse effect on the Canadian labour market.

Accelerated Labour Market Opinion Initiative

The A-LMO continues to assess most of the criteria fundamental to a traditional LMO approval. As such, Service Canada will continue to review these cases to determine that the job offer is genuine, that the wage offered to the foreign worker is consistent with that needed to attract and retain Canadians, and whether or not the job offer fills a labour shortage. The program does not, in its current form, address those situations in which the employment of a foreign worker will directly create or retain Canadian employment, or where there is a transfer of knowledge or skills to Canadians. In those cases in which admission is not sought on the basis of a labour shortage, it is expected that the case will be processed in the normal streams and subject to the requirements of such.

Employers will need to meet certain requirements to be eligible in the A-LMO program:

  1. They will need to be the recipient of one or more positive Labour Market Opinion Confirmations within the two years prior to registering;
  2. They will need to consent to post A-LMO Compliance reviews; and
  3. They will not have been the subject of any investigation, infraction, or serious complaint, and do not have any unresolved violations or contraventions under employment and recruiting legislation.

An eligible employer will be able to pursue an A-LMO application if the offer to the foreign worker meets certain requirements:

  1. They will need to agree to all attestations that are part of the A-LMO application process;
  2. The wage offered to the foreign worker will have to be consistent with policies governing prevailing wage; and
  3. They will have met minimum Canadian recruiting requirements prior to offering the position to the foreign worker and submitting the A-LMO application.
  4. They are offering employment in a Management, Professional, or Technical occupation (i.e., NOC 0 or A), other than an occupation in film and entertainment or agriculture sectors.

Compliance

As part of the application process, the employer will agree to potentially undergo Compliance review following the A-LMO approval. It is expected that 18% of A-LMO approvals will be subsequently and randomly selected to undergo this review process. That number is certainly high enough to ensure that employers adhere to requirements of the program and LMOs in general, as there are consequences to the employer and/or present and future LMOs and LMO applications.

A compliance review involves Service Canada’s assessment of whether or not the employer has provided the foreign worker with “substantially the same” wage and working conditions as was offered during a prior A-LMO or LMO application in the two previous years including:

  • that the employer provided the foreign worker the same wages and working conditions as those offered to Canadians in the same occupation and location;
  • that employer can document performance of the minimum recruitment efforts required;
  • that the employment of a foreign worker did fill a Canadian labour shortage;
  • that the employment of a TFW did not adversely impact the outcome of a labour dispute; and
  • that the employer agrees to abide by the relevant laws regulating employment and recruitment.

Quebec Expands Post-Graduation Work Permit Program

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The province of Quebec has expanded the Post-Graduation-Work-Permit (PGWP) Program, which allows certain foreign students to obtain open work permits for a maximum duration of three years following graduation from an accepted Canadian academic institution. The program has traditionally allowed students of the following programs to seek these permits:

  • a public post-secondary academic institution;
  • a private post-secondary institution that operates under the same rules and regulations as public institutions, and receives at least 50 percent of its financing for its overall operations from government grants;
Effective late February 24 2012, students of certain additional academic programs are also eligible. These include:
  • Approved vocational and professional programs lasting eight months (or 900 hours) or more, and which are given by accepted public and private secondary institutions; and
  • Approved vocational and professional programs lasting eight months (or 900 hours) or more, and which are given by accepted public and private secondary institutions.

The programs eligible as part of this expansion of the PGWP Program include:

Public/Private Secondary

  • Diploma in Vocational Studies
  • Attestation of Vocational Specialization

Private Post-Secondary

  • Diploma in College Studies
  • Attestation of College Studies


Quebec Terminates IT Worker Program

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Effective February 24 2012, the province of Quebec has terminated the Facilitated Processing of Information Technology Workers program. Citizenship and Immigration Canada will continue to process Quebec-destined cases in which a Certificat d’acceptation du Québec had been issued by this date.

