Daily Realities and the Globally Mobile

Skilled workers with professional expertise have many international employment options.  However, do the employers who want to attract this talent understand how to deal with the global mobility issues?

HRMA’s PeopleTalk Summer 2016 – Are You Globally Mobile.

PeopleTalk-Summer-2016-Are-You-Globally-Mobile-2

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.

eTA required for Canadian PR’s

The Electronic Travel Authorization (eTA) will be coming into effect on March 15, 2016.  This travel requirement (see previous blog post) is being imposed on visa-exempt foreign nationals flying into Canada.  All Airlines will be checking travelers and any passengers who do not have an eTA or do not qualify for an exemption will not be permitted to board the aircraft.

Exemptions

  • Foreign nationals who require a temporary resident visa to enter Canada are exempt
  • Citizens of the United States are exempt – however, US permanent residents / Green Card holders do require an eTA
  • According to Citizenship and Immigration Canada (“CIC”), foreign nationals who hold a study or work permit issued on or after August 1, 2015 have automatically been issued an eTA
  • Visitor record holders must apply for a separate eTA, regardless of when it was issued
  • Permanent residents who hold a valid permanent resident card do not require an eTA
  • The eTA is not required for travel to Canada by sea or land

eTA Application process

The eTA application process is fully electronic and costs CAD $7.00. The eTA will be issued for up to five years and will be electronically linked to the traveller’s passport.  No physical document will be issued so it will be wise to print and carry the CIC confirmation acceptance email.

Permanent Residents of Canada

The eTA air travel requirement will affect permanent residents of Canada in a brand new way.  On March 15, Canadian permanent residents without valid permanent resident cards will not be permitted to board flights to Canada.  They must apply for a separate “travel document” from a Canadian visa office abroad to confirm their status with airlines prior to boarding.

Permanent residents who need to renew their permanent resident cards should send in their applications as early as possible. All travelers should confirm their status with air carriers prior to travel to ensure they will be permitted to board flights back to Canada.  Otherwise, the only other option is to travel back by land or sea.

Canadian Employers

Employers should review current immigration documentation held by non-US foreign workers and permanent residents required to travel for business.  Those individuals who require an eTA or permanent resident card to enter Canada should apply as early as possible; these eTA requirements will increase the immigration-related administration and could impact operations.

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.

 

 

 

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.

No April’s Fool Joke for TFWs

For those who employ temporary foreign workers (TFWs), April Fools Day 2015 is no laughing matter—as it carries with it a deadline four years in coming.

On April 1, 2011, Citizenship and Immigration Canada (CIC) officially capped how long a temporary foreign worker (TFW) could work in Canada at one time to four years. With this “4-in, 4-out” regulation, a foreign national could only work for four years on a work permit; and then leave Canada for at least another four years before being eligible to apply for a subsequent term.

The first group of TFWs will experience this “4-in, 4-out” rule starting April 1, 2015.   The intention of this regulation was to encourage TFWs to either apply for permanent resident (PR) status or leave Canada when their status expired—thereby maintaining the integrity around genuine temporary status.

This type of cap is black and white, but the employers and workers who need the TFW programs come in in every hue.  There are just as many truly temporary TFWs as those who change their minds or use the temporary route as a transitional pathway to permanent residence.  There are also many situations where someone is trying to qualify or complete their permanent resident application while in the country but encounter unexpected hurdles or disruptions.

Although the rationale of a TFW being temporary makes sense, the processing times for immigration is making this much more difficult than the decision makers would have expected in 2011.  Unfortunately, there is no mechanism for flexibility.  The rules and regulations have changed significantly, not only in the last four years but in the last four months.  The fall-out will be interesting as the Express Entry (EE) program, which came into effect on January 1, 2015, has hindered a lot of qualified PR applicants.  Many of these skilled TFWs who have been living and working in Canada haven’t been able to get an Invitation to Apply (ITA) for PR – the pre-qualification required for the EE online system.

While there aren’t very many work around solutions available at the moment—as the TFWs who are caught up in this were likely not eligible for the exemptions to this cap to begin with—let’s hope Canadian government introduces reasonable bridging alternatives as with some of their other programs.  Whether it is an interim period or the start of more reform dialogue, what is needed are workable solutions for immigration which address the greater business needs in the Canadian economy.