October 2, 2015 – Green and Spiegel has been advised that increased compliance and enforcement of both the Temporary Foreign Worker Program (TWFP) and the International Mobility Program (IMP) is now underway.
While public attention has tended to focus on the TFWP, employers should be aware that compliance and enforcement action will affect both programs, and will also include enforcement of the LMIA-exempt compliance form IMM5802.
The IMP includes those employees who are transferred to Canada via Intra-Company Transfer as well as employees working in Canada pursuant to free-trade agreements such as NAFTA. Form IMM5802 is the new compliance form implemented in February 2015 requiring employers of LMIA-exempt foreign nationals to make certain attestations about their employee and pay a compliance fee.
As part of reforms to both programs announced earlier this year, and in advance of the coming into force of a regime of Administrative Monetary Penalties on December 1, 2015, Employment and Social Development Canada (ESDC) has increased the use of both compliance reviews and random inspections to ensure that employers are complying with program requirements. ESDC has set a target of conducting a compliance review, or an inspection, of 1 in 4 employers who use either the TWFP or the IMP.
Compliance reviews and inspections may cover all aspects of both programs, including recruiting efforts, transition plans, wages, job duties and working conditions, and any other information or claims with respect to program eligibility or program requirements.
All employers of foreign national should take steps now to ensure they are compliant with program requirements and to prepare for a possible compliance review and/or inspection.
Compliance Best Practices
Per ESDC, employers should do the following:
- Review all LMIA applications and supporting documentation
- Keep copies of LMIA applications and all supporting documentation for 6 years
- Work only with authorized third-party representatives
- Inform ESDC immediately of any errors on the LMIA and annexes and keep track of when ESDC was informed
- Regularly self-audit and immediately correct incidences of non-compliance
- Make a voluntary disclosure of any incidences of non-compliance
- Keep records of all exchanges with Service Canada
- Keep well organized records relating to compliance with all TFWP conditions
- Contact ESDC in writing when considering any changes to LMIA, including even slight changes to job duties and wages
- Actively cooperate with ESDC during inspections
This elert is for informational purposes only and is not legal advice. If you have any questions, or require assistance in reviewing your mobility program or in making any voluntary disclosure, please contact Green and Spiegel.