Digital Signatures in the Temporary Foreign Worker Program

One of the more frustrating aspects of the Temporary Foreign Worker Program from an application procedure angle can be determining whether ESDC accepts digital signatures, and whether an individual other than the 3rd party representative can sign for the person named as the third party representatives.

Helpfully, the Temporary Foreign Worker Program Wiki appears to answer that digital signatures are accepted in the TFWP, and that if there is no doubt that an individual works in the same law firm as an authorized third party then it is reasonable to accept that this individual can sign as an authorized representative.

TFWDigitalSignature

 


LMIA Cap on Low Wage Employees

Canada’s Temporary Foreign Worker Program (the “TFWP“) allows employers to bring foreign workers to Canada to temporarily fill jobs for which qualified Canadians are not available. After the program became increasingly controversial in 2012-13, the Department of Employment and Social Development Canada (“ESDC“) on June 20, 2014 imposed a cap limiting the proportion of low-wage foreign workers that businesses can employ.

How the Cap Works

Employers with a company-wide business size of 10 or more employees are subject to the cap.  The cap percentage is determined for each individual worksite location and is based on paid positions and total hours worked at that worksite.

Employers that are new to the TFWP or returning employers who did not have any foreign workers on staff on June 20, 2014 are capped at 10% low-wage foreign workers for each work location.

The cap, implemented on June 20, 2014, was phased in to provide employers time to transition to a Canadian workforce which means that they are limited to a:

  • 20 percent cap on the number of foreign workers in low-wage positions, or the employer’s established estimated cap (whichever is lower), if the employer hired a TFW in a low-wage position prior to June 20, 2014; or
  • 10 percent cap on the number of foreign workers in low-wage positions if the employers did not employ a TFW in a low-wage position prior to June 20, 2014.

Effectively, companies are limited to a 10% cap on the proportion of low-wage foreign workers that they can have.  The low-wage is based on a province’s median wage, which as of writing is as follows:

Province/Territory Wages prior to

April 29, 2016

2014 Wage ($/hour)

Wages as of

April 29, 2016

2015 Wage ($/hour)

Alberta $25.00 $25.38
British Columbia $22.00 $22.60
Manitoba $19.50 $20.00
New Brunswick $18.00 $18.50
Newfoundland and Labrador $21.12 $20.91
Northwest Territories $30.00 $31.25
Nova Scotia $18.85 $19.00
Nunavut $29.00 $28.92
Ontario $21.15 $22.00
Prince Edward Island $17.49 $18.00
Quebec $20.00 $20.60
Saskatchewan $22.00 $22.80
Yukon $27.50 $28.51

The calculation of the cap can be complicated, and is perhaps best summarized by this portion of ESDC’s Schedule E – Cap for Low-Wage Positions.
schedulee

The Schedule E also contains sections on how the addition of foreign workers would impact the cap.

The cap does not apply to:

  • Employers with a company-wide business size of fewer than 10 employees;
  • Employers hiring foreign workers for positions related to on-farm primary agriculture, including the Seasonal Agricultural Worker Program;
  • Positions that are truly temporary (e.g. emergency and warranty positions);
  • Positions that are highly mobile or truly temporary and no more than 120 calendar days. This duration
    can be extended if an employer can demonstrate that their peak season, project or event operates
    beyond 120 days;
  • Applications supporting permanent residence under any Express Entry programs (e.g. Federal Skilled
    Worker Program, Federal Skilled Trades Program); and
  • Certain seasonal positions.

It is also important to note that employers who are subject to the cap do not have to include the following types of low-wage foreign workers when calculating the cap:

  • LMIA-exempt foreign nationals working under Immigration, Refugees and Citizenship Canada’s International Mobility Program;
  • Foreign nationals who have received a nomination certificate from a Provincial Nomination Program; and
  • Foreign workers working in low-wage positions that are exempt from the cap.

 

Frequently Asked Questions

The following are samples of frequently asked questions that were reproduced from the TFWP Wiki below.  Please note that the information below was obtained through an Access to Information Act request, and may not be up to date.

Question – When considering the impact cap percentage, should an officer ’round’ to the nearest decimal point? Example, established cap is 10% and the impact cap is percentage is 10.1 to 10.5. Does ESDC round down to 10% and accept it, or does it just determine it exceeds the 10% cap?

