On August 4, 2010, the governor-general-in-council published amendments to the Immigration and Refugee Protection Regulations(“IRPR”), which were expected to adversely affect many temporary foreign workers (“TFWs”). These regulatory amendments became effective on April 1, 2011.
Just before April 1, 2011, Human Resources and Skills Development Canada (“HRSDC”) announced new forms and guidelines designed to address these regulatory amendments. I have discussed these new HRSDC forms and guidelines here.
On April 1, 2011, Citizenship and Immigration Canada (“CIC”) finally issued Operational Bulletin 275-C, which provides operational instructions to both CIC and the Canada Border Services Agency (“CBSA”) in relation to the recent regulatory amendments to the Temporary Foreign Worker Program (“TFWP”). A summary of this operational bulletin appears below.
Employer ineligibility list
Before beginning to assess an LMO-exempt work permit application, CIC and CBSA officers must verify that the employer named in the offer of employment is eligible to participate in the TFWP. Under the new TFW Regulations, an employer can be found to be ineligible to participate in the TFWP for a period of two years if it is determined that they have failed, without reasonable justification, to provide substantially the same (“STS”) wages, working conditions or employment in an occupation to any foreign national who has worked for them during the prescribed period. The prescribed period begins two years from the date that the request for an opinion or the application for the work permit was received.
Officers must always check the CIC TFWP Employer Ineligibility website as the first step in processing the application. If the employer is not listed on the website, the officer can continue with the processing. If the employer is listed on the website, the officer will refuse the work permit and make an appropriate note in the remarks (i.e. “Employer currently listed on Ineligibility list; work permit refused.”)
Genuineness and STS assessments
If the employer has hired TFWs in the past, officers must also perform an STS assessment to determine whether it has, during the past two years, provided substantially the same wages, working conditions and employment in an occupation as those items set out in the offer of employment to the TFW. In general, a negative STS decision is intended to make an employer ineligible in situations where it has been determined that there has been a difference in wages, working conditions or the occupation from an original job offer made by that employer to foreign nationals and for which there is no reasonable justification. A negative assessment of the STS requirement can result in a work permit refusal as well as the employer’s ineligibility to access the TFWP for a period of two years.
Since a negative STS determination makes an employer ineligible to hire TFWs for a period of two years, and this information will be made public on the CIC website, it is important that officers assess cases of possible negative STS carefully, and take into account the significance of the differences in wages, working conditions or occupation. More specifically, a negative STS assessment should reflect situations where the differences relating to wages, working conditions or occupation that were provided to a foreign national as compared to those in the job offer are considered detrimental or disadvantageous to the foreign national and/or would compromise program integrity.
Depending upon the circumstance, STS compliance is assessed by HRSDC, CIC or CBSA. If there is a negative STS assessment by HRSDC, the information is forwarded to CIC for review and decision concerning adding the employer to the Ineligibility List should an application for a work permit be submitted.
Under R183 (1)(b.1), a foreign national may not accept a job offer to work for an employer who is named on the ineligibility list and remain in legal status in Canada. This applies to new contracts and extensions of existing contracts. A foreign national may, however, continue to work for an employer who has been found ineligible until the end of the contract term if the ineligibility determination occurs subsequent to the start of employment, provided they have authorization to work. If one of these existing employees departs Canada and then reenters Canada on the same work permit to continue working for the same employer under the same contract or agreement, they are not in breach of any conditions or otherwise inadmissible.
For the STS assessment, until CIC and CBSA have the ability to search an employer database for information on an employer’s past history of employing TFWs and the related job offers, the STS assessments will consist mainly of checking the TFWP Employer Ineligibility website and the list of employers who have a negative opinion based on an STS assessment done by HRSDC. Initially, it is expected to be rare that a comprehensive STS assessment involving verification of proof of wages documents, or of complaints related to working conditions, will be done unless information indicating non-compliance with past offers on the part of the employer becomes available to the officer during the work permit processing for the foreign national, and the officer submits a request for a more rigorous STS assessment to be conducted. Commencing April 1, 2011, Operational Management and Coordination Branch (“OMC”) of National Headquarters (“NHQ”) will review any requests for full STS assessments.
