Temporary foreign worker (TFW) program suggestions

There is a long list of ways to change and update the temporary foreign worker (TFW) programs but I really like the four suggested in this article.

Here are some of my thoughts on the ones mentioned:

  1. Remove the 10 per cent cap on low-wage temporary foreign workers

There will always be challenging positions to fill.  With lower wage jobs in general, there simply isn’t as many people who want to do them.  Canadian employers that are dealing with low skill/low wage positions don’t have the luxury of large budgets so they would hire local Canadians first as it is more practical anyways.

Employers currently post multiple ads in Canada, actively attempt to recruit Canadians and offer wages at or above the median wage for the occupation, before they are allowed to hire a temporary foreign worker. Since the Canadian government has the power to send temporary foreign workers home, and this has not occurred so far, there doesn’t appear to be any evidence to show that temporary foreign workers take away Canadian jobs.

This cap hurts the Canadian economy because it prevents businesses from hiring the people they need.  Employers who cannot operate successful will eventually have to shut their doors, which will result in Canadians being laid off.

  1. Provide a permanent residency pathway for all temporary foreign workers.

The pathway to permanent residency is difficult to navigate.  For those who have managed to clear the hurdles for a temporary work permit, it shows that they are willing, capable and invested in remaining in Canada.  Together with the support of their employer (whose businesses have employed them to support the Canadian economy), this is the type of “worker” we need in the country.

If the job vacancies persist over a period of time, isn’t this sufficient evidence that skill shortage is chronic?  Temporary foreign workers should be given a pathway or at least a small advantage in their permanent residency application.

  1. Enforce temporary foreign worker rules.

With the number of audits there are presumably being conducted, the majority of employers are complying with the law. If the rules are broken, those who don’t follow them should be punished or the rules are meaningless.

  1. Clear guidelines on how temporary foreign worker applications will be assessed.

The requirements should be clear for everyone but a portion of the guidelines the government uses to assess temporary foreign worker applications are not publicly posted.  Larger employers, who have the resources to research the issues have an advantage over smaller businesses.  It is however, the small to medium enterprises (SME’s) who face the biggest hiring challenges and need the most assistance with the TFW administration.

Immigration Levels Plan released March 8, 2016

The Immigration, Refugee and Citizenship Canada (IRCC) released the Federal Government’s 2016 Immigration Levels Plan on March 8, 2016.

2016 Immigration Plan

The 2016 Plan is a 7.4% increase over the 2015 level plan for immigration.  It emphasizes family reunification and humanitarian and compassionate processing over foreign workers.  Canada is also aiming to reduce application processing times.

Some of the Plan’s key points include:

  • Canada will admit between 280,000 and 305,000 new permanent residents in 2016;
  • Fewer Economic immigrants will be accepted under the Canadian Experience Class (CEC), Federal Skilled Workers (FSW), and Federal Skilled Trades (FST) programs;
  • Restoration of the maximum age for dependent children to 22 (from 19);
  • Conditional permanent residence (PR) status to Family Class spouses will be eliminated;
  • Number of new applications allowed each year for parents and grandparents has been doubled;
  • A reduction in federal business immigration by approximately 47% from 2015

A few bright spots for employers

  • Foreign workers who are selected from the Express Entry Pool and submit a complete application for permanent residence may be eligible for an Open Bridging Work Permit to extend Work Permit status
  • The Government of Canada has announced that it will undertake a coast-to-coast review of the Foreign Worker Program.
  • Changes to Express Entry (EE) are expected which includes the allocation of points for Canadian siblings and changes to the CEC category to benefit international students

Same old same old

I am disappointed that the Government has not made more of an effort to include economic immigrants and foreign workers in the 2016 plan.  In many ways the new policies are the same “old” ones.  This current government is canceling what the previous government implemented just recently and reinstated many of the original rules.

LMIA 2.0

A small bright spot is that the Labour Market Impact Assessment (LMIA) will be revisited and hopefully redesigned to be more responsive to true business needs.  Immigration Minister McCallum has acknowledged that the Foreign Worker Program (FWP) has swung from one end of the extreme (too lax) to the other (too stringent) as a knee jerk reaction to high profile scrutiny.

The LMIA review is a good sign that we have some action oriented leadership in Canadian immigration today.  It’s important to fix and readjust what isn’t working in a program instead of taking the easy way out by eliminating it.  The FWP has had its problems but it isn’t beyond repair.  If they do employer consultations, perhaps this will provide a reality check for any redesign considerations.

