Author: Kranc Associates

Background

Since June 2014, the government has introduced various measures to ensure higher standards for, and better compliance with, Canada’s Temporary Foreign Worker Program (TFWP). Measures introduced include:

• The realignment of recruitment requirements based on salary rather than NOC Code [NOC is the National Occupational Classification – a dictionary of occupations organized by levels of job sophistication]
• The imposition of a ‘transition plan’ requirement for high wage occupations in a Labour Market Impact Assessment (LMIA) application, to show how the employer will transition the position from the foreign worker to a Canadian. Such plan is to be reviewed for compliance if a later LMIA is sought for the same position.
• An increased numbers of inspections and audits.

The government has now announced yet another measure by which it seeks to enforce compliance with the TFWP. Effective December 1, 2015, it will begin imposing ‘Administrative Monetary Penalties’ (AMPs) for non-compliant employers.

Administrative Monetary Penalties

As the name suggests, the government will begin imposing monetary penalties for employers who fail to comply with their immigration/labour market obligations under the TFWP. The program will be administered by Employment and Social Development Canada (ESDC), who oversee the TFWP.

Employers must be careful to recognize that TFWP requirements include both direct foreign worker issues such as providing the salary for which a work permit was approved, but also some less obvious requirements such as ensuring that a workplace is free from physical or sexual abuse.

Though rather complex, we summarize the system for imposing the penalties as follows:

1. Violations are broken down into three types: A, B, and C.
   • Examples of Type A violations:
     • Failure to maintain required documents for 6 years
     • Failure to attend an inspection when required
   • Examples of Type B violations:
     • Failure to hire or train Canadians if that was a factor in work permit issuance
     • Failure to comply with recruiting regulations (which often require that no employee be required to pay for his/her recruitment)
   • Examples of Type C violations are:
     • Failure to be actively engaged in the business under which the employment offer was made
     • Failure to make reasonable efforts to ensure that a workplace is free from abuses (including sexual, financial, physical, etc.)

2. For each violation, the adjudicating officer assesses points within a range, depending on his/her opinion of the severity of the violation. Note that level of severity is different than the violation type as set out above.The severity ranges are:
   a. 0 to 6 points: for violations regarding labour market considerations
   b. 0 to 3 points: for failure to make reasonable efforts to remedy or minimize an issue
   c. 0 to 10 points: for violations involving one of the disallowed abuses

3. The officer assesses additional points depending on whether the violation is a first, second, or subsequent violation.

4. With all the points accumulated, the officer goes back to reference the total points assessed against a table which breaks down points as against whether violations are Type A, B, or C. The table prescribes the monetary penalty for the points assessed in each of violation types A, B, or C. The maximum amount per violation at this time, is $100,000.

For Example, a portion of the chart reads as follows:

 

Points	Type A-Lrg. Bus.	Type B-Lrg.Bus.	Type C-Lrg.Bus.
0 or 1	$0	$0	$0
2	$750	$1000	$2000
3	$1000	$2000	$10000

 

5. Some further, but no less important notes:
   • Where one violation impacts multiple employees, it will be considered as multiple violations
   • Employers will be permitted 30 days to respond to initial findings
   • Inspectors are given the authority to report to other government agencies, unrelated violations or legal breaches  that they uncover in the course of their investigations (e.g. human rights matters)
   • Penalties do vary depending on the size of the business; small employers, defined as those with fewer than 100 employees or less than $5M in annual revenue, may face smaller penalties, depending on the violation type, and the point level
   • Though we focus here on the monetary penalties, note as well that ineligibility periods to hire more foreign workers have also been increased, depending on the number of points assessed (based on a different chart). An employer may even be permanently barred from hiring another foreign worker
   • Violations can relate to non-LMIA work permits as well as LMIA based work permits (e.g., if an employer is violating a provision relating to an Intra-Company Transfer, that is no less an issue than a situation based on an LMIA)

What Employers Should Do

It is clear that Canadian immigration/TFWP compliance requirements continue to grow ever stricter. It is further clear that the chance of being inspected is increasing. Employers cannot take the chance of failing to comply with the relevant requirements. Taking these newest measures together with the already existing requirements, it is imperative that employers remain compliant.