HRSDC Genuineness assessment for LMO-based cases
For LMO-based applications and extensions, HRSDC will assess the employer’s past record and the genuineness of the job offer and will provide details of this to CIC and CBSA. HRSDC will use information provided in the employer application, and as required will verify information. Officers can continue to view details of the HRSDC opinion using existing system functionality. Reports of negative genuineness and STS assessments will be sent from HRSDC to NHQ and, until an employer database can be developed, will be manually shared with officers.
A negative assessment of the job offer/employer will result in a negative opinion from HRSDC, and could result in refusal of the associated work permit application. Where the refusal is based on a negative STS determination, it could also lead to placement of the employer on the ineligibility website.
This relieves HRSDC from the obligation to provide any opinion to such an employer for 2 years. However, this does not prohibit an LMO-exempt work permit application, where that employer is identified in the job offer, from being received by CIC or CBSA. Future system enhancements are expected to allow CIC or CBSA officers to view past HRSDC, CIC and CBSA assessments of employers (matched by a common Employer ID).
CIC and CBSA genuineness assessment LMO-exempt, employer-specific occupations
For LMO-based job offers, HRSDC will have already assessed employer STS and genuineness, consistency of the job offer with federal/provincial/territorial laws and labour market impact. Therefore, if the officer is satisfied with the opinion, he/she can continue with processing the work permit and the assessment of the worker. However, in a case where an LMO is not required, CIC/CBSA officers are required to assess employers and the job offer against the applicable criteria.
The four factors of employer genuineness that must be assessed are as follows:
- Job offer was made by an employer who is “actively engaged” in the business: Should an employer’s information raise concerns with respect to an employer’s active engagement in their business, or if the officer is aware that this employer is new to the TFWP, the officer may request the information listed in the new Employer Declaration or consider an internet search and/or conducting a comprehensive assessment by requesting the employer’s T4 Summary of Remuneration paid and/or other relevant business documents. If the employer is unknown to the officer, or is a start-up company, the officer may request the employer provide a copy of their business contract (for their work in Canada). Officers can also consider requesting an attestation by a lawyer, notary public or chartered accountant substantiating that they are actively engaged in the operation of their business in Canada. The refusal of an employer to supply information to satisfy this assessment will result in a refusal to issue the work permit.
- Job offer is consistent with the reasonable employment needs of the employer: Officers must be satisfied that the offer of employment is reasonable in relation to the type of business the employer is engaged in. Should the program officer have questions with regards to this genuineness factor, he/she could either write or call the employer requesting more information. The employer must be able to satisfactorily explain the role the TFW(s) will play in their business and that it is a reasonable employment need, both in terms of occupation and business-wise. The refusal of an employer to supply information to satisfy this assessment will result in a refusal to issue the work permit.
- Employer is reasonably able to fulfill the terms of the job offer: Whether the employer is a well-known frequent participant of the TFWP can be used to determine whether additional documentation will be required to render an opinion on this factor. If the employer is unknown to the officer, additional documentation could be requested, if not already provided, such as: (i) T4 Summary of Remuneration paid, (ii) T2 schedule 100/125 (if employer is a corporation), T2125/equivalent financial statement (if sole proprietorship or partnership), (iii) Workers’ compensation clearance letter. Foreign employers may be requested to provide: (i) business contracts, or (ii) business documents similar to those requested for business visitors, entrepreneurs or other business category applicants in the host country. If the officer is otherwise satisfied with the assessment, but media sources reveal information that would lead the officer to doubt the employer’s ability to fulfill the terms of the job offer; or if the employer is, or has been, the subject of a serious complaint, infraction or investigation, the officer should contact OMC. The failure of an employer to satisfy this assessment will result in a refusal to issue the work permit.
