The Temporary Foreign Worker Program (TFWP) has undergone major changes. On April 1, 2011, amendments to the Immigration and Refugee Protection Regulations (IRPR) came into force changing the TFWP in three major areas:
1. Job offer made to Temporary Foreign Worker (TFW) will be assessed for genuineness
2. Compliance by the employer with terms of previous employment offers to TFWs
3. A four-year cap on the eligibility for TFW Work Permits
The purpose of these regulatory changes is to implement stricter employer accountability mechanisms, protect TFWs from exploitation, and emphasize that TFWs are employed on a temporary basis. As a result, the new Regulations have a strong focus on compliance and feature, for the first time ever, denial of service provisions.
The new TFWP authorizes government officers to formally assess the genuineness of the job offer to the TFW. The factors that determine whether a job offer is genuine are explicitly set out in the Regulations:
- the employer’s active engagement in the business
- the reasonable employment needs of the employer;
- the ability of the employer to reasonably fulfill the terms of the offer; and
- the employer’s compliance with the applicable federal and provincial employment laws
Government officers will also be looking back two years from the date of the application and reviewing the employer’s previous employment of TFWs. Specifically, employers will be expected to have provided former TFWs with “substantially the same” wages, working conditions and occupation as set out in the offers of employment. This could include a comparison of the job title, employment responsibilities, work location and bonuses set out in the job offer and what the employer actually provided to the TFW.
Employers who have not complied with the terms of employment with TFWs are given the opportunity to rectify the situation. Those who are unable to do so face serious consequences. The names and addresses of these employers are added to a list published on the Citizenship and Immigration Canada website, and barred from hiring TFWs for a two-year period. At this time, there is no appeal mechanism for employers placed on this list. Further, TFWs hired by employers on the list may lose their temporary resident status.
The assessment of the genuineness of the job offer to a TFW and the employer’s compliance with the terms of past TFW job offers can be conducted by three different government agencies:
– Human Resources and Skills Development Canada when issuing a Labour Market Opinion;
– Citizenship and Immigration Canada when issuing a Work Permit; and
– Canada Border Services Agency at the Port-of-Entry.
The new Regulations also emphasize that TFW employment is temporary in nature by setting a cumulative maximum duration of four years of work for TFWs. Once a TFW has reached this limit, a new Work Permit will not be issued unless a four-year period has elapsed since the TFW reached the cap, the work would have a significant benefit to Canada or the work is pursuant to an international agreement. Legitimate breaks from work such as extended unpaid leave, parental leave or periods of unemployment do not count towards the limit. Calculation of the four-year cap begins on April 1, 2011.
Certain TFWs are exempted from the cumulative four-year cap, including:
– TFWs employed in managerial or professional occupations (NOC 0 or A)
– TFWs who have applied for Permanent Residence and have received a nomination under a Provincial Nominee Program or a positive selection from the Federal Skilled Worker or Canadian Experience Class; and
– TFWs who do not require Labour Market Opinions for their Work Permit.
Tips for employers to comply with the new TFWP regulations:
1) Emphasis on record keeping: employers should keep complete and accurate records regarding their TFWs and the terms of their employment.
2) Centralized control for TFW hiring: a consolidated system for hiring TFWs simplifies record keeping and improves response time to regulatory inquiries.
3) Pre-emptive notification: employers should notify Citizenship and Immigration Canada of any changes regarding employment of TFWs to ensure compliance.