Employers should, at the very least,

1. Review all current documentation relating to each foreign worker (or foreign workers generally)
   • This would include documentation that may not name the employee specifically, e.g. a company abuse policy
2. Establish a procedure/system to ensure ongoing compliance with the regulations.

Canadian employers hiring foreign workers cannot afford to take for granted the compliance provisions implemented by the Canadian government.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

As those familiar with the Canadian work permit system will know, Labour Market Impact Assessments (LMIAs) are applications used by employers to seek permission to hire foreign workers for a particular position. Within the application, employers must substantiate that a Canadian citizen or permanent resident could not be found for that position.

Before filing an LMIA application, an employer must carry out certain mandated recruitment efforts. Among the requirements is that an employer must recruit in three sources, one of which must be the federal Job Bank (or the provincial counterpart in some cases).

Recently, the government introduced new Job Bank registration procedures such that only Canadian citizens could register as employers on the Job Bank. There is no doubt that non-Canadian employers can act as employers for the purposes of an LMIA application. However, this new requirement made it virtually (if not completely) impossible for foreign employers to place an ad on the Job Bank, thus in turn making it impossible to secure LMIA approval.

The government has been apprised by various stakeholders (including a representation from Kranc Associates), about the issue and its impact. The government seems to now recognize the concern, and we expect that changes will be made to accommodate this situation.

In the interim, as difficult as this seems to believe, ESDC/Service Canada sources have advised that foreign employers need not advertise on the Job Bank. Rather, they must still use three recruitment sources, but they do not need to include the Job Bank as one of those sources. (It is still required, however, that one of the ads still run beyond the initial four week period.) In that regard, an unannounced change was made to the ESDC web site which now indicates:

• Employers recruiting higher-skilled workers, in areas where the use of the Job Bank or its provincial/territorial counterparts is not considered an effective method of recruitment, must provide a written explanation of the alternative method used with their LMIA application. (emphasis added)

We do expect that the Job Bank will ultimately be altered to allow foreign employers to access it more easily. In the interim, and as risky as it may sound, it would seem that foreign employers may avoid the Job Bank (but not the other requirements of the LMIA process), as long as they explain why this has been done. We would hope that the fact that you can’t actually use the Job Bank is a good reason not to use it.

Happy Canada Day to all!

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

The Province of Ontario, which has had in place a provincial nominee immigration system for a number of years, announced recently, that it will be adding a further element to its immigration programs.

In addition to the ‘ordinary’ provincial nominees (where typically, an employer ‘sponsors’ a qualified applicant), Ontario will now implement a program that dovetails with the new federal ‘Express Entry’ permanent residence system.

The Federal Express Entry system generally allows applicants to file a profile, based on qualification on an underlying federal permanent residence program. The underlying federal programs are the Canadian Experience Class (CEC – based primarily on a minimum of one year work experience in Canada, Federal Skilled Worker class (FSW – based on a point system where various factors are taken into account including age, occupation, education, etc.), and the Federal Skilled Trade Worker program (FSTW – based on qualification in a specified trade). The Ontario program will nominate only from the CEC and FSW categories, not the FSTW program.) Thereafter, Citizenship and Immigration Canada selects applicants to apply for permanent residence from the pool of profiles, based on a further set of criteria. The system also requires applicants who do not already have a Labour Market Impact Assessment to add their name to the Job Bank, and employers may then select candidates they may desire.

Now, the Ontario provincial nominee program will select up to 2700 applicants from the Express Entry pool each year. In effect, Ontario is now able to select immigrants in the same way that employers generally might otherwise, based on its needs. (Note that the overall Ontario quota is 5200 per year. The balance of nominees would come from the already existing nominee program.)

There are two ways to qualify for Ontario Express Entry.

1. Ontario Express Entry: Human Capital Priorities Stream

To qualify applicants must have:

• Pending application under the Federal Express Entry system;
• Minimum of 1-year of full time, or full time equivalent work experience under NOC occupation level 0, A or B;
• Canadian equivalent Bachelor’s degree, Master’s degree or PhD;
• Minimum CLB level 7 in IELTS general exam;
• Intention to reside in the Province of Ontario;
• Minimum of 400 points under the Federal Express Entry Comprehensive Ranking System.