Foreign worker value

The Canadian economy doesn’t operate as a completely closed employment bubble.  Foreign workers provide flexibility, ingenuity and potential to meet Canada’s needs now and into the future.  In an ideal world, Canadian employers could rely exclusively on its own citizens to meet its labour needs.  However, that isn’t possible or realistic.  Foreign workers will always exist and in Canada’s case, this is often the first step onto the permanent resident pathway.

Temporary work permits facilitate what could be a mutual probationary period for potential immigrants to Canada.  Both parties have a practical way to see how things work out before firming up the relationship – this is better than a money back guarantee.

This IRCC infographic provides a good snapshot of the Immigration Plan.

International Experience Canada (IEC) reboot

Immigration, Refugees and Citizenship Canada (IRCC), formerly known as Citizenship and Immigration Canada or CIC, launched a new e-application system for the International Experience Canada (IEC) program.

The IEC provides foreign youth between the ages of 18 and 35 the opportunity to travel and work temporarily in Canada to fund their trip or to gain a Canadian work experience. There are currently 32 countries participating in this reciprocal arrangement program and three types of “working holiday” categories — Young Professionals, Working Holidays, and International Co-op Internships.

This new IEC process has been redesigned to prevent the annual crush for working visas to Canada.  The previous system was on a first come, first served basis which resulted in acceptance quotas being reached within minutes of the annual program launch.  This left many disappointed applicants having to wait until the next quota/year to try again.

The new system works in a similar fashion to the Express Entry pool where applicants  begin the process creating an online profile.  If eligible, this places the individual into a “pool” of candidates to be drawn randomly at “regular intervals”.  If drawn, the candidate is sent an Invitation to Apply for a work permit. Draws continue to be held until all slots are filled for the year.

There is some talk of new participant countries being added, more flexibility with quota limits and other new features on the horizon.  It will be exciting to see what happens as youth and mobility will benefit Canada.

For more information on the program, see International Experience Canada.

Beware of the Prevailing Wage

Effective November 16, 2015, the National Occupation Classification (NOC) codes will be linked to the prevailing wage of the geographical area.  Employers supporting foreign worker/work permit applications must pay these wage rates as required by the Labour Market Impact Assessment (LMIA) and the Ontario Immigrant Nominee Program (OINP).

The prevailing wage is the median hourly wage for a NOC code/ occupation in a specific location and it can be found at www.jobbank.gc.ca.  This prevailing wage is adjusted periodically by Employment and Social Development Canada (ESDC/Service Canada) based on information compiled by Statistics Canada.

This update impacts both the Temporary Foreign Worker Program (i.e. LMIA) and International Mobility Program (IMP) applications.  It doesn’t affect Intra-Company Transferees but employers should always be mindful of what is being offered for those international relocations as well.

Be aware and be prepared…

Employers should check the prevailing wage to ensure it is at or above the median level for the NOC before conducting the advertisement requirements for a LMIA application.  In cases where the wage changed between the initial JobBank posting (and this unexpected announcement), Service Canada may require the position to be re-advertised. Employers offering a wage that is below the prevailing wage rate will not meet the labour market requirement for the LMIA.

Please note that the prevailing wage should not be confused with the LMIA high wage/low wage application thresholds.

CIC Employer Portal

Effective October 26, 2015, Citizenship and Immigration Canada (CIC) implemented the Employer Portal which replaces the IMM5802 form.  This is another step in CIC’s efforts to manage employer-specific work permits and allow for greater compliance measures.

Employers must enroll and apply through this new portal to bring in temporary foreign workers through an International Mobility Program (IMP).  They must submit employment-related compliance data and pay a $230 fee prior to sending the foreign worker to the visa office or port of entry.

This new change was made and announced the same day (above) so a short Grace Period is available.  Foreign nationals who have been given an IMM 5802 form submitted to CIC prior to October 26, 2015 have until November 21, 2015 to submit a work permit application to a Visa Office or a Port of Entry.

New developments on the Employer Portal will continue to unfold as more details are worked out.

 

 

 

Strengthening Canadian Citizenship Act, Bill C-24 (Part 2 )

With the Strengthening Canadian Citizenship Act, Bill C-24, the government made changes to strengthen and restrict the granting of citizenship. These new requirements make it more difficult for permanent residents to qualify to be Canadian citizens.

