February 21, 2011

From 1 April 2011, Citizenship and Immigration Canada (CIC) will have greater powers to scrutinize employer compliance with immigration and employment regulations.  On-site audits of compliance for employers of temporary foreign workers are likely.  In addition, immigration officials at every stage of the immigration process (i.e. both at visa offices outside Canada, at the port of entry to Canada and at CIC inside Canada) will have the power to request additional information on employer compliance at their discretion. Additionally, penalties for non compliance will be greater than before, and finally, a limit on duration inside Canada for certain work permit categories will be introduced.  Full guidelines have not yet been published but Pro-Link GLOBAL is able to offer the following summary of changes at this time.

Compliance Audits

From 1 April 2011, CIC will assess employer compliance with employment and immigration laws for the preceding two years (i.e. back to 1 April 2009) when reviewing work permit applications for temporary foreign workers.  Additionally, CIC will potentially be conducting spot checks and on-site audits to ensure that employers are complying with immigration and employment regulations.  Compliance includes meeting employment standards legislation in Canada, for example, minimum wage or overtime requirements, as well as meeting immigration compliance requirements, i.e. ensuring that all foreign workers have the necessary permission to work in Canada.  More information on employment standards can be found here and here.

Since CIC will be conducting more audits, and since all applications will be subject to increased scrutiny, Pro-Link GLOBAL strongly recommends that employers prepare in advance for the 1 April 2011 changes.  Employers should ensure that clear, detailed and easily accessible records of foreign workers, their employment conditions and immigration status should be maintained.  In addition, it is recommended that employers formulate written immigration policies and keep these on file and updated.  Pro-Link GLOBAL is happy to assist with these preparations; please contact us for assistance.

Increased Penalties

The new guidelines also increase the penalties that can be imposed on non-compliant employers.  Effective 1 April 2011, employers found to be non-complaint with immigration or employment laws when employing temporary foreign workers can be banned from hiring foreign workers for two years.  This change, of course, makes it even more important for employers to be in compliance and to be able to demonstrate compliance.  Since an employer’s compliance back to 1 April 2009 will be considered, it may seem too late for some employers to make amends – however, note that there may be justifications in certain circumstances.  Pro-Link GLOBAL will need to assess specific situations and will be happy to offer advise on a case-by-case basis.

Duration of Stay Limited in Some Categories

Finally, the new guidelines place a limitation on duration of stay for certain work permits.  Work permits which are issued subject to a Labor Market Opinion LMO) will now be renewable only up to a maximum duration of stay of four years, after which time the employee will be required to exit Canada and remain outside Canada for six years. Note that intra-company transferees or work permits issued under NAFTA will not be affected, as these are not subject to LMOs.  However, employers with employees in a restricted category who may wish to remain in Canada for longer than four years are advised to contact Pro-Link GLOBAL as soon as possible so that an assessment of other options, for example permanent residency, can be carried out.

ACTION ITEMS FOR EMPLOYERS

  • Prepare for increased scrutiny of applications and potential on-site audits; contact Pro-Link GLOBAL for assistance
  • Take note of increased penalties for non-compliance
  • Note that compliance back to 1 April 2009 will be assessed; contact Pro-Link GLOBAL if you have concerns
  • Note that work permits in some categories will be limited to four years duration in total; contact Pro-Link GLOBAL for case specific advise if you have employees likely to be affected by this.

Caveat Lector | Warning to Reader  

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification.  Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in Canada to provide this GLOBAL Brief to you.