2. Ontario Express Entry: French-Speaking Skilled Worker Stream

To qualify applicants must have:

• Pending application under the Federal Express Entry system;
• Minimum of 1-year of full time, or full time equivalent work experience under NOC occupation level 0, A or B;
• Canadian equivalent Bachelor’s degree, Master’s degree or PhD;
• Minimum CLB level 7 in TEF exam;
• Intention to reside in the Province on Ontario;
• Minimum of 400 points under the Federal Express Entry Comprehensive Ranking System.

After the Province of Ontario selects eligible applicants from the Federal Express Entry Pool, candidates who are selected will receive a ‘Notification of Interest’. This will allow them to submit an application for nomination under the Ontario Provincial Nomination Program.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

The ability for people to enter Canada– including those entering for business purposes – continues to narrow. Two new programs, discussed below, will drastically change the requirements for travellers. Anyone dealing with the need to bring to Canada foreign workers or business visitors, must be aware of the new requirements, and how the programs will impact their businesses.

Electronic Travel Authorizations

Citizenship and Immigration Canada (CIC) is implementing a system whereby visa exempt foreign nationals will be required to file for an Electronic Travel Authorization (“eTA”) before entering Canada. The program goes into effect August 1, 2015, but there is a grace period provided, and mandatory filing will begin on March 15, 2016. This requirement will not impact those seeking a work or study permit (as the government secures information for such cases through its existing systems), but can certainly apply to people in a business scenario, and most notably, those seeking to enter as business visitors.

In addition to the foregoing, CIC will introduce an Interactive Advance Passenger Information (IAPI) system, whereby passengers boarding an airplane will need to show that they are properly documented under the eTA system, failing which, boarding could be denied.

The eTA program will be an online system. The information sought will be less onerous than that sought in a visa application; essentially (though the exact wording has not yet been released), applicants will be required to provide information that they would otherwise be providing when arriving in Canada – typically about issues which may cause inadmissibility. An application will cost $7CDN and eTAs will be valid for 5 years, or until the passport provided expires, whichever comes first (travel must be done with the passport used in the application).

Notable exemptions from the eTA requirement are:

• US Citizens (obviously reducing the program impact for a significant number of travellers)
• Persons entering only as a member of a transportation crew member
• Most persons transiting through Canada
• (and, the Queen of England. Really!)

Note as well that US permanent residents (who are visa exempt) still require an eTA if flying to Canada.

This system generally mirrors a similar system in the United States (the Electronic System for Travel Authorization [ESTA]), and is part of a joint effort to essentially create a North American perimeter (which explains the exemptions for US Citizens entering Canada, and Canadian citizens entering the US).

Biometrics for [almost] All

Further to the above, Canada’s Prime Minister announced today that over the next 5 years, the government will begin implementing requirements that ALL visa-requiring visitors to Canada  – and some non-visa nationals – obtain Biometric screenings as part of the application process. To date, biometrics have been required for nationals of only 30 countries (some examples are: Pakistan, Syria, Afghanistan, and Colombia). Once fully implemented, the two defined groups that will require biometrics are:

• Anyone who requires a visa, and
• Anyone seeking a work or study permit, whether requiring a visa or not, with the notable exceptions of US citizens

Summary/Considerations

These programs heighten the need for HR personnel or others involved in business immigration matters to ensure that they are up to date on all requirements, and plan well in advance for the arrival of any foreign worker or business visitor. Failure to do so, will lead to frustration and possible refusals.

 

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Background

Since the beginning of time (or so it seems), Canadian immigration law has had a large black hole from which no one could escape. That black hole was the ‘gap’ between the legal allowance for foreign repair personnel to service equipment in Canada while still under warranty or service agreement,  but thereafter, the disallowance to carry out such service. Unless a repairperson could be characterized under some other non-LMIA category (e.g. Intra-Company Transfer or NAFTA/Free Trade Agreement professional), he/she would typically be unable to enter Canada to service the equipment (or would require an unduly burdensome LMIA). This was a source of great frustration. Canadian companies had equipment which legitimately needed service by an overseas vendor or expert, but there was no legal ‘tool’ by which to get these people to come to Canada.