- Employer or their authorized recruiter has shown past compliance with federal/provincial/territorial laws that regulate employment or recruitment in the province where the foreign national will be working: For the purpose of this assessment, federal and provincial laws are defined as laws related to the regulation of employer consultants and/or recruiters (“ERs”), as well as the employment of TFWs, Canadians and Permanent Residents. Violations by ERs and/or third parties reported by federal and/or provincial government department or ministries could be considered whether the violations involved Canadians, Permanent Residents or TFWs. CIC is working with provinces and territories to establish a process by which we can determine which convictions should be a basis for a work permit refusal, but this work has not yet been completed. In the meantime, officers can and should consider information they might have regarding employer non-compliance with federal or provincial laws, but additional inquiries would be required to support a refusal on the basis of R200(5)(d). Please note the following:
- If a recruiter, who is working for the employer, is not licensed in a province that requires by law, that TFW recruiters/employment agencies must be licensed (i.e. Manitoba’s Worker Recruitment and Protection Act and Alberta’s Fair Trade Act), by the province, a work permit can be refused.
- If, during the processing of a work permit application, it becomes known that the TFW paid recruitment fees, contrary to provincial legislation (i.e. Alberta and Manitoba) this would NOT necessarily result in a work permit refusal under R200(5)(d) since the employer or recruiter may not yet have been found guilty by the province. Details should be forwarded to OMC for transmission to the province for investigation. It is important to note that under the requirements of the Low Skilled Pilot and the LCP, workers cannot be charged any recruitment fees (i.e. fees for finding the foreign national a job, not fees related to applying for a work permit). In these cases a work permit could be refused under another genuineness factor.
- The refusal of an employer to supply information to satisfy this assessment can also result in a refusal to issue the work permit.
For work permit extension requests, the same genuineness factors apply. If the employment offer is found to be non-genuine under any one of the four genuineness factors, the officer is to refuse the work permit.
Live-in-caregiver program (“LCP”)
LCP opinion requests received on or after April 1, 2011 will be assessed by HRSDC against the new LCP-specific assessment factors in accordance with the regulations which came into force on that date. The new LCP-specific assessment factors will not apply to LCP opinion requests received by HRSDC prior to April 1, 2011.
In addition to the new requirements associated with genuineness, STS, and consistency with federal-provincial/territorial agreements, failure to meet one or more of the 3 new LCP factors can also result in a negative opinion or a refusal to issue the work permit to an LCP applicant. The three new LCP-specific factors assessed by HRSDC as part of their opinion processing are as follows:
- The foreign national will reside in a private household in Canada and provide childcare, senior home support care or care of a disabled person in that household without supervision;
- The employer will provide adequate furnished and private accommodations in the household; and
- The employer has sufficient financial resources to pay the caregiver the wages offered.
In addition to assessing the three factors noted above, HRSDC will review the proposed employment contract signed by the employer and prospective caregiver to ensure the terms of the contract meet LCP requirements. In assessing the prospective caregiver’s LCP work permit application, visa officers are also expected to review the contract that has been signed by the employer and caregiver, to ensure that the terms of the contract meet LCP requirements.
The signed employment contract provided in support of the prospective caregiver’s work permit application should be consistent with the employment contract provided to HRSDC by the employer in support of their LMO application. However, it may be necessary for the employer and prospective caregiver to renegotiate some aspects of the employment contract.
If the contract is revised after being approved by HRSDC as part of the employer’s LMO application, any changes to the contract must be clearly identified and explained in the version provided to the visa office as part of the prospective caregiver’s work permit application. Any revised employment contract must bear the signatures of both the employer and prospective caregiver. If the revised contract has hand written changes, the original wording must remain legible, be struck out and the signatures of both parties must appear next to any change, indicating mutual agreement.
Visa officers should also assess the genuineness of the job offer and LCP-specific factors, and must satisfy themselves that all LCP requirements are met in making a determination to issue a work permit under the LCP. Officers should avoid duplicating the upfront assessment of employer genuineness and LCP-specific factors undertaken by HRSDC and should generally base their decision on HRSDC’s assessment. However, as a general guideline, officers are encouraged to re-assess these factors if they have reasonable grounds to consider that these elements are not being met or there may be a question as to whether these elements continue to be met.
