All employers of temporary foreign workers in Canada need to understand how the employer compliance regime works. Both Immigration, Refugees and Citizenship Canada (“IRCC”) as well as the Department of Employment and Social Development (“ESDC”) regularly audit and inspect the employers of foreign workers to make sure that they are complying with the Temporary Foreign Worker Program and/or the International Mobility Program (which are the two main programs through which foreign nationals can work in Canada). Both ESDC and IRCC have indicated that about 25% of employers can expect an inspection in any given year. Most of these inspections and audits start with the employer receiving a letter from the Government of Canada informing them that they will be examined on a multitude of factors, including whether they have employed the foreign national in the job that they were supposed to, whether they paid the wages that they were supposed to, whether the employer complied with laws regulating employment, whether they maintained records and whether they took reasonable efforts to provide a workplace that was free of abuse. I have embedded below the standard employer compliance letter that is sent out at the start of an audit. Consequences of Non-Compliance There … Read More
LMIAs – Mergers & Acquisitions
Where there is a corporate restructuring, merger or acquisition, the holder of a Labour Market Impact Assessment (an “LMIA”) should contact the Department of Employment and Social Development Canada (“ESDC”) to inform them of the change. Whether a new LMIA will be required will depend on a variety of factors, including whether the corporate restructuring, merger or acquisition impacts the prevailing wage, job description and job duties of a foreign worker. As per the internal ESDC wiki, reproduced below, in cases where employer’s responsibilities are transferred to a different employer through a merger or acquisition, both the original and successor employer must provide details on when the responsibilities of the employer were transferred, and the successor must agree (and acknowledge in writing) to all conditions set out in the original LMIA. Generally, a new LMIA would not be required. A new LMIA would be required if the acquisition resulted in changes to the job duties or description. In addition, if the officer has serious concerns regarding the genuineness of the new employer, they may require the new employer to submit a new LMIA application and pay the required fees. Further guidance can be found here:
LMIA Language Requirements
The application for a Labour Market Impact Assessment (“LMIA”) asks: Employers should generally be counselled against stating that an offer of employment requires the ability to communicate in a language other than English or French.
Labour Market Impact Assessments – The Genuiness and Actively Engaged Factors
Section 203(1)(a) of the Immigration and Refugee Protection Regulations (“IRPR“) requires Service Canada to only issue a positive Labour Market Impact Assessment (“LMIA“) when it is satisfied that an employer’s job offer is genuine. The IRPR lists several specific factors which Service Canada officers must consider in a genuineness analysis. The Genuineness Factor In addition to regulation 203(1)(a) of the IRPR, regulation 200(5) of IRPR provides that: 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 that is actively engaged in the business in respect of which the offer is made, unless the offer is made for employment as a live-in caregiver; (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 fulfil; 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. … Read More
The Global Talent Stream
On June 12, 2017 Canada’s Department of Employment and Social Development introduced the Global Talent Stream. Companies applying for workers through the Global Talent Stream have access to a streamlined Labour Market Impact Assessment process that provides eligible employers with: priority processing of applications for the Global Talent Stream and a client-focused service for the development of the Labour Market Benefits Plan, with a service standard of 10 business days that is expected to be met 80% of that time; flexible recruitment requirements; and elgibility for workers to have their work permits processed in 10 business days by Immigration, Refugees and Citizenship Canada. Category A and B Employers Employers are eligible for the Global Talent Stream if they are hiring unique and specialized talent and if that talent has bent referred to the Global Talent Stream by one of ESDC’s designated partners. The list of designated referral partners for the Global Talent Stream includes the following organizations: Pan-Canadian Business Development Bank of Canada Council of Canadian Innovators Global Affairs Canada’s Trade Commissioner Service Innovation, Science and Economic Development Canada – Accelerated Growth Service Invest in Canada National Research Council – Industrial Research Assistance Program (NRC-IRAP) Privy Council Office, Special Projects … Read More
Owner Operator LMIAs
One of the less understood recruitment exemptions in the Labour Market Impact Assessment stream is the exemption for Owner / Operators of a business. The Employment and Social Development Canada website states: Category: Owners/Operators Description: The owner/operator must demonstrate that he is integral to the day-to-day operation of the business and will be actively involved in business processes/service delivery in Canada. In such instances, greater consideration should be given to demonstration by the applicant (owner/operator) that such temporary entry will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and permanent residents. Variation: No advertising or recruitment is required. Applicability: All Provinces The Temporary Foreign Worker Program Manual previously stated: The ESDC wiki states: The wiki makes it clear that the following key conditions apply to Owner / Operator LMIAs: ESDC must be satisfied that the foreign national is or will be a principal owner or co-owner of the business in Canada. The company must prove the foreign natinoal’s shareholdings. [redacted] When assessing labour market factors, the focus is on job creation/retention and/or skills transfer. For co-owners, the focus is on job creation / retention and/or skills transfer. For High-Wage … Read More
Original Signatures, Digital Signatures and Copies of Signatures
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. In the Family Class, IRCC has confirmed that applicants should double check the document checklist to determine which forms require original signatures, and for which forms a copy is ok.
Labour Market Impact Assessments- Prevailing Wage
In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area. The prevailing wage is set by Employment and Skills Development Canada (“ESDC“)/Service Canada. It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.
Refusal to Process a Labour Market Impact Assessment
A Labour Market Impact Assessment (a “LMIA“) is an assessment by the Department of Employment and Social Development Canada (“ESDC“) that the hiring of a foreign worker will have a positive, neutral or negative impact on Canada’s labour market. An LMIA is often a requirement to hire a foreign worker. There are certain situations in which ESDC will refuse to issue a LMIA. This effectively precludes employers from utilizing the Temporary Foreign Worker Program (the “TFWP“). The Sex Industry Regulations 183(b.1) and 196.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) provides that temporary residents are prohibited from entering into an employment agreement, or extending the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages. Regulation 200(3)(g.1) of the IRPR further provides that work permits cannot be issued to workers who intend to work for employers who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages. Because of this, ESDC will not issue LMIAs to employers who regularly offer services in the sex industry (striptease, erotic dance, escort services or erotic massage). Ineligilibity List Employers who hire temporary workers may be inspected to … Read More
LMIAs and Labour Disputes
Section 203(3)(f) of the Immigration and Refugee Protection Regulations states an assessment provided by the Department of Employment and Social Development (“ESDC”) with respect to the whether the entry of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada shall be based, in part, on whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress of the employment of any person involved in the dispute. ESDC policy is short on this matter, and states that employers should not use the Temporary Foreign Worker Program to circumvent a legal work stoppage or to influence the outcome of a labour dispute. A labour dispute is defined as occuring when the parties to a collective agreement have reached an impasse in their efforts to enter into, renew or revise a collective agreement and require the intervention of a third party (e.g., government labour officials) to resolve the differences. It does not include all grievances between a union and employer. Labour disputes, which often arise during collective agreement/contract negotiation between an employer and a union, may include: work stoppage, strikes, refusal to work, picketing, lockouts, etc. They … Read More