Answer -When calculating the Cap or the Impact on Cap comparison calculations, the percentage should be recorded up to two decimal points, rounding accordingly.

 

Question – What should be done with LMIA applications where the employer has identified more than one location on the application – i.e. Employer A has applied for 15 workers for 3 different locations on 1 LMIA form? How will the cap be noted to ensure a cap rate is captured for each location on the LMIA form?

Answer – The employer must complete a separate application for each location of work in order for a cap to be established for each location; and each location will also have an individual cap comparison calculation to determine the effect of hiring requested TFWs based on the employer’s current staffing complement at the time of the submission of the application.

 

Question – How does previously confirmed but unfilled LMIAs (i.e. hired but who have not started work) affect the determination of business size and cap calculation?

Answer – Previously confirmed but unfilled LMIAs (that are not expired) are to be included as employees for determining the business size. Pending applications should not be included in these numbers.

 

Question – Should owners count themselves when determining their business size?

Answer – When determining if a business has 10 or more employees company-wide, the count should include all employees on payroll and the vacant position. If the owner has a paid position, they should be included.

 

 

Question – When calculating “Determining the Effect on the Cap”, does the 4 consecutive weeks prior to LMIA submission have to be the 4 weeks prior to the application date or can there be a gap?

Answer – Ideally there should be as small a gap as practically possible for the purposes of this calculation. According to the CAP Directive the employer should provide data from the 4-week period “immediately prior” to the date the application was signed. W-T is interpreting “immediately prior” as allowing up to a 2 week gap between when the application is signed and the four consecutive weeks used by the employer for determining the effect of the CAP. In addition, two weeks may also be allowed between when the application is signed and when the application is received.

 

Question – If the staffing complement listed on Schedule E changes between the date of signature and the date of assessment, how does the officer proceed with assessing the cap?

Answer – The effect calculation will be assessed based on the four-week period used prior to the date of signature, and NOT the date of assessment.


Service Canada Officers Fettering Discretion

As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals.  There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment.  Those who have experience submitting LMIA applications will know that this is not surprising.

Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“)

In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website.  The Federal Court stated that:

While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion.

Justice O’Reilly went on to note that:

  • Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and
  • Because the employer had provided evidence that the Working in Canada website was inaccurate, it was unreasonable for the officer to nonetheless rely on it and to ignore the additional information.

Seven Valleys Transportation Inc. v. Canada (Employment and Social Development), 2017 FC 195 (“Seven Valleys“)

In Seven Valleysan ESDC officer refused an LMIA application solely because the employer advertised with a job requirement that an internal ESDC Wiki deemed excessive, and the officer chose to ignore the employer’s reasons as to why the requirement was not in fact excessive.

While the Federal Court accepted that ESDC can have internal policies, it determined that the officer ignoring the rationale provided regarding challenging routes, public safety, and the high value of the trucks, and instead relying solely on the internal Wiki as being binding, constituted a fettering of discretion.


Procedural Fairness in LMIA Applications

Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low.  In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):

The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.

However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.

Extrinsic Evidence

If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.

Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.

It does, however, include information derived from third parties that is not publicly available.  For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC, then the officer must provide the employer with an opportunity to respond to the information that the third party provided.


Priority Processing in LMIA Applications

Labour Market Impact Assessment (“LMIA”) applications typically take 1-2 months to process. However, the Department of Employment and Social Development Canada (“ESDC”) processes LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries within a 10 business day service standard.

High-Demand

To be considered a High-Demand LMIA, the position must be for a skilled trade on the list of eligible occupations below, and the wage being offered for the position must be at, or above, the provincial / territorial median wage where the job is located.

