Heading – Genuineness and Caregivers
On June 18, 2019 Immigration, Refugees and Citizenship Canada revamped its caregiver programs. Gone was the requirement that employers first obtain a Labour Market Impact Assessment and that caregivers work in Canada without their families for at least two years before they could apply for permanent residency. Instead, caregivers can now immediately apply for permanent residency if they have a job offer or Canadian work experience in an eligible caregiver occupation and if they meet minimum education and language proficiency requirements and come to Canada with their families right away.
The new caregiver programs have existed for about four months now and it is too early to determine whether they have been a success. An issue that has arisen, however, is the issue of employers and applicants demonstrating that their job offers are genuine.
How the New Caregiver Programs Work
Canada now has two caregiver programs. The first is the Home-Child Care Provider Pilot. The second is the Home Support Worker Pilot. A maximum of 2,750 applications are accepted per year under each stream. In both programs, applicants must demonstrate through standardized language testing that they have Initial Intermediate English or French ability, also known as Canadian Language Benchmark 5, and also that they have at least a one-year post secondary credential.
Applicants must also show that they have two years of full-time Canadian work experience as a Home Child-care Provider or a Home Support Worker, depending on the pilot. Applicants with fewer than two-years experience must show that they have a valid job offer as either a Home Child-care Provider or a Home Support Worker and that they will be able to perform the terms of their job offer in Canada. If they do, then the permanent residence application is put on hold and the applicant is issued an occupation-restricted open work permit. They then have three years to obtain 24 months of Canadian experience in their occupation.
A valid job offer must be for full-time employment from a single Canadian employer outside of Quebec in a home child-care provider or home support worker occupation.
In order to preserve program integrity, IRCC has posted guidelines and instructions for determining whether a job offer is genuine. Proof that a job offer is valid and genuine may include but is not limited to a genuine need by the employer for a caregiver (for example, proof of a child or a person with medical needs), whether the job pays the prevailing wage, whether the employer has the financial ability to pay the wages specified in the job offer, and, if the caregiver will be living at the employer’s residence, whether reasonable accommodations are provided.
These guidelines supplement existing Federal Court of Canada jurisprudence regarding the assessment of whether a caregiver position is genuine from the previous caregiver programs. For the most part, the jurisprudence dictates that assessments must be done in a holistic and almost common-sense manner. In Bondoc v. Canada (Citizenship and Immigration), 2008 FC 842, for example, Justice Legace noted that a full-time caregiver position from 9:00 – 5:00 was unlikely to genuinely be a caregiver position if children were in school from 8:30 – 4:00. In Liu v. Canada (Citizenship and Immigration), 2018 FC 954, meanwhile, Madam Justice McVeigh noted that the fact that an applicant does not have prior nanny or caregiver experience does not mean that a job offer is not genuine if there is reason to believe that the prospective caregiver can nonetheless perform the work.
It is worth noting that IRCC does not restrict the ability to hire caregivers to the wealthy, so long as families do have the ability to pay their caregiver. In one Federal Court of Canada decision, Magday v. Canada (Citizenship and Immigration), 2018 FC 1087 Justice Annis did state that the return of a low-income parent to work could be evidence of a lack of genuiness, as doing so would “contradict child rearing norms whereby parents would prefer that one of them stay at home to raise their young child, rather than the parent choose to work in a low-paying job that provides no financial gain if parenting duties are carried out by a live-in child care worker.” However, this approach has not been adopted.
The removal of the Labour Market Impact Assessment from the caregiver programs has certainly caused at least a few unscrupulous individuals to enter into fraudulent job offers designed primarily to facilitate immigration. IRCC’s visa officers are certainly on the look-out for such instances. However, prospective caregivers should know that the requirements are not unduly onerous, and that the new caregiver programs provide a much more flexible and facilitative way for caregivers to immigrate to Canada.