Apr 29, 2014
Stephen Green published in AILA's "Global Migration Digest"
May 9, 2014 ? It?s been two weeks since the Minister of Employment and Social Development Canada imposed a moratorium on the Food Services Sector?s access to the Temporary Foreign Worker Program in response to allegations that the program was being abused in order to displace Canadian workers. At the same time the Minister announced a comprehensive review of the program and indicated that the moratorium would remain in effect until the review is complete.
That announcement immediately prompted questions about the breadth of the moratorium and its implications for employers and workers across Canada. Below you will find answers to some of the more common questions about the moratorium and what it means for you.
Which establishments are affected?
All establishments whose primary purpose is to serve food and drink are covered by the moratorium. This includes all restaurants, bars, food preparation operations and caterers. The moratorium covers all food service staff including servers, bartenders, kitchen staff, cleaners, security personnel, as well as management and supervisor roles.
Does this include hotels?
No. Hotels that operate Food Service Establishments are not affected by the moratorium. That said, any Food Service Establishment operated by a third party on leased premises inside a hotel is covered by the moratorium.
What does this mean for outstanding Labour Market Opinions (LMO)?
All outstanding Labour Market Opinions for positions that have not yet been filled are suspended. No new Labour Market Opinions for the Food Services Sector will be processed or issued.
All Labour Market Opinions for jobs for which a work permit has already been issued are unaffected.
What does this mean for workers coming to Canada on LMO-related work permits?
Foreign Nationals already holding valid work permits in connection with a positive Labour Market Opinion are not affected by the moratorium.
No new work permits will be issued in connection with outstanding Labour Market Opinions in the Food Services Sector. If you are a foreign national who has not yet received your work permit in connection with a positive Labour Market Opinion, your work permit application will not be processed and no work permit will be issued until the moratorium is lifted.
What happens when my work permit expires?
Because a valid Labour Market Opinion is required in order to issue a work permit, all applications for work permit extensions in connection with impacted Labour Market Opinions are also suspended.
If you are currently in Canada on a valid work permit in connection with a positive Labour Market Opinion in the Food Services Sector it is imperative that you seek informed guidance on your options prior to the expiry of your work permit. In some circumstances, individuals who apply for a work permit extension prior to the expiry of their present work permit may have implied status and may be able to remain in Canada until such a time as a decision is made on their work permit extension application.
How long will the moratorium be in effect?
The Minister has indicated that the moratorium will be in effect until the review of the Temporary Foreign Worker Program is complete. Even after the program review is complete, the Food Services Sector may continue to be impacted by program restrictions, and other sectors may face new restrictions, based on the outcome of the review.
What should employers do?
Employers that hire Temporary Foreign Workers should begin assessing their options now prior to the expiry of any work permits and resulting suspension of any positive Labour Market Opinions. While the moratorium is temporary ? pending the outcome of the review ? there is no guarantee that access to the program will be fully restored. Modified access or further restrictions may continue to affect the Food Services Sector and may be expanded to cover other sectors. Careful planning now will go a long way towards mitigating any labour disruptions.
What should work permit holders do?
Foreign nationals currently in Canada on work permits in connection with positive Labour Market Opinions should seek qualified assistance in reviewing their options prior to the expiry of their work permit. In some cases, it may be possible to take steps that will allow an individual to maintain their status. Further, qualified individuals should consider their options for permanent residency as this will prevent them from being impacted by further program restrictions in future.
Green and Spiegel will continue to provide you information as it becomes known to us. Should you have any questions or wish to discuss your particular circumstances, please contact us.