Tables about unemployment, Median wages, 10-day speed of service

NOC
2006
NOC
2011
Occupation Title
7212 7202 Contractors and supervisors, electrical trades and telecommunications occupations
7215 7204 Contractors and supervisors, carpentry trades
7219 7205 Contractors and supervisors, other construction trades, installers, repairers and servicers
7271 7271 Carpenters
7216 7301 Contractors and supervisors, mechanic trades
7217 7302 Contractors and supervisors, heavy equipment operator crews
8211 8211 Supervisors, logging and forestry
8221 8221 Supervisors, mining and quarrying
8222 8222 Contractors and supervisors, oil and gas drilling services
8241 8241 Logging machinery operators
8252 / 8253 8252 Agricultural service contractors, farm supervisors and specialized livestock workers
9211 9211 Supervisors, mineral and metal processing
9212 9212 Supervisors, petroleum, gas and chemical processing and utilities
9214 9214 Supervisors, plastic and rubber products manufacturing
9231 9231 Central control and process operators, mineral and metal processing
7351 / 7352 9241 Power engineers and power systems operators
9424 9243 Water and waste treatment plant operators
7231 7231 Machinists and machining and tooling inspectors
7261 7233 Sheet metal workers
7263 7235 Structural metal and plate work fabricators and fitters
7264 7236 Ironworkers
7265 7237 Welders and related machine operators
7241 7241 Electricians (except industrial and power system)
7242 7242 Industrial electricians
7243 7243 Power system electricians
7244 7244 Electrical power line and cable workers
7245 7245 Telecommunications line and cable workers
7246 7246 Telecommunications installation and repair workers
7251 7251 Plumbers
7252 7252 Steamfitters, pipefitters and sprinkler system installers
7253 7253 Gas fitters
7311 / 7317 7311 Construction millwrights and industrial mechanics
7312 7312 Heavy-duty equipment mechanics
7313 7313 Refrigeration and air conditioning mechanics
7314 7314 Railway carmen/women
7315 7315 Aircraft mechanics and aircraft inspectors
7318 7318 Elevator constructors and mechanics
7371 7371 Crane operators
7372 7372 Drillers and blasters – surface, mining, quarrying and construction
7373 7373 Water well drillers
8231 8231 Underground production and development miners
8232 8232 Oil and gas well drillers, servicers, testers and related workers
9232 9232 Petroleum, gas and chemical process operators

Highest-Paid

To be considered a Highest-Paid LMIA, the wage being offered for the position is at or above the top 10% of wages earned by Canadians or permanent residents in the province/territory, where the job is located.  This amount is:

Tables about unemployment, Median wages, 10-day speed of service

Province/Territory Wages prior to
April 30, 2016
2014 Wage ($/hour)
Wages effective
April 30, 2016
2015 Wage ($/hour)
Alberta $47.60 $48.74
British Columbia $40.38 $41.63
Manitoba $38.46 $40.00
New Brunswick $36.06 $37.00
Newfoundland and Labrador $42.53 $42.00
Northwest Territories $55.00 $55.00
Nova Scotia $38.00 $38.46
Nunavut $53.85 $54.00
Ontario $43.75 $45.19
Prince Edward Island $35.00 $35.90
Quebec $38.71 $40.00
Saskatchewan $43.17 $44.23
Yukon $43.59 $45.67

Short Duration

To constitute a Short Duration LMIA, the length of employment must be 120 calendar days or less. It is applicable for any occupation. The wage being offered for the requested occupation must be at or above the provincial / territorial hourly median wage for the occupation.

Things to Note

There are several things that employers should know about the 10 day service standard, including that:

  • An Employer Compliance Review or Inspection takes precedence over the 10-Day Speed of Service.
  • To be eligible for the 10-Day Speed of Service a file must be complete. If additional information is required, an application will alos be removed.
  • Complex files will also be removed from the 10-Day Speed of Service.


Labour Market Impact Assessments – Recruitment Requirements

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

Continue reading “Labour Market Impact Assessments – Recruitment Requirements”


LMIA Exemption for the Performing Arts Sector

On February 3, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”, previously “CIC”) introduced new Labour Market Impact Assessment (“LMIA“) exemptions, and expanded the Business Visitors category for certain foreign nationals so that they may work in Canada without a work permit.

The specific changes are:

    • the introduction of a LMIA exemption for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents;

 

    • the introduction of a LMIA exemption to prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations; and

 

  • that foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may now be considered as Business Visitors.

The LMIA exemptions described above take affect on February 17, 2016.  The expansion to the Business Visitor category is effective immediately.

Significant Benefit Guidelines

As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents.

The IRCC website notes that such positions are typically unionized and pay above the provincial median wage for all occupations.

Applicants are advised to provide both a letter of support from the production as well as a letter from the relevant union or guild.

Work permits will be valid for the duration of the intended employment, or until the expiry of the foreign national’s travel document, whichever is earlier.  If there is no end date to the duration of intended employment, then the work permit will be valid for up to two years, or until the expiry of the foreign national’s travel document.

Reciprocal Employment Guidelines

As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations.

