Federal Government Strictly Enforcing Temporary Foreign Worker Program Rules

The federal government is making it clear that businesses violating the rules of the Temporary Foreign Worker Program will have action taken against them.

Inspections of firms that employ temporary workers have increased significantly under the Liberals, as new powers – implemented in December 2015 – are enforced.

Those found not adhering to TFWP rules are subject to wide sweeping administrative money penalties (AMPs) of up to $100,000 per violation to a maximum of $1 million in any one-year period.

Employers can also be banned from using the program for one, two, five or 10 years, or permanently in the most serious cases.

The rules also apply to the International Mobility Program (IMP), a spin-off from TFWP which includes intra-company transfers and free-trade agreement work permit categories.

Banned employers are also ‘named and shamed’ on the federal government’s website.

The Steps to a Canadian TFWP Visa (each step is fully explained here)

• Determine if you require a work permit to work in your desired job in Canada
• Determine if you are eligible to apply for a Canadian temporary work permit
• Determine if you will apply online or on paper
• Obtain a positive Labour Market Impact Assessment (LMIA) from your potential employer, if required
• Obtain a temporary job offer from your potential employer
• Gather required documents and forms
• Pay fees
• Submit application

It means that employers wishing to use TFWP need to be extremely careful when navigating the process of bringing in a foreign worker using the program. Then, once the workers begin working, employers must be careful the rules are being strictly followed.

Violations can include not making enough effort to hire a Canadian to do the job, not being able to produce documents for inspection or making the temporary worker do a different job to the one initially offered.  Modifications to the position would constitute a change in terms and conditions which must be reflected on the worker’s documentation.

In the case of a live-in caregiver, the violations include not providing adequate accommodation. A full list of the violations is available here.

Employers Who Violated TFWP

(Source: Government of Canada website, here and here)

There were several high-profile cases of the program being abused under the previous Conservative government, leading to sweeping reforms being introduced in 2014.

The reforms created the IMP and raised the cost of a Labour Market Impact Assessment (LMIA) – the document needed to prove no Canadian is available to do the job – from $250 to $1,000.

Further changes saw caps put in place designs to eventually reduce the number of foreign workers to 10 per cent of a company’s workforce. This was slated to be introduced on July 1, but the Liberals stepped in at the last minute to keep the cap at 20 per cent.

As a result of the Conservative changes, the numbers of temporary workers in Canada were dramatically reduced, from almost 120,000 in 2013 to under 75,000 in 2015.

The 2014 changes also included the power to conduct random on-site inspections and compliance reviews, plus make employers hand over payroll records.

Where a preliminary finding of non-compliance is made, an employer has 30 days to respond.  Until a final determination is made, pending LMIA applications will be suspended.

A final determination is made after a review of all factors.  Where a negative finding is made (that does not result in a ban), employers cannot use the program until the AMP is paid or an agreement is reached.

Employers can appeal a decision via judicial review before the Federal Court.

Liberal Plans

The Liberal government plans to relax Conservative TFWP changes to try and find a middle ground, where the needs of employers are met with less room for the system to be abused.

Immigration Minister John McCallum has faced calls from a number of industries – including meat and fish processors and the hospitality sector – to be allowed to bring in more temporary workers.

These plans are expected to be announced in the fall.

The number of inspections so far in 2016 is more than 1,500, with experts suggesting this reflects a weak inspection regime, given only two employers have been added to the list of violators.

There have been calls for all temporary workers to be given a pathway to permanent residence in Canada, but this suggestion appears short-sighted.

Migrant workers and Canadians alike must be protected against exploitation by employers. However, low-skilled foreign workers who choose to apply to work in Canada must do so knowing that their relocation has a finite term and they will be required to leave afterwards.

For the few who are able to transition to permanent residence under provincial nomination programs, are able to improve their qualifications and meet existing pathways under permanent residence streams.

Those who cannot must look to other destinations beyond Canada.

Interested employers: Kindly contact us here to receive further information.

Interested candidates: Find out whether you qualify to Canada by completing our free on-line evaluation. We will provide you with our evaluation within 1-2 business days.

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• McCallum Insists No Conclusive Decisions Have Been Made on Immigration Reforms
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Read more news about Canada Immigration by clicking here.