What’s New

Effective May 21, 2015, this has finally changed. Citizenship and Immigration Canada (CIC) has recognized this problem (and indeed the harm it causes to Canada). To remedy the situation, CIC has expanded the non-LMIA work permit category of ‘Emergency Repair’ to include repairs/maintenance beyond the warranty or service period. (For those who wish to refer to the technical legal source, this would be LMIA Exemption Code C-13.)

‘Emergency Repair’ is a category that CIC has used to override the need for a Labour Market Impact Assessment, and thus, allow a foreign worker to apply directly for a work permit at a Port of Entry, or Visa Post, as the case may be. Until now, this exemption was available only to foreign workers to provide “emergency services, including medical services, for the protection or preservation of life or property”. This was a very limiting approach, and it was typically a difficult onus to satisfy an officer that there was urgency to the matter.

Now, this provision has been expanded to allow foreign workers to come to Canada “to repair industrial or commercial equipment that is no longer under warranty or covered by an after-sales or lease agreement”. This is a MAJOR change. The need to demonstrate “…protection or preservation of life or property” has been eliminated (or at least altered to accommodate this provision). This provision recognizes the need for preventative work and/or repair, without which there would be a negative impact on productivity (which, it would seem, is commonly the case in the need for maintenance or repair).

Program Requirements

This is indeed an important change. Please note, however, that there are still some conditions, including requirements that:

• Specific knowledge is needed for the repair;
• The manufacturer have no commercial presence in Canada; and
• Canadian jobs would be greatly affected without timely repair/service.

Further, there is some specific documentation required, including:

• A letter from the home employer with information to satisfy CIC of the employee’s status with the company and purpose of visit;
• The IMM5802 – the ‘Employer Compliance’ documentation now required for all non-LMIA work permit applications; and
• Evidence of the foreign employee’s proprietary or specialized knowledge to repair the equipment.

These work permits will be available for periods of up to 30 days – which is usually enough to complete the necessary work. Arguments can be made, where appropriate, for longer durations.

Summary

This is a very welcome breakthrough which finally addresses a problem which has caused great difficulties to Canadian companies, as well as the foreign companies/employees who are required to service them. Subject, as always, to meeting the substantive legal and procedural requirements, bringing foreign repair personnel to Canada should become much less cumbersome.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Background

Citizenship and Immigration Canada (CIC) has for some time offered a unique program eliminating the need for visas for a limited class of Chinese nationals.

The program, called the China Transit Program (CTP) allows Chinese nationals who are travelling to or from the United States to transit in Canada without a visa. To qualify the Chinese national would have to hold a valid US visa and travel to Canada on an approved airline (Air Canada, Air Canada Rouge, Air China, WestJet, Cathay Pacific, China Southern, Philippines Airlines, Jazz Air, Sky Regional Airlines Inc., and Air Georgian). Further, the Chinese national would have to be transiting through an approved airport. At this time, the approved airports are Vancouver International, or Toronto Pearson (Terminal 1).

Requirements of the program

Some conditions of the program are:

With regard to travel to the United States:

• The traveller must hold a confirmed onward ticket for a direct flight to the US
• The flight must leave the same travel day (no layover or overnight stay)
• Travellers changing flights in Canada must arrive during the hours of operation of the U.S. in-transit pre-clearance facility.

With regard to travel from the United States:

• The traveller must arrive in Canada from the US on a direct, non-stop flight (on an approved airline)
• The traveller must not have overstayed his/her US visa
• The traveller must have valid travel documents for the country or countries to which they are flying from Canada
• The traveller must hold a confirmed onward ticket for a flight that will leave Canada on the same travel day

In addition to all the above, the traveller travelling to the United States must be arriving from a particular airport. Until now, those airports have been:

• Beijing
• Guangzhou
• Shanghai
• Hong Kong
• Manila
• Taipei

What’s New

What is new is that CIC has just announced that effective June 1, the list of airports from which travellers may arrive has been expanded to include:

• Tokyo Narita
• Tokyo Haneda, and
• Seoul Incheon

This list is expected to grow when Electronic Travel Authorizations are introduced, which is expected in the next year.