Evidence of reciprocal employment opportunities include:

    • where an offer of employment clearly indicates that the applicant’s job offer is in the dance, opera, orchestra or live theatre disciple of the arts, and that the employer is a current recipient of annual or multi-year operational funding support from the Canada Council for the arts or of financial support via parliamentary appropriation;

 

    • where there is a letter (or other evidence) submitted by the foreign national that has been provided by an applicable Canadian performing arts representative or service organization and that proves reciprocal international opportunities exist for Canadians in that discipline.  A 1:1 ratio is not necessary; rather, proof that similar opportunities exist for Canadians internationally is sufficient; and

 

  • where the applicant can provide a copy of a formal agreement between a Canadian performing arts organization and an international performing arts organization that stipulates the employment of particular workers who possess intellectual property related to the production.

Work permits will be valid for the duration of the intended employment, or until the expiry of the foreign national’s travel document, whichever is earlier.  If there is no end date to the duration of intended employment, then the work permit will be valid for up to two years, or until the expiry of the foreign national’s travel document.

Business Visitors 

As noted above, foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may be considered as Business Visitors.

The film producers must be employed by foreign companies.

As well, the essential personnel (e.g., actors, directors, technicians) must be entering Canada for a short duration, which on the IRCC website is stated as being no longer than two weeks.  The commercial must be foreign-financed.

This Business Visitor category is in addition to the existing work permit exemption for performing artists, which includes:

More information about the new LMIA exemption and Business Visitor categories can be found here.

Please contact us if you have any questions or concerns about his upcoming change.


Administrative Monetary Penalty Regime Coming to Foreign Worker Program

On July 1, 2015, the Government of Canada published regulations in the Canada Gazette that introduce an Administrative Monetary Penalty (“AMP“) regime into the Temporary Foreign Worker Program (“TFWP“) and the International Mobility Program (“IMP“).  Both Citizenship and Immigration Canada (“CIC“) and the Ministry of Employment and Social Development (“ESDC“) will administer the AMP.  In addition, the regulations will replace the exiting two-year ban period for employer non-compliance with 1, 2, 5, 10 year, and permanent bans. 

The amendments will take effect on December 1, 2015. 

The Administrative Monetary Penalty Regime

Under the new AMP regime, employer non-compliance will be divided into three types of violations.  

Type A violations will include where an employer:

  • is unable to demonstrate that any information that it provided in respect of a work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
  • did not retain document(s) that relates to employer compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment
  • did not have sufficient resources to pay a live-in caregiver(s);
  • could not demonstrate that any information that it provided for a Labour Market Impact Assessment (“LMIA“) application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
  • did not report at any time and place specified to answer questions and provide documents during an ESDC audit;
  • did not produce required documents during an ESDC inspection; and
  • did not attend any ESDC inspection, nor give all reasonable assistance to the ESDC officer conducting the inspection.

Type B violations will include where an employer:

  • did not comply with federal and provincial laws that regulate employment;
  • did not comply with federal and provincial laws that regulate the recruiting of employees in the province in which the foreign national works;
  • did not provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment;
  • did not ensure that a live-in caregiver resided in a private household in Canada and provided child care, senior home support care or care of a disabled person in that household without supervision
  • did not ensure that the employment of the foreign national would result in direct job creation or retention for Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit;
  • did not ensure that the employment of the foreign national would result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit
  • did not hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit; and
  • did not make reasonable efforts to hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit.

Type C violations will include where the employer:

  • was not actively engaged in the business in which the offer of employment was made, unless the offer was made for employment as a live-in caregiver;
  • of a live-in caregiver did not provide the foreign national with adequate furnished private accommodation in the household; and
  • did not make reasonable efforts to provide a workplace that was free of abuse.

Once ESDC and/or CIC has determined which type an employer’s violation falls under, it will assign points under the AMP regime based on the employer’s compliance history and the severity of the violation.

