Proposed Changes to Temporary Foreign Worker Program Compliance

Proposed Changes to Temporary Foreign Worker Program Compliance

25th Sep 2014 Comments Off on Proposed Changes to Temporary Foreign Worker Program Compliance

On September 24, 2014, the Ministry of Economic and Social Development Canada (“ESDC“) posted on its website a discussion paper titled “Regulatory proposals to enhance the Temporary Foreign Worker Program and International Mobility Program compliance framework.”  ESDC appears to recognize that the existing legal authority to ban a non-compliant employer for two years and revoke associated Labour Market Impact Assessments (“LMIA“) may be too severe in some circumstances and not severe enough in other cases.  As such, the Government of Canada is proposing to introduce some compliance activities that are preventative and educational in nature, and others where the penalty for non-compliance is more severe. Specifically, ESDC is proposing to expand the range of bans from two years to include one, five, and ten year bans.

As will be seen below, however, there appears to be alot more “stick” than “carrot” in ESDC’s approach.

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The Canada-Korea Free Trade Agreement

23rd Sep 2014 Comments Off on The Canada-Korea Free Trade Agreement

On September 22, 2014, Canadian Prime Minister Stephen Harper and South Korean President Park Geun-hye signed the Canada-Korea Free Trade Agreement (“CKFTA“).  Chapter 12 of the CKFTA provides for the facilitation of the temporary entry of business persons.  The CKFTA Final Agreement Summary notes that South Korea’s commitments are the most ambitious the country has ever negotiated in a free trade agreement.  For Canada, the CKFTA’s temporary entry provisions are pretty similar to those contained in the North American Free Trade Agreement (“NAFTA“), although there are differences.

The CKFTA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under the CKFTA do not require Labour Market Impact Assessments (“LMIA“).  Indeed, as the CKFTA Final Agreement Summary states:

When it comes to investing and providing services, there is no substitute for being on-site, where clients are located. Investors want to witness their investments, talk to their partners and get a feel for the local environment. Professionals, including architects, management consultants and engineers, need to contact clients on-site in order to fulfil contracts in the South Korean market.

Temporary-entry provisions in the Canada-Korea Free Trade Agreement address barriers that business persons face at the border, particularly by eliminating the need to obtain a labour market opinion and/or economic needs test. The Agreement will establish new preferential access to our respective markets and facilitate greater transparency and predictability for the movement of business persons between Canada and South Korea. The Agreement’s temporary-entry provisions complement commitments taken in the area of services, investment, goods and government procurement.

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA,

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The ICCRC Disciplinary Process [Updated 13/09/14]

10th Sep 2014 Comments Off on The ICCRC Disciplinary Process [Updated 13/09/14]

Two days ago I met with an individual who claimed to have received horrible treatment from two separate immigration consultants in Metro Vancouver.  The specific alleged deplorable actions included that:

  • Consultant A refused to give the individual her Visitor Record until she paid him $2,000.00.
  • Consultant A refused to provide her with a BC PNP refusal letter, and to this day has not provided a copy of the refusal letter.
  • Consultant B refused to submit a response to a BC PNP fairness letter without receiving a large payment that was not mentioned in the retainer agreement.
  • Consultant B refused to meet with her once the application was refused.

Both of these consultants are licensed consultants and members of the Immigration Consultants of Canada Regulatory Council (“ICCRC“).  I recommended that the individual file complaints against both consultants.  Unfortunately, my recommendation came with the caveat that to my knowledge the ICCRC has not once yet disciplined a single consultant against whom a complaint was filed.

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The Right to Counsel at the Port of Entry

2nd Sep 2014 Comments Off on The Right to Counsel at the Port of Entry

Section 10(b) of the Canadian Charter of Rights and Freedoms provides that:

10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right; and

In the immigration context, the right to counsel does not arise at most secondary examinations, unless the person is actually arrested or retained.

As such, the Canada Border Services Agency’s (“CBSA“) general policy is not to permit counsel at examination if detention has not occurred. In practice, officers will often waive this policy if they are satisfied that legal representatives will not interfere with the examination process.

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