Changes To Temporary Foreign Worker Program

On April 1, 2011, new regulatory changes came into effect that will significantly impact temporary foreign workers and the companies that want to hire them.  If you are an employer who currently employs or is interested in employing temporary foreign workers then you need to be aware of these changes.

The changes include:

  • Assessing the genuineness of a Temporary Foreign Worker;
  • Live-in-Caregiver Changes;
  • The Employer Blacklist;
  • Time limits for temporary foreign workers; and
  • Labour Market Opinion Changes.

Establishing a set of factors to guide the assessment of the genuineness of an employer’s offer of employment to a temporary foreign worker.

The changes introduce a new s. 200(5) of the Regulations, which reads:

Genuineness of job offer

(5) A determination of whether an offer of employment is genuine shall be based on the following factors:

(a) whether the offer is made by an employer, other than an employer of a live-in caregiver, that is actively engaged in the business in respect of which the offer is made;

(b) whether the offer is consistent with the reasonable employment needs of the employer;

(c) whether the terms of the offer are terms that the employer is reasonably able to fulfill; and

(d) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

Establishing certain employer-related requirements for live-in caregivers.

Section 203(1)(d) of the Regulations will now read:

203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, if

(d) in the case of a foreign national who seeks to enter Canada as a live-in caregiver,

(i) the foreign national will reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in that household without supervision,

(ii) the employer will provide adequate furnished and private accommodations in the household, and

(iii) the employer has sufficient financial resources to pay the foreign national the wages that are offered to the foreign national; and

Creating an Employer Black List

Perhaps most importantly, the changes will make an employer ineligible to access the Temporary Foreign Worker Program (“TFWP“) for a period of two years where the employer has been found to have provided wages, working conditions, or an occupation that was not substantially the same as what was offered during the previous employment of a temporary foreign worker.  The changesalso provide for the publication of a list with the names, addresses and period of ineligibility of employers who are not eligible to access the TFWP for the reasons noted above on Citizenship and Immigration Canada’s external Web site, in order to inform foreign nationals as to which employers are not eligible to hire TFWs.

Section 203 of the Regulations will now read:

203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, if

(e) during the period beginning two years before the day on which the request for an opinion under subsection (2) is received by the Department of Human Resources and Skills Development and ending on the day on which the application for the work permit is received by the Department,

(i) the employer making the offer provided each foreign national employed by the employer with wages, working conditions and employment in an occupation that were substantially the same as the wages, working conditions and occupation set out in the employer’s offer of employment, or

(ii) in the case where the employer did not provide wages, working conditions or employment in an occupation that were substantially the same as those offered, the failure to do so was justified in accordance with subsection (1.1).

Justification

(1.1) A failure referred to in subparagraph (1)(e)(ii) is justified if it resulted from

(a) a change in federal or provincial law;

(b) a change to the provisions of a collective agreement;

(c) the implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the business of the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;

(d) an error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;

(e) an unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error; or

(f) circumstances similar to those set out in paragraphs (a) to (e).

Capping the Time that a Person Can be a Foreign Worker

The changes establish a limit of how long someone can be a foreign worker at four years of work for temporary foreign workers, followed by a period of at least four years in which they may not be authorized to work in Canada. An exception will exist for international agreements.

Labour Market Opinion Changes

The changes also will introduce a provision clarifying that Human Resources and Skills Development Canada will indicate a period of time during which a Labour Market Opinion is valid. If a temporary foreign worker does not obtain a work permit within this time period, then the employer must request a new Labour Market Opinion.


From Foreign Worker to Permanent Resident

According to the Calgary Harold, on July 20, Thomas Lukaszuk, the province’s employment and immigration minister, had this to say about the temporary foreign worker program:

In my opinion, it was a program that had fulfilled its mandate, (by) suddenly providing a large number of workers to an economy that suddenly had a massive shortage of workers.

It’s not working well now. It’s a temporary solution to a permanent problem.

Lukaszuk goes on to note that many of the province’s temporary foreign workers want to stay beyond the duration of their work permit, however, because the temporary program is not supposed to be a gateway to long-term residency, the same employers keep on hiring new foreign workers for the same jobs.

Why not consider some permanency (for) this workforce. I always joke the only group that really benefits from the current temporary foreign worker program is Air Canada, because they’re flying people in and out

There are in fact several ways for a temporary foreign workers in Alberta to achieve permanent residence.  These include:

  • Applying for permanent residence under the Canada Experience Class.  This program is practically designed for temporary foreign workers. Indeed, CIC’s website introduces the program by saying “if you are a temporary foreign worker….”  To be eligible, the temporary foreign worker must have at least two years of full-time (or equivilant) work experience in a managerial, professional, or technical / skilled trades occupation, be proficient in either English or French, and currently be in Canada.
  • Applying under the Alberta PNP Program. According to the FAQ on the Alberta PNP website:

I have an employee who is a temporary foreign worker and I would like to retain him or her for a permanent position. Does the AINP accept applications for candidates who are temporary foreign workers?

Yes. The temporary foreign worker must be working in an occupation listed under the National Occupational Classification (NOC) Code in Skill Levels 0, A, B. In addition, some NOC C and D occupations are also eligible under the AINP. Please visit the Semi-Skilled Worker section of the website for information on eligible NOC C and D occupations.

Our firm constantly looks at ways of moving British Columbian  temporary foreign workers out of the “temporary” category and into the “permanent”.  My guess is that most Alberta law firms do as well, and temporary works in Alberta should know that there may be options for them to become permanent residents.