Points for the employer’s compliance history will be calculated as follows:

Compliance History
Criteria Points
Type A and B violations, first violation 1
Type A, second or subsequent violation 2
Type B violation, second violation 2
Type C violation, first violation 2
Type B violation, third or subsequent violation 3
Type C violation, second violation 3
Type C violation, third or subsequent violation 4

Points for the severity of the violation will be calculated as follows:

Severity of the Violation
Criteria Points
The employer derived competitive or economic benefit from the violation. 0 – 6
The violation involved abuse of a foreign national. 0 – 10
The violation negatively impacted the Canadian labour market or the Canadian economy. 0 – 6
The employer did not make reasonable efforts to minimize or remediate the effects of the violation. 0 – 3
The employer did not make reasonable efforts to prevent recurrence of the violation. 0 – 3

ESDC and/or CIC will add the number of points based on the employer’s compliance history and the severity of the violation to determine the AMP.  In calculating the AMP, employers will be divided into “large businesses” and “small businesses.”  A “small business” is any business, including affiliated entities, that have fewer than 100 employees or less than $5,000,000 in annual general revenue.

For Type A violations, the size of the AMP will be as follows:

Type A
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 500 750
3 750 1000
4 1000 2000
5 4000 6,000
6 8,000 10,000
7 12,000 20,000
8 20,000 30,000
9 or 10 30,000 45,000
11 or 12 40,000 60,000
13 or 14 50,000 70,000
15 or more 100,000 100,000

For Type B violations, the size of the AMP will be as follows:

Type B
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 750 1,000
3 1,250 2,000
4 3,000 7,000
5 7,000 12,000
6 12,000 20,000
7 20,000 30,000
8 35,000 45,000
9 or 10 50,000 60,000
11 or 12 60,000 70,000
13 or 14 70,000 80,000
15 or more 100,000 100,000

For Type C violations, the size of the AMP will be as follows:

Type C
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 1,000 2,000
3 5,000 10,000
4 10,000 20,000
5 15,000 30,000
6 20,000 40,000
7 35,000 50,000
8 45,000 60,000
9 or 10 60,000 70,000
11 or 12 70,000 80,000
13 or 14 80,000 90,000
15 or more 100,000 100,000

In addition to fines under the AMP, the number of points that an employer receives will determine the ban length as follows:

Total number of Points Type A Violation Type B Violation Type C Violation
0 to 5 None None None
6 None None 1 year
7 None 1 year 2 years
8 1 year 2 years 5 years
9 or 10 2 years 5 years 10 years
11 or 12 5 years 10 years 10 years
13 or 15 10 years 10 years 10 years
15 or more Permanent Permanent Permanent

Where an employer fails to comply with multiple conditions, each unjustified failure to comply will be treated as a separate violation.  As well, violations of a single condition that involve more than one foreign worker will be treated as separate violations for each foreign worker affected. Finally, for conditions that have separate elements, a failure to comply with each element that is not justified will be treated as a separate violations.

Given how the size of the AMP can soar dramatically depending on the number of foreign workers involved and the number of condition(s) breached, the maximum AMP that ESDC and/or CIC can impose is $1,000,000.00 for a breach.  As well, the total AMPs imposed on a single employer cannot exceed $1,000,000 in the one-year period preceding the date of the final determination. As well, ESDC will allow employers to enter into payment agreements where an employer cannot pay the AMP immediately in one instalment.

There is no limitation on the collections period for AMPs, and new LMIA and work permit applications will not be accepted if an employer has not paid an AMP or is not complying with a payment agreement if one has been entered into.

Justification and Voluntary Disclosure

The Government of Canada’s amendments specify in legislation that the purpose of the new regime is to encourage compliance with the TFWP and IMP, and not to punish employers. As such, non-compliant employers will not face bans or monetary penalties where the non-compliance was the result of good faith or unintentional errors in interpretation, accounting, or administration.

As well, if the employer voluntarily discloses non-compliance, then ESDC, at an officer’s discretion, may reduce the number of points, depending on the circumstances.

Best Practices

The Government of Canada’s amendments state that the AMP and new fine regime will not apply to non-compliance that occurred before December 1, 2015.  ESDC has also published an Employer Compliance Guide which contains best practices for complying with the TFWP.  All employers of foreign workers in both the TWFP and the IMP should read this guide.

The Employer Compliance Guide is for the most part a summary of existing policy.  However, it does clarify for the first time when raises to foreign workers will result in non-compliance.  In brief, pay increases resulting from good performance or pay increments that are greater than 2% or the rate of inflation will only be acceptable if this was advertised as part of the employer’s recruitment efforts and the increases apply to all employees working in the same occupation.

More information about the new AMP and ban regime can be found here.

The Employer Compliance Guide can be found here.

We have reproduced the internal ESDC Inspections Manual here:

Please contact us if you have any questions or concerns about these changes.