At present, candidates applying for new work permits or renewals of work permits for most IT development positions are subject to the requirement of a Labour Market Opinion. For nationals countries participating in Free Trade Agreements, exemptions may be possible for Systems Analysts. For nationals of countries participating in the General Agreement on Trade in Services, exemptions may be possible for certain Senior Computer Specialists seeking permits of no longer than 90 days within a one year period.

Work Permit Cases not Presently Being Accepted at Damascus Visa Office

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Due to the current violence in Syria, Citizenship and Immigration Canada has elected to temporarily cease services at the visa office in Damascus. Applicants from Syria wishing to submit work permit applications must presently send these to the visa offices in either Amman, Jordan, or Beirut, Lebanon. Syrian nationals outside of Syria may use the visa office normally responsible for the jurisdiction of the country in which they have been legally admitted.

There is presently no indication as to how long the temporary termination of Canadian work permit services will last.

Impact of Canada-USA Border Deal for Work Permit Holders

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In December of 2011, the Prime Minister of Canada and President of the USA made a joint announcement regarding plans to implement a cooperative effort to improve security and efficiency at the ports of entry (including border crossings and airports) between the two countries. The effort has numerous facets, which may see RCMP and US police officials obtain jurisdiction on either side of the border, improved airport security, sharing of infrastructure between certain border crossings, harmonization of rules, sharing of information, and more.

The prospect of sharing of information has certain advantages and disadvantages to holders of Canadian work permits. A principal goal of the effort would be to have better information on the movement of temporary residents relative to their permission to stay in Canada. For example, there would be more knowledge of whether or not a given individual respected the conditions of a temporary stay in Canada, leaving or otherwise renewing status within the time permitted. If implemented, an individual who overstays could face negative consequences in the case of any future effort to seek admission to Canada.

In certain cases, work permit holders are constrained by time limitations associated with the issuance of a Canadian work visa. For example, intra-company transferees may be  permitted stays of between five and seven years, but such time is assessed only against the duration of time actually spent in Canada. In such a case, better exit controls may serve the purpose of facilitating demonstration of the duration of the actual stay of such a work permit holder, permitting the maximum actual duration of validity of the immigration document.

It is not yet clear how or if this effort will be implemented. There are also differing accounts of the extent and purpose of information sharing. However, this could be a very important development for the two countries.

Facilitated Processing of IT Workers Visa Program Terminated in BC

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Effective for cases submitted on January 1 2012 and thereafter, work in the province of British Columbia is no longer subject to the Facilitated Processing of Information Technology Workers Program. Other than Quebec, all other provinces in Canada terminated the same program in September 2010.

Citizenship and Immigration Canada will therefore require Labour Market Opinions (i.e., Confirmations) for temporary work permit applications which had been earlier subject to the Facilitated Processing of Information Technology Workers provisions. The only exception at present is for cases in which the work is in the province of Quebec, where the program remains active for an undefined period; it should be noted that those cases are however subject to the requirement of a Certificat d’acceptation du Québec prior to seeking the work permit.

The Facilitated Processing of Information Technology Workers program was a collaboration between Citizenship and Immigration Canada (CIC), Human Resources and Skills Development Canada (HRSDC), and the Software Human Resources Council (now defunct). It was intended to expedite the admission of foreign workers in certain defined information technology occupations, primarily those in software development, by allowing admission in the absence of a Confirmation Letter from HRSDC. Those eligible were deemed to be admissible under what was termed a National Confirmation; i.e., no negative labour market impact was automatically determined by HRSDC. The program was enacted at a time, in the late 1990’s, when there was a perceived critical shortage of such IT professionals.

HRSDC issued notice in 2010 that this program would be terminated on September 30 2010, with the exception of the provinces of British Columbia and Quebec. Quebec and BC were the only provinces to extend the program at that time. Quebec did so for an undefined duration, and BC did so for incremental periods. As BC has now terminated the program, only Quebec is still subject to these provisions; all other cases must first obtain a LMO Confirmation prior to proceeding with the work permit application. Any case submitted for work in the province of BC prior to January 1 2012 will be processed to its conclusion and could be eligible for a work permit of up to one year from the date of its issuance.