For instance, visa officers may decide to re-assess and confirm the employer’s financial capacity to honour the terms of the employment contract if a significant amount of time has elapsed since HRSDC’s initial assessment at the time the work permit application is being assessed at the visa office. Similarly, re-assessment of the LCP-specific factors may be warranted as the result of information obtained through an interview of the prospective caregiver in the course of processing the work permit application (e.g. the caregiver’s understanding of the job duties, working conditions, wages, etc. are inconsistent with the information in the contract).
The level of assessment to be done by a CBSA officer or an officer at CPC-V also depends on the extent to which they are satisfied by previous assessments of the three LCP-specific factors done by HRSDC and/or the visa office. POE and inland officers need to be aware of the new changes, but will generally continue status quo processing of live-in caregivers. Only if during the POE exam, or during assessment of a LCP work permit application at CPC-V, evidence suggests these elements are not being met, would a CBSA or CPC-V officer likely consider it necessary to further explore and re-assess these LCP-specific provisions.
For the LCP, HRSDC is responsible for conducting the STS assessment in order to provide an opinion as to whether, over the past two years, employers who are applying for an LCP opinion and who have hired TFWs in the past provided the wages, working conditions and employment in an occupation that were substantially the same as those items set out in the offer of employment to the foreign national.
Consistency with Federal-Provincial/Territorial agreements
Using the authority found in R204(c), CIC and Provinces/Territories (“PTs”) have developed Annexes that deal with the entry of temporary foreign workers to respond to Provincial/Territorial labour needs. The Annexes support federal-provincial/territorial cooperation through various means, including some provincial/territorial directed LMO exemptions, and pilot projects.
HRSDC will assess the employer for all LMO-required job offers, which will include ensuring consistency with the terms of any federal-provincial/territorial TFW Annex agreement in place that apply to the employers of foreign nationals. Employers will be advised if the job for which they are seeking to hire a TFW falls under a pilot program under a federal-provincial/territorial agreement where they would be exempt from the requirement to obtain an LMO. HRSDC will also advise employers of any applicable obligations under a federal-provincial/territorial agreement, for example, where a Workplace and Orientation Plan for TFWs is required.
CIC and CBSA officers will verify that the foreign national meets the eligibility requirements outlined under these pilots or programs. Failure to meet these criteria can result in a work permit refusal.
As per TFW Annexes currently in place, a province can allow an employer to select TFWs to work temporarily in their province outside of the Provincial Nominee Program. If information becomes available to an officer subsequent to the province’s verification that leads the officer to question the genuineness of the employment offer, or suggests the employer has not met the STS test the officer may refuse the issuance of the work permit based on the genuineness or STS factors of the new TFW regulations. The officer may also refuse the work permit application for any other breach of the applicable regulations.
Cumulative Duration Limit
The new regulations impose a four-year cumulative duration limit on most TFWs. The accumulation of time time worked toward this four-year limit began on April 1, 2011; prior periods of work will not count towards the four-year calculation. This means that refusals of work permits as a result of this prohibition will potentially begin April 1st, 2015.
Work permits may be issued prior to 2015 for a shorter duration than requested by the employer in cases where the foreign national will soon reach the maximum time worked in Canada. Additionally, work permits may be refused if the foreign national is close to reaching their maximum time worked and the officer is not satisfied that the foreign national will return home if a work permit were to be issued for a short duration (i.e. one month).
All work in Canada counts towards the four-year total, including work done while under implied status, unless the work was performed during a period in which the foreign national was authorized to study full-time in Canada. Once a foreign national has accumulated four years of work (Definition R2), this regulation authorizes an officer to refuse to issue the foreign national another work permit. A TFW who spends four consecutive years either: (a) outside of Canada, or (b) in Canada but provides evidence of not working, can start accumulating another four years of work.
If the foreign national is seeking to enter Canada to do work that does not require a work permit (i.e. R186) there is no basis to refuse entry. Similarly, if a foreign national is intending to work in an occupation that is included in the exceptions to work permit refusals based on cumulative duration, the work permit would not be refused on this basis.