This program is important for various reasons including increased revenue for Canada, simplified immigration processing, and reduced bureaucracy at various levels of CIC administration.

Important Considerations and Applications of the Program/
How to Access The Program

It is important to note that it is the airline or airport which applies for CTPs, not the individual. As such, if there are persons or groups (including businesses) who wish to make use of the provision, they should get in contact with the airline(s) to ensure that they can take advantage of the program. This may important for, among others, multi-national corporations with operations in China and the United States.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Who is Impacted

Alberta employers whose employees are seeking permanent residence through the Alberta Provincial Nominee Program.

Background

On April 1, 2011, Citizenship and Immigration Canada (CIC) announced that subject to various exceptions, work permits in Canada would be capped at four years. Thereafter, workers would need to be absent for a further four years before they might work in Canada again. CIC said at that time that the provision was not retrospective; as such, the first possible date that someone could hit the four year cap was April 1, 2015. There are therefore people at this moment who are starting to be caught by this provision, and whose work permits will not be renewable.

What Has Changed

In what seems like a ‘common sense revolution’, however, CIC has recognized that there needs to be some adjustment to this pronouncement, and has made some modification.

Specifically, CIC has recognized that there are many well-qualified foreign workers who have applied for permanent residence under the Alberta Provincial Nominee Program (AINP). However, the AINP is currently taking some 29 months to process applications. Therefore, it may well come to pass that a foreign worker in Alberta who has applied under the AINP will need to leave in the interim, caught between the four year cap and the 29 month processing period.

CIC has therefore allowed an exception to the four year cap, and announced the ‘AINP Pre-Nomination Initiative Work Permit’ (AINP-PNIWP). This will allow some people to bridge the gap to permanent residence finalization, even though they are in Canada beyond four years.

Program Requirements

To qualify for this kind of work permit, the following conditions must be met.

The worker must:

• be working on an International Mobility Worker work permit (i.e. not based on a Labour Market Impact Assessment)
• have applied to the AINP before July 1, 2014
• be currently in Canada with a valid work permit set to expire in the 2015 calendar year (caution must be exercised in that if an expiry period passes before the AINP-PNIWP application is made, the person concerned will lose all right to use this program)
• have applied for an “initiative” work permit for work in Alberta with the same employer
• have a letter from the AINP indicating that Alberta intends to nominate the worker, and
• have created an Express Entry profile if they have a NOC B position

No further guidance has been provided, but if the logic follows through, it may be reasonable to believe that such a program would be renewed into the following year or years.

What you should do

If your organization has a foreign worker who meets the above criteria, you and he/she should take action to secure the necessary documentation and lodge the relevant application as appropriate. Failure to do so, could lead to a foreign worker being put back in the black hole between the four year cap and the AINP permanent residence finalization

Conclusion

Since 2011, Canadian immigration laws, regulations, and policies have been changed on countless occasions – and always to make them harsher and more restrictive. This seems to be the first recognition that sometimes, CIC may need to relax or at least review some elements of its program. Failure to do so in reality leads to harm to foreign workers, to their employers, and indeed to Canada. Hopefully this philosophy may take root, but for now, at least some foreign workers who have applied for permanent residence under the AINP, will be able to secure a kind of ‘bridge’ work permit, mitigating the impact that the 4 year cap that could have been be harmful to all involved.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Who is impacted:
     Employers seeking to hire LMIA-based foreign workers, and prospective employees

Application Type Impacted:
     Labour Market Impact Assessments

Effective Date:
     April 30, 2015

What is changing:

Further to the myriad of changes that have affected Canada’s Temporary Worker Program in the last few years, it appears that we still haven’t seen the end. This change impacts LMIA applications.

Effective April 30, a new method of identifying employer requirements to recruit foreign workers will be implemented. This change was contemplated previously (with the June 2014 amendments), but it is only set to come into force now.

Until now, under the post-June 2014 scheme, employers seeking to hire a foreign worker, would need to consider whether the appropriate salary for this occupation was above or below the provincial median wage, and whether the occupation was high skill or low skill (pursuant to the appropriate NOC designation. NOC 0, A, B = high skill; NOC C, D = low skill).

