April 9, 2014 – Beginning on April 1, 2011 a temporary cap was imposed on many temporary foreign workers in Canada. This 4-year cap is cumulative, and was not applied retroactively. This means that the first date on which workers will have reached the cap – including any workers hired before the cap was imposed – is April 1, 2015. Any legitimate, documented breaks from work during any period covered by a work permit do not count towards the 4-year cap. Legitimate breaks from work must exceed one month and may include periods of unemployment, extended unpaid leave and parental leave.
Affected Temporary Foreign Workers
The 4-year cap applies to all temporary foreign workers, except:
- Those in managerial occupations (NOC-0) and professional occupations (NOC-A)
- Temporary foreign workers who have applied for permanent residency and received a certificate, approval in principal letter or positive selection decision (per required program)
- Temporary foreign workers employed under NAFTA or applicable international agreements
- Temporary foreign workers exempt from the Labour Market Opinion (LMO) process
Employees covered by the 4-year cap should take steps now – such as applying for permanent residency or securing work in an exempt category, if eligible – if they wish to remain in Canada. Employees who reach the 4-year cap and are not covered by an exemption will be required to leave Canada and will not be granted another work permit in Canada for an additional four years.
All temporary foreign workers should keep thorough records that document their time spent working in Canada, including any documented breaks from work. Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) officers may request this documentation.
Employers who rely on temporary foreign labour will want to begin planning now to avoid any labour disruptions. LMOs that propose work past April 1, 2015 will be reviewed to ensure that the foreign worker is eligible for the full duration of the proposed work period. Even if the LMO is new, if the employee was previously employed under a work permit by another employer, they will only be eligible to stay in Canada for a total of 4-years.
Employers should review the status of each of their temporary foreign workers to:
- Determine if they are affected
- Review their options for staying in Canada
- Consider new LMO applications in order to replace temporary foreign workers who will reach the cap and who are not eligible to remain in Canada
Employers and temporary foreign workers should allow for ample time to file new applications and documentation as processing times at different government offices are dependent on volume and staffing and cannot be guaranteed.
For further information or for answers to any of your questions, please contact Green and Spiegel.