Canada: New Immigration Compliance Requirements and Ramped Up Enforcement Measures

Citizenship and Immigration Canada (“CIC”), in cooperation with Human Resources and Skills Development Canada (“HRSDC”) and the Canada Border Services Agency (“CBSA”), has developed dramatic amendments to the Immigration and Refugee Protection Regulations that took effect on April 1, 2011. Among the significant regulatory changes are the following:

1.  The Temporary Foreign Worker Program (“TFWP”) has been amended to clarify the process for and establish the factors to be considered in assessing the genuineness of all offers of employment.

The new regulations provide a set of criteria by which immigration officers may assess the “genuineness” of an employment offer. The amended regulations also clarify that genuineness will be assessed in all offers of temporary employment — both Labour Market Opinion (“LMO”) and LMO-exempt — where an employer-specific work permit, as opposed to an “open” work permit, is required.

Currently, there are no established factors by which an immigration officer may consider the authenticity of a temporary employment offer. However, before an officer can issue a work permit, he or she must be satisfied that there is an actual job opportunity for the applicant, that the employer is able to employ the applicant, and that the applicant is qualified and able to fill the proffered position.

Making a determination that a temporary employment offer is “genuine” hinges on the following factors:

• Whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
• Whether the offer is consistent with the reasonable employment needs of the employer;
• Whether the terms of the offer are able to be reasonably fulfilled by the employer; and
• Consideration of the past compliance of the employer with federal or provincial laws that regulate employment in the province in which it is intended that the foreign national work.

2.  Noncompliance will subject an employer to a two-year period of ineligibility to access the TFWP, as well as public notice of such ineligibility.

If it is determined that an offer of employment is not substantially the same (i.e., where an employer has been found to have provided significantly different wages, working conditions, or occupational duties than what was represented in the application), the employer will be subject to a two-year bar from the ability to participate in the TFWP. Hence, under this provision the employer could be precluded from hiring any foreign nationals in Canada for a period of two years.

In determining whether the bar will apply to a particular employer, the assessment would be undertaken at the time of the application or request and take into account any employment of temporary foreign workers in the immediately preceding two years. In addition to being barred from use of the TFWP for the next two years, the employer’s name, address, and period of ineligibility to access the TFWP would be posted on CIC’s external website for public viewing.

Please note that this determination of ineligibility will be made by the officer processing the application. Thus, decisions affecting an employer’s very ability to participate in the TFWP may be made according to the discretion of one immigration officer.

3.  Work permits, with certain exceptions, will be issued for a maximum of four years in duration, followed by a period of four years in which the temporary foreign worker will not be authorized to work in Canada before a subsequent work permit could be issued.

Temporary work permits in Canada will only be issued for four years and will be truly “temporary” in nature. Once the four year maximum is reached, the foreign worker will be prohibited from seeking an extension or subsequent work authorization for a period of four years. The exceptions to this rule are: (1) for foreign workers who perform work pursuant to an international agreement between Canada and one or more countries, such as NAFTA and GATS; (2) for foreign workers whose work will create significant social, cultural, or economic benefits or opportunities for Canadians or permanent residents (intra-company transfers for non-NAFTA nationals); (3) foreign nationals seeking to work in managerial (NOC O) or professional (NOC A) occupations; and (4) foreign nationals who have applied for permanent residence and who have received a positive assessment in the permanent resident category in which they have applied. Once the four-year cap limit has been reached, the temporary foreign worker will not be required to leave Canada, provided that he/she can maintain legal status in Canada. However, he/she will not be authorized to work until the subsequent four-year period has elapsed.

It is important to note that the four-year limit will only take into account periods of time actually worked in Canada. If there are breaks in work due to a legitimate reason, such as maternity leave, sick leave, or absences from Canada, this time can be “recaptured” as long as there is appropriate evidence to support the break in work activity.

4.  Established expiration dates for LMOs

HRSDC will be required to establish a period of time during which an LMO is in effect. The impact of such an expiration date will require employers to apply for a work permit for an employee within a specific time period or the employer would be required to request a new LMO.

What You Can Do to Prepare

These changes recently took effect on April 1, 2011 and it remains to be seen how strictly these regulations will be interpreted by immigration officers. However, there are ways that employers can prepare themselves:

• Employers should conduct a review of all Canadian work permits granted on or after April 1, 2009 to ensure that wages, working conditions, and occupational duties remain as they were represented in the original application. An amendment to the work permit application may be required;
• Employers should prepare their Human Resources and administrative departments for the possibility of a site visit and audit of personnel files by immigration officials;
• Employers should set up an internal process through which they could identify employees traveling to Canada so as to avoid problematic situations at the border;
• Employers should speak with all employees who will be interviewed by an immigration officer at any Canadian port of entry to ensure that the employee understands the information contained in the work permit application and the manner in which he or she should present it.
• For employees who are subject to the four-year limit on work authorization, it is crucial to track time actually spent working in Canada. All periods of time not working in Canada may be “recaptured” to extend work authorization beyond the four-year maximum if appropriately documented. Appropriate documentation includes excel spreadsheets tracking exit and entry dates to Canada, boarding passes, travel itineraries, visa stamps, etc.

Please contact any member of our Canadian immigration team — led by attorney Jean-Noël Ben Hamou — at Seyfarth Shaw LLP if your company requires assistance with its Canadian immigration matters.

Seyfarth Shaw LLP will present a national webinar at a later date to address the impact of the regulatory changes as they unfold over the coming months.