The following categories of work permits are considered exceptions to the four-year cumulative duration limit:
- Foreign nationals seeking to work in managerial (NOC O) and professional (NOC A) occupations;
- Foreign nationals seeking to work in Canada who fall under one of the exceptions in Annex B [International agreements (R204), Canadian interests (R205), Self-support (R206), Permanent Residence Applicants in Canada (R207), and Humanitarian reasons (R208)];
- With regard to spouses and dependants of TFWs who are LMO-exempt, only spouses and dependents of TFWs in managerial (NOC 0) and professional (NOC A) occupations would not be refused a work permit based on the cumulative duration provisions; and
- Permanent Residence Applicants: Foreign nationals who have applied for permanent residence (PR) and who have received a positive assessment in the PR category for which they have applied as follows:
- A Certificat de sélection du Québec (“CSQ”) if applying as a Quebec Skilled Worker;
- A Provincial Nominee Program (“PNP”) certificate if applying as a provincial nominee;
- An approval in principle letter if applying under the Live-in Caregiver Class;
- A positive selection decision if applying under the Federal Skilled Worker Class;
- A positive selection decision if applying under the Canadian Experience Class.
All other groups (i.e. workers in NOC B, C, and D level occupations) would be subject to the cumulative duration limit of four years.
With regard to the accounting of work periods for the purpose of cumulative duration, the approach envisioned is that the duration of the TFW’s work permit would generally indicate the actual period of work for the calculation of cumulative duration. The calculation would take into account periods not actually worked, if the TFW can satisfy a CIC officer, using appropriate documentation, that there were breaks in work due to legitimate reasons (such as extended sick-leave, maternity leave, absence from Canada, etc.). The foreign national is also expected to advise of any periods of work while not on a work permit (R186).
A TFW’s work permit will be deemed to equate with his/her period of employment, unless there is evidence of a gap that clearly should not be counted towards the 4-years’ cumulative duration pursuant to 200(3)(g). A TFW will be considered to be working during any period of employment for the purposes of the cumulative duration calculation, even while not on a WP, unless the work was performed when the foreign national was a full-time student.
In some cases a TFW will work in Canada for a period of time, leave the country or change status so as not to be working in Canada, then begin additional periods of work. These periods of work need to be added together to determine whether the TFW has attained the four years’ cumulative duration.
If a TFW wants to demonstrate that some of his/her work permit was not used to work in Canada, the TFW will need to provide evidence to the officer that this was the case. A TFW’s work permit in combination with the evidence provided by the TFW as to actual periods not worked during the validity period of a WP or worked but not on a WP, where applicable, will be deemed to constitute the period of time worked in Canada. Eligible gaps in employment could include the following:
- Periods of time spent outside of Canada;
- Periods of medical leave spent in Canada, if this period is not covered by the employment contract/agreement; and
- Maternity/paternity leave spent in Canada.
The following is a non-exhaustive list of documents that might establish eligible gaps in employment:
- Passport entry and exit stamps.
- Official documents indicating that the employment started and/or ended on certain dates; for example, a Records of Employment submitted by employers to Service Canada or proof of receipt of severance pay.
- Letter from a foreign educational institution stating that the TFW was attending their institution for a period of time during the work permit authorization.
- Travel receipts including ticket and boarding passes demonstrating that the TFW was out of the country for a period of time during the work permit authorization, other than a period of paid leave (e.g. sick leave, vacation leave) from their employment; compare with information regarding period of employment to see whether leave was covered by contract terms.
- Proof of receipt of maternity/parental benefits.
- Letter from physician confirming TFW was on medical leave for a certain period of time; compare with information regarding period of employment to see whether leave was covered by contract terms.
- In Alberta, if a foreign national did not complete the full duration of a work permit due to poor working conditions, a letter can be provided by the TFW Advisory Office.
- For TFWs working under a Group of Employers (“GOE”) agreement, there may be short periods of no work between projects, and a letter from the GOE Administrator can be accepted.
When processing an LMO request, HRSDC will not verify the accumulated time worked in Canada for any foreign nationals named in the LMO. If the opinion is still valid, and the TFW named on the LMO has been refused a work permit due to reaching the maximum time allowed to work in Canada, the employer can submit a request to HRSDC under the same system file number to select another TFW for the LMO.
Henry J Chang
Blaney McMurtry LLP
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