[Please recognize the distinction between the provincial median wage, and the Job Bank-based median wage relating to NOC specific occupations, for the purposes of analysis. Each NOC occupation will have a median wage on the Job Bank which takes into account location and other factors. This is different than the provincial median, which is simply the median wage as taken from across all jobs in the province.]

 

In most cases, high skill positions (which require an LMIA transition plan) would be above the median provincial wage, and low skill positions (which have a cap on the number of positions that can be filled), would be under the median provincial wage. It is possible, however, that there could be a low skill occupation (i.e. NOC C or D) whose Job Bank-based median wage pays above the provincial median wage, and therefore would be considered ‘high wage’, and subject to a transition plan. [In theory, the corollary could also be true (high skill wage which paid below the provincial median), but unlikely.]

To clarify a bit further, if the Job Bank says that Occupation A, which is a NOC C level occupation, requires a median wage of $X, but it so happens that $X is actually higher than the listed provincial median wage, that job will be caught as a high wage occupation, and would therefore be subject to a transition plan.

Under the new scheme, this will be simplified. The test will simply be whether the wages required for that occupation pursuant to Job Bank guidelines are above or below the provincial median wage. If above, then they are in the ‘high-wage’ stream and if below, they are in the ‘low-wage’ stream. It won’t matter what the NOC code of the occupation is. If it requires a median Job Bank wage higher than the provincial median, it is high-wage (requiring a transition plan and all other high-wage considerations), and if it requires a median Job Bank wage below the provincial median, it is low-wage (subject to the cap and other low-wage considerations).

For low-wage occupations, employers are also required to include return airfare, provide a contract with prescribed obligations, and ensure affordable housing is available. The government will also update its unemployment surveys which impact low wage positions where unemployment is 6% or greater, in particular sectors. [Information available at http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/tables.shtml#h2.5].

Though the actual situation types that may be affected by this change may be limited, it is important to incorporate the legal consideration for all applications, lest an error occur.

A few further points:

• Employment and Social Development Canada (ESDC) and Service Canada, the administrators of the program, use the 2006 National Occupational Classification (NOC) requirements for the job equivalency evaluation (not the newer 2011 NOC). [This is not a new issue, but it is important to keep in mind.]

• Yearly salaries are calculated based on the presumption of a 40 hour work week (times 52 weeks in a year)

• New forms will be introduced on April 30 impacting both high and low wage positions. Whereas there were separate forms before, both types will now be completed on the same form, and post April 30, all applications must use the new form.
  • LMIAs for the purposes of supporting an Express Entry permanent residence application will also have new/different forms.

• LMIAs in Quebec will be subject to the same requirements as all other provinces (except for the list of 42 recruitment-exempt occupations, for which employers will retain some flexibility).

• LMIAs for highest-demand occupations (skilled trades), highest-paid occupations (top 10 percent), or short-duration work periods (120 day or less) will now be provided within a 10-business-day service standard.

Further information and the current provincial median wage information can be found at http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/highlights.shtml.

What you should do:

As an employer, ensure strict adherence to the requirements, and meet all salary or other guidelines prescribed. Ensure that all necessary information is substantiated carefully before filing an application, and that the correct form is used. Review salary requirements before recruiting for and/or launching an LMIA application, to ensure that you can accept the characterization of the occupation in question as high or low wage, and the consequences that flow therefrom.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Effective:                           Immediately

Who is Impacted:              All Foreign Workers, Business Visitors and their Employers

What Has Changed

Please note that effective March 31, 2015, Visa Post-specific Canadian immigration information is no longer found (or will no longer be updated) at each Visa Post’s own web site. A Visa Post includes any Embassy, High Commission, or Consulate that processes Canadian immigration applications outside Canada. Different Visa Posts sometimes have different procedures, including the need for different kinds of identification documents, work history documents, or otherwise, based on local issues in the countries they serve. Until March 31, 2015, research for any specific Visa Post-specific or country-specific requirements or forms were found at a web site maintained at each individual Visa Post’s web site.

Moving forward, all Visa Post-specific information will now be found at www.canada.ca (also accessible through http://www.cic.gc.ca/english/index.asp).

