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Important Changes to Canada's Temporary Foreign Worker Program

07-Apr-11

By Brian DeMong, Senior Immigration Advisor

In August 2010, the Government of Canada announced that a sweeping overhaul of Canada’s Temporary Foreign Worker Program (TFWP) would be implemented April 1st of this year. It was not made immediately clear exactly what those changes would be. Following a news release March 24th on Citizenship and Immigration Canada (CIC)’s website entitled “New rules to strengthen the Temporary Foreign Worker Program”, we are now in a position to definitively report on these changes, the most significant in several years.

We believe the changes will, for the most part, improve Canada’s TFWP and place Canada in a better position to deal with the anticipated long term demographics-based labour shortage, already showing signs of starting in the West. The objectives of the modifications to the program are essentially to better protect temporary foreign workers from abusive employers and to address short-term labour and skills shortages. We are of the opinion that the changes will need to address long-term shortages as well as short-term ones.

One of the essential components of the regulatory amendments is to rigorously assess the authenticity of employment offers for employer specific work permits. Doing so is designed to both minimize fraudulent offers and to protect temporary foreign workers from employer exploitation and abuse, which we believe is predominantly problematic with smaller employers employing low skilled workers.

A second element of the new rules is the barring of employers from hiring temporary foreign workers when CIC has determined the employer has failed to meet its commitments regarding terms and conditions of employment. We are somewhat skeptical of CIC’s ability to implement their plan of blacklisting non-compliant employers on their website. However, if successful, it would almost certainly be a deterrent to temporary foreign worker abuse and have a detrimental effect on the offending employer’s reputation. Those employing temporary foreign workers should be aware of the fact that, although their mobility is restricted, temporary foreign workers are protected by the same labour and employment legislation and the Charter of Rights and Freedoms as Canadian workers are. As the human resource implications of non-compliance with these laws are significant, employers of temporary foreign workers are well advised to educate themselves accordingly.

Finally, the time limit for which temporary foreign workers can work in Canada, retroactive to April 1st, is four years. They must then leave Canada for four years before they can re-enter as a temporary foreign worker. This change is meant to emphasize the temporary nature of the foreign worker program. Most managerial, high skilled and/or Labour Market Opinion (LMO) exempt positions are excused from the four-year limitation. The increase of the limit from two to four years makes it more beneficial to apply for immigration through one of the economic classes, while working in Canada throughout the application process. In fact, with the ever increasing eligibility restrictions to apply for the Federal Skilled Worker Class without arranged employment, the evolution of Provincial Nominee Programs and the creation of the Canadian Experience Class, working in Canada first has now clearly become the most common step to facilitate immigration. This only serves to accentuate the importance of the TFWP in meeting your long term labour needs.

Service Canada has not been sitting idle while CIC has made changes. Employers submitting LMO applications need to know that the use of new LMO application forms became mandatory on April 1st. Applications submitted with the old forms will be rejected.

In another development of significant interest to Alberta employers, a three year Alberta Pilot Project for Occupation Specific Work Permits has been created by the Federal Government. It will allow temporary foreign workers in certain high-demand occupations, Steamfitters/Pipefitters being the only one identified so far, to be issued LMO-exempt one year work permits to work for a specific employer in Alberta. The foreign worker must have an approved application and approval letter for the Alberta Apprenticeship and Industry Training (AAIT) Qualification Program to apply for a work permit. Upon becoming certified, the worker may then apply from within Canada for a two year open (non-employer specific) work permit, facilitating mobility between Alberta employers in the specific occupation. This is certainly positive news for Alberta employers needing skilled labour.

This is only a brief overview of the changes to the TFWP. Employers of temporary foreign workers are well advised to review their internal policies and procedures and to be diligent in complying with federal immigration, labour, and employment laws.


 

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