The key changes that came into force with the final installment on June 11, 2015 include:

Stricter Residency Requirements

  • Adult applicants must now be physically present in Canada for at least 1,460 days (four years) during the six years before the date of their application, AND they must be physically present in Canada for at least 183 days in each of the four calendar years within the qualifying period.
  • This is a change from the current residency requirement of accumulating three years of residence within the four years immediately preceding the date of his/her application (1,095 out of 1,460 days). Additionally it will require applicants to be present in Canada for at least 183 days per year in four of the six years.

Expanded language and knowledge testing

  • Applicants between the ages of 14 and 64 must meet basic knowledge and language requirements.

The current age group for basic knowledge and language requirements is 18-54.  Under the new changes, the age group has been extended to the younger and older applicants.

Income Tax Filing Requirement

  • Applicants will be required to show proof of income tax filings for the qualifying period.

This is a new requirement that did not exist before.

Intent to Reside Requirement

  • Adult applicants must declare their intent to reside in Canada once they become citizens.
  • the new Act states that the person’s intention must be continuous from the date of his/her application until they take the oath of Citizenship

This is a new requirement that did not exist before. Clients that leaving the country soon after filing a Citizenship application may be construed as a misrepresentation. 

Other changes that came into force…

  • Individuals with foreign criminal charges and convictions which if convicted in Canada would be an indictable offense (regardless of whether a pardon or amnesty was granted) will no longer be granted citizenship as per the Act. The applicant is barred from applying if the act occurred within the four years from the application date.

Under the old Act, this bar only pertained to applicants who had Canadian criminal charges and convictions which amounted to indictable offenses. And the bar was within three years of the date of application.

  • Citizenship provisions to “Lost Canadians” and citizenship will be automatically extended to additional “Lost Canadians” who were born before 1947, and did not become citizens on January 1, 1947 when the first Canadian Citizenship Act came into effect. This will also apply to their children born in the first generation outside Canada.
  • Greater penalties for fraud
  • New authority to designate a regulatory body for citizenship consultants

Only members of the ICCRC, lawyers or notaries (including paralegals and students at law) can be paid to provide citizenship applicants with representation or advice.

  • New revocation model and new grounds for revocation of citizenship

The government will be able to revoke Canadian citizenship from dual citizens who are convicted of terrorism, high treason, treason or spying offences, depending on the sentence received.

Under the current process, revocation involved three steps: the Citizenship and Immigration Minister, the Federal Court and the Governor in Council. In the new model, the majority of revocation cases will be decided by the Citizenship and Immigration Minister only.

Those seeking citizenship will need to plan ahead – by ensuring they file their income taxes with the Canada Revenue Agency, be physically present in Canada for at least four years during the six years before the date of their application and be present in Canada for half of the year (183 days) in each of the qualifying four calendar years.

In addition, the government implemented stronger penalties for fraud and misrepresentation in citizenship applications and has the power to revoke citizenship for dual citizens.

Strengthening Canadian Citizenship Act, Bill C-24 (Part 1)

The remaining provisions of the Strengthening Canadian Citizenship Act, Bill C-24 came into force on June 11, 2015. Bill C-24 became law on June 19, 2014 and were the first set of reforms to the Citizenship Act since 1977.

The changes, which amended and improved the citizenship program, came into effect in three phases: July 19, 2014, August 1, 2014 and June 11, 2015.

The government has made changes to strengthen and to restrict the granting of citizenship. These new requirements will make it more difficult for permanent residents to become Canadian citizens.

June 19, 2014

  • Fast-tracking citizenship for members of the Canadian Armed Forces;
  • Improving clarity on the first generation limit on citizenship for those born abroad;
  • Extending the exception to the first generation limit to ensure the children of Crown servants can pass on citizenship; and
  • Moving the decision-making authority for discretionary citizenship grants to the Minister, which eliminated an extra application step.

August 1, 2014

  • Streamlined decision-making process for citizenship applications whereby citizenship officers have complete discretion on all aspects of the application;
  • Improved efficiency of the application process by returning incomplete applications;
  • A new uniform system for judicial review of decisions made under the Act. Now decisions made by citizenship officers can be judicially reviewed and challenged in the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada; and
  • Authority to abandon a citizenship application (at any stage of the process) if the applicant fails to comply with a request for information or to attend an interview.