Please note as well that though this alert focuses on business categories, this change will also impact ‘ordinary’ visitors and students.

 

What You Should Do

The change seems cosmetic from the user’s vantage point (though it may improve functionality). However, the real issue here, and the reason for this release of ImmPulse™ is to apprise readers that they should no longer rely on information found at a Visa Posts’ specific web sites. Even if information is on the Visa Post’s site, and even if it seems on point, it will soon be outdated, and can no longer be considered reliable. In view of the rapidly and ever-changing requirements of Canadian immigration applications, care should be taken to ensure that any application is made using the most reliable, up-to-date forms and information, and a review of the www.canada.ca before each application is made is the only way to be sure that your information is as current and accurate as possible.

 

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.

Effective:                           Immediately

Who is Impacted:              All Foreign Workers (subject to exceptions set out) and their Employers

The Issue

Time goes quickly. On April 1, 2011, Citizenship and Immigration Canada (CIC) instituted a regulatory measure providing that temporary work permits could only be extended for a total work time of four (4) years. The clock for the new provision began to run on April 15, 2011 – that is, any time already spent in Canada as of that time was not included in the cap, so the first date on which someone could possibly reach the 4 year cap would be April 1, 2015. The future has now arrived.

Factors/Strategies to Consider

Subject to exceptions set out below, any foreign worker in Canada who has now hit the 4 year cap would be ineligible to renew his/her work permit. A few notes about the nature/implications of the 4 year cap provision, and strategies to recognize:

• The 4 year cap is ‘real time’. That is, work permits may have been issued for a period totalling 4 years, but it is only the actual time that someone has spent in Canada that is counted. So, a foreign worker with a 2 year work permit who has been working in Canada only 6 months would be considered to have used only 6 months, not 2 years. That being said, the worker must be able to substantiate the facts; he/she must therefore maintain documentation such as passport stamps, airline tickets, or other evidence of when he/she was in or out of Canada.

 

• The ‘solution’ to the cap is often an application for permanent residence. This should be made at the earliest possible opportunity (though, under the new Express Entry system, processing for qualified applicants should be faster than it has been in the past). This will avoid the potential gap between reaching the 4 year gap, and achieving permanent residence. This gap can cause further issues including:
  • The need to depart Canada to comply with the terms of the work permit, and
  • The possibility that the permanent residence application could be negatively impacted by the fact that the person is no longer working in Canada. For instance, this could mean that a previously existing LMIA on which the work permit was based may have lapsed, impacting the points required.

 

• Once a person reaches their cap, they will not be entitled to another temporary work permit for a further 4 years.

Exceptions:

The 4 year cap is not universal. Exceptions to the cap include:

• Managerial level (NOC 0) or professional level occupations (NOC A)

 

• Those who have applied for permanent residence, and have received an approval letter. (If necessary, one could also therefore get a bridge work permit.)

 

• If a work permit is based on a free trade agreement. At this time, these agreements would be:
  • North American Free Trade Agreement (NAFTA)
  • Canada-Chile Free Trade Agreement (CCFTA)
  • Canada-Peru Free Trade Agreement (CPFTA)
  • Canada-Colombia Free Trade Agreement (CCoFTA), and
  • Canada-South Korea Free Trade Agreement (CSKFTA)
  • (Immigration provisions under a new European free trade agreement may also come into effect in the near future)

 

• Those exempt from the LMIA process, e.g., spouses or common law partners of highly skilled foreign workers, those under reciprocal benefit, etc.

 

• Note though that those exempt from the 4 year cap may still be subject to other caps. For instance, Managerial level Intra-Company Transfers are subject to a 7 year cap, and Specialized Knowledge Intra-Company Transfers are subject to a 5 year cap.

 

 

What Employers Need To Do:

To summarize, the 4 year work permit cap is now in play, effective April 1, 2015. Though no one would be caught by theses provisions until now, those who have failed to fully consider the matter may wish to take another look at their circumstances, and what actions they may need to take that may allow them to extend their maximum time, if desired. Moving forward, employers and employees should plan for the future taking this provision into account, and noting some of the issues and strategies set out above.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.