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.Read more ›
One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.
As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns. However, there will be a right to respond under certain circumstances.
Requirement to Provide Complete Applications
Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.
In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.
As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents.Read more ›
Regulation 186(s) of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) regulates when crew members are permitted to work in Canada without first obtaining a work permit. The Regulations state:
R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that
(i) is foreign-owned and not registered in Canada, and
(ii) is engaged primarily in international transportation
Immigration, Refugees and Citizenship Canada (“IRCC“) has published helpful guidance as to how this Regulation is to be interpreted (the “Guidelines“).
What is a Member of a Crew
As per the Guidelines, on a cruise ship, crew members include:
- licensed officers: master, first officer, chief officer or chief mate, first engineer or chief engineer, and subordinate officers and engineers;
- non-licensed crew: ordinary seamen, able-bodied seamen, bosun (deck crew foreman), engine- room crew (oilers and fitters), and kitchen and mess-room staff (cooks, stewards and messmen); and
- the hotel manager, cruise director, purser, medical staff, managers and staff of the ship’s bars, restaurants, boutiques and casino, as well as house-cleaning staff and entertainers.
Crew members do not include:
- supernumeraries: spouses, children and other dependants of crew members;
- foreign contractors and shipping company technicians: foreign nationals temporarily assigned to a vessel for the sole purpose of making repairs;
- shipping company superintendents, including persons referred to as supercargo, superintendent engineers, or port captains;
- employees or executives of a marine transportation company who travel aboard or who visit ships to monitor or supervise operations such as maintenance and repairs, preparation of cargo holds,
The Post-Graduation Work Permit (“PGWP“) allows students who have graduated from most Canadian public post-secondary institutions to stay and work in Canada upon graduation. As someone who remembers when I was in undergrad the frustration of international students who had to leave Canada upon graduating even though they would have jumped at the opportunity to stay, work, and pay taxes in Canada, it is certainly a welcome program.
PGWPs are open work permits. This means that international graduates who possess them can work for any employer. There is no restriction on the type of work that can be performed. Having said that, if a student wishes to work in health care or in education they will need to first obtain a medical exam. And, as with all work permits, PGWP holders are prohibited from working in the sex industry.
There is no requirement for a job offer prior to applying.
Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:
- have a valid study permit when applying for their PGWP;
- have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
- have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
- apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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