Special to The Post
The spring and summer have been busy ones for Jason Kenney, Minister for Employment and Social Development. In early April he announced the first businesses blacklisted for breaching the Temporary Foreign Worker Program. The media blitz that followed led to the complete shut down of the program for the food and beverage industry. A few weeks later an entirely new Temporary Foreign Worker Program was introduced, changing the rules of the game completely and severely limiting the foreign worker program. The changes to Canada's Temporary Foreign Worker Program (TFWP) are significant and all employers who have a need for foreign labour need to know the new rules of the game.
The Conservative government has been busy transforming Canada's immigration program for the past several years. Concerned about ongoing abuses in the TFWP, in August 2010 they introduced strict new compliance measures for employers that took effect on April 1, 2011. These new provisions included publicly blacklisting employers who were in breach of their obligations, cancelling the work permits for any foreign workers that they currently employed, and denying them access to the program for a period of two years.
It took the government three years to finally identify the first blacklisted employers, whose names were published the first week of April 2014. A media frenzy ensued and within a matter of days Minister Kenney froze the TFWP to the food and beverage industry. When he re-opened the program a few weeks later, he did so by completely altering the entire program for all businesses in Canada.
Key elements of the revised TFWP include:
Labour Market Opinions( LMOs) based upon National Occupational Classification (NOC) descriptions to identify high skilled and low skilled occupations are eliminated. There are now two distinct programs:
1. LMIA - The Labour Market Impact assessment replaces the LMO stream. This program is run by Employment and Social Development Canada (ESDC) and focuses primarily on labour market considerations.
2. IMP - The International Mobility Program is run by Citizenship and Immigration Canada (CIC) and is largely based upon international agreements such as NAFTA, GATS and international youth mobility agreements.
The LMIA replaces the LMO, and the distinction between high skilled and lower skilled occupations is now based upon the provincial or territorial median wage rate rather than a NOC classification. An employer who pays a wage lower than the median wage rate falls into the low skilled category which has greater limitations than high skilled occupations.
The program also limits the use of low skilled workers based upon regional rates of unemployment. If the unemployment rate is more than 6% then no LMIAs will be issued for low skilled workers. Work permits for low skilled workers will only be issued for one year at a time and there is a limit of two years for low skilled workers to be in Canada cumulatively. For higher skilled positions, employers have to provide transition plans demonstrating their ongoing efforts to transition Canadian permanent residents or citizens into the required positions or transitioning their foreign workers into permanent residents.
Changes for employers include increased record keeping, inspections and enforcement, and for breaches of the program, increased fines and penalties. Employers are required to maintain all records for six years, and those who are in violation of the program can face up to $100,000 in fines and up to 5 years in jail. There are also increased application fees - from $275 per employee to $1000.
The message to employers is very clear - limit your use of temporary foreign workers and be sure that you are in strict compliance of all aspects of the program.
Catherine Sas, Q.C. is a Partner in the Immigration group. With over 20 years of experience, she provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to www.canadian-visa-lawyer.com or email firstname.lastname@example.org.