May 03, 2013

Citizenship and Immigration Canada (CIC) and Human Resources and Skills Development Canada (HRSDC) have announced immediate, important changes to the Temporary Foreign Worker Program (TFWP) as outlined below. Under these new guidelines, there are real-world implications to Canadian companies accessing the program. HRSDC and CIC are strengthening their resolve to bring sanctions against any employers perceived to improperly sponsor temporary foreign workers at the expense of Canadians and permanent residents.

What’s Changed?

CIC and HRSDC are introducing legislative, regulatory and administrative changes.

Per CIC/HRSDC’s Press Release, the following changes will become effective as of April 29th:

  • Paying Current Prevailing Wages: Prior to the new regulation, Canadian company sponsors had the flexibility to pay temporary foreign worker wages up to 15% below the prevailing wage for a higher-skilled occupation, and 5% below the prevailing wage for a lower-skilled occupation, provided they could demonstrate that the wage being paid to a temporary foreign worker was the same as that being paid to their Canadian employees in the same job and in the same location. Effective immediately, CIC will require Canadian companies to pay temporary foreign workers at the prevailing wage by removing the above wage flexibility. Further information regarding prevailing wage rates for occupations in Canada can be found at the Working in Canada website.
  • Temporary Suspension of the Accelerated Labor Market Opinion Program (ALMO): Since May 2012, Service Canada has expedited the process by which Canadian companies could obtain LMO’s to sponsor highly-skilled foreign national workers. (An LMO evidences that there is a need for a foreign worker to fill a proposed job in Canada and that there are no readily-available qualified Canadian workers to fill the position.) Effective immediately, CIC is temporarily suspending the ALMO process to determine whether it is meeting its original objectives. There is no official indication as to when the ALMO program will be reopened.

Proposed Regulations:

  • Suspend and Revoke a Sponsor’s Ability to File LMO Applications: The Government is considering increasing its authority to suspend and revoke work permits and LMO’s if the program is being misused by an employer.
  • Prohibition on Oursourcing of Canadian Jobs: Additional questions will now be asked with the LMO application form to ensure the TFWP is not used to facilitate the outsourcing of Canadian jobs;
  • Work Force Transition Plans Required: Canadian companies must be able to demonstrate that a firm plan is in place to transition to a Canadian workforce over time through the LMO process. Companies will no longer be able to perpetually rely on foreign workers to fill labor shortages without clearly demonstrating efforts to recruit, train and if needed relocate Canadians to fill these positions.
  • Introduction of LMO Application Fees and Increase in Work Permit Application Fees: Processing fees will be introduced for company sponsors accessing the LMO process and an increase in fees for work permits so that taxpayers are no longer subsidizing the cost of running these program;
  • Official Language as a Job Requirement: Identify English and French as the only languages that can be used as a job requirement. Exemptions will only be given in specialized cases where a foreign language is an essential job requirement, such as tour guides, translators or performers.

In these cases, the onus will be on the employer to explain why a foreign language is a requirement of the job.

ACTION ITEMS FOR EMPLOYERS

As is often the case with national immigration policy, the Canadian Government is in the midst of addressing a recent public outcry over the Royal Bank of Canada allegedly abusing the TFWP through the outsourcing of jobs to foreign companies

(http://www.cbc.ca/news/canada/british-columbia/story/2013/04/05/bc-rbc-foreign-workers.html).

For those assignees that do not qualify under traditional LMO-exempt categories of work (e.g., Intra-Company Transferee or “ICT”, NAFTA Professional), the temporary suspension of the ALMO process will require that Canadian employers take immediate action to apply for new LMOs or extend existing LMOs well in advance of travel dates and work permit expiries. No longer can companies expect to obtain LMO approvals in under 10 days.

Further, for those assignees that do qualify for LMO-exempt work authorizations, Canadian companies must confirm that the foreign worker’s annual base salary meets the prevailing wage for that occupation.

Companies with operations in Canada are advised to work very closely with their Canadian immigration supplier to fully understand the impact these important changes will have on current foreign workers and future assignments to Canada.

Pro-Link GLOBAL will continue to monitor the situation as operational bulletins and policy manuals are updated and released.

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. This alert was prepared by Glenn Faulk, Senior Manager, Knowledge Management. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in Canada to provide you this update.

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