It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be.
Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP.
Breaches that Occurred Before December 1, 2015
It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same.
The Administrative Monetary Penalty Regime
Under IRCC’s AMP regime, employer non-compliance is divided into three types of violations.
Type A violations include where an employer:
- is unable to demonstrate that any information that it provided in respect of a foreign national’s work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
- did not retain document(s) that relates to employer compliance during a period of six years, beginning on the first day of the foreign national’s employment
- did not report at any time and place specified by IRCC to answer questions and provide documents during an IRCC inspection of the employer’s compliance with the IMP;
On February 11, 2015, the Government of Canada publicized amendments to the Immigration and Refugee Protection Regulations that affected most applicants in the International Mobility Program (the “IMP“).
The IMP includes all streams of work permit applications that are exempt from the Labour Market Impact Assessment (“LMIA“) process, including workers covered by free trade agreements, people participating in exchange programs like International Experience Canada (“IEC“), provincial nominees, intra-company transferees, post-graduate work permit holders, etc.
In reviewing the changes described below, it is important to understand the distinction between a closed work permit and an open work permit. A closed work permit limits a foreign worker to a particular employer. An open work permit allows the foreign worker to work for any employer.
- The changes consist of:
- Requiring that employers of prospective closed work permit holders in the IMP provide information to Citizenship and Immigration Canada (“CIC“) before their prospective employees apply for work permits;
- Requiring that employers of prospective closed work permit holders pay a $230.00 “employer compliance fee” per employee before their prospective employees apply for work permits; and
- Introducing a new $100.00 “privilege fee” on open work permit applicants.
The Government of Canada has announced that the above changes will all take effect on February 21, 2015.Read more ›