The final set of changes to the Act that came into force on June 11, 2015. The intent of these new revisions is to deter “citizens of convenience“; and therefore, residency requirements have become much stricter.

Please see Part 2 in next post…

Electronic Travel Authorization (ETA) affects coming to Canada

Starting March 15, 2016, Citizenship and Immigration Canada (CIC) is implementing new travel regulations for foreign nationals who do not otherwise require a visa to come into the country. Currently, visa-exempt travelers are not examined for admissibility until they arrive at the Canadian port of entry.  This new Electronic Travel Authorization (eTA) program, which originated in from the “2011 Beyond the Border Action Plan” between Canada and the United States, will pre-screen air travelers for admissibility concerns prior to allowing them onto the plane.

$7.00 online application

Air travelers will be required to pay a $7.00 processing fee to apply via an online system. The ETA will be approved and issued in most cases within minutes of the application. Cases which require further review will be completed within 72 hours. The ETA will be valid for up to five years, or until the applicant’s passport or travel document expires. If a foreign national obtains a new passport, a new ETA will be required before traveling to Canada.

Who is affected?

With the exception of American citizens, everyone flying into Canada will now be pre-examined. The ETA applies to individuals who can enter Canada without a visa arriving by air. It is not required when entering at a land border or by sea.

Starting on March 15, 2016, visa exempt work and study permit holders who are already in Canada will be required to obtain an ETA if they leave Canada and re-enter by air. Future permit applications will automatically be issued with an ETA at no additional charge.

Impacts to business and travel

We aren’t clear how much business travel and the “business of travel” will be affected but these new regulations will impact global mobility.  Additional time and resources will be needed to manage the new ETA processing. Although air travelers have gotten more accustomed to security checks and other boarding delays, this could be a whole new world.

Privacy and personal information

What other purposes might this personal information be used for and how much of it will be shared between countries? Requesting details of a visitor’s background could delve into other issues such as medical or security concerns. Not only will we be dealing with time delays but this could involve internal reviews of company policy and the greater privacy concerns.

One thing is for sure. It’s going to get much more complicated for Human Resources who deal with international business travelers. This could trigger major obstacles for travelers who may be inadmissible for health, criminality, or previous non-compliance with Canadian immigration requirements.

Going rogue on paperwork

I am often asked how much responsibility the employer has for the work permit process and how much of it falls on the employee/candidate. With some minor exceptions, most Canadian work permits are employer driven. This means that the employer has to initiate the work permit application/extension process to support a worker before the individual can move forward.

Immigration-related applications made through the Labour Market Impact Assessment (LMIA) or a provincial nomination program (PNP) require the employer’s business details and signatory consent. This consent indicates that the employer is aware and involved in the process.

There are a lot of foreign workers in Canada who are desperate to stay in the country. Ideally, these workers have the employer’s active support and involvement in the immigration process. For those who are left to their own devices, it is a slippery slope. Canadian employers who let someone else manage the situation are potentially playing with fire. Those who are not getting very involved or trying to put the onus on the individual employee are putting more at risk than they realize.

The foreign worker cannot apply for an extension without the employer’s active consent. When an employee is trying to “do this on their own”, s/he don’t always get knowledgeable support from the right place. There are some creative immigration consultants (and sometimes lawyers) who are hired by the employees to take care of everything. The employee thinks s/he is making it easier for the employer by taking it out of their hands and by not involving them. They “think” their employer simply needs to provide a few bits of information and the rest will be completed by the third party. Despite the employee’s desire to remain in Canada, s/he should not let someone else go rogue on immigration paperwork. What the employer and employee must realize is that they are still ultimately responsible for what they submit. All parties need to be involved, informed and actively consenting.

Simply leaving the employee to figure things out does not discharge the employer of responsibility. The auditable component of the LMIA or the PNP means that there is employer accountability. The business will be liable when the authorities come calling. It is short-sighted for employers to think that they can offload this responsibility to the foreign worker who is left on their own to complete the paperwork; they cannot claim they knew nothing about the situation at a later date. If a program officer conducts an audit, the party taken to task (and who could be at risk of being blacklisted) will be the employer.

Organizations that value their employees provide support through practical action. Having limited resources is not an excuse for not conducting due diligence on what needs to be done for an employee’s immigration status. In the case of the foreign worker, the employer should take the time to understand what its role is. If not, the employment contract should not extend beyond an employee’s valid working status in Canada.