Immigration Update and Employer Immigration Update and Employer Compliance – What You Don’t Know Can Hurt You September 2014 Bill MacGregor
Introduction • Focus of presentation is on immigration compliance, recent developments, and what companies using Temporary Foreign Workers (TFWs) in Canada need to know to avoid problems Workers (TFWs) in Canada need to know to avoid problems • Trends: • Greater onus put on employers and their decision-makers G t t l d th i d i i k • Increased penalties and consequences for failure to comply • Failure to follow rules will negatively affect businesses that F il t f ll l ill ti l ff t b i th t employ foreign workers, or move personnel across borders • e.g. Visa or entry refusals; red flags on travelers; company reputation at g y ; g ; p y p visa office or border could be tarnished etc. 2
Penalties and Consequences Under IRPA (Canada’s immigration legislation) • S124 - violation if you employ a foreign worker in Canada without proper authorization • Deemed knowledge of violation unless you can show due diligence was used to determine whether Temporary due diligence was used to determine whether Temporary Foreign Worker (TFW) was authorized to work • S126/127 – violation where anyone directly/indirectly y y y misrepresents or omits to provide a material fact that “could induce an error” applying IRPA • Penalties include fines up to $100,000 and jail time P lti i l d fi t $100 000 d j il ti • Employers found non-compliant face 2 year ban from being able to use TFWs and new monetary penalties able to use TFWs, and new monetary penalties 3
Entering Canada for Business Purposes • Key Question: Does the activity in Canada require a work permit? • If not, may enter as a business visitor • Common misconceptions about work permit requirements: • Short visit = no work permit needed • No direct pay in Canada = no work permit needed p y p • What matters is the purpose of entry / activity • If a work permit is needed then must identify a category that • If a work permit is needed, then must identify a category that fits the worker and the purpose of entry 4
Canadian Work Permits • To work in Canada, TFW must usually obtain a Canadian work permit • A work permit is a document that sets out the occupation, work location and employer in Canada • Citizens of countries that require a Temporary Resident Visa Citi f t i th t i T R id t Vi (includes China) must apply at a visa office for a work permit • Must have properly prepared and documented supporting Must have properly prepared and documented supporting package for any application • There are two main work permit categories for Chinese nationals: 1. Intra-Company Transferee; or 2. LMIA (formerly call LMO) Based Work Permits 5
Intra-Company Transferee Work Permit Category • For employees at “executive” or “managerial” level, or who have “specialized knowledge” • Must: (1) be currently employed by; and (2) have worked full- time for at least 12 consecutive months in preceding 3 years for, a properly related foreign entity outside Canada for, a properly related foreign entity outside Canada • Must prove proper ownership relationship between foreign employer and Canadian (e.g. parent – subsidiary; two p y ( g p y affiliates owned by common parent company etc.) • Initial work permit granted for up to 3 years • Time cap of 5 years for specialized knowledge workers, 7 years for managers/executives • Special rules for start-up situations 6
Intra-Company Transferees – Specialized Knowledge • Canada changed “specialized knowledge” rules in June 2014 • Tougher definition of “specialized knowledge”: g p g • Applicant must show a high degree of both proprietary knowledge and advanced expertise • Must demonstrate advanced proprietary knowledge which is “uncommon M t d t t d d i t k l d hi h i “ knowledge of the company’s products or services and its application in international markets”; or “an advanced level of expertise of the company’s processes and procedures such as its production, research, p y p p p , , equipment, techniques or management”. • Mandatory wage floor introduced: TFW must be paid at least the prevailing wage for the occupation and location of work th ili f th ti d l ti f k • Changes make it more difficult to transfer specialist employees to Canada employees to Canada 7
Labour Market Impact Assessments / LMIAs • LMIAs (formerly called Labour Market Opinions/LMOs) are the basis for many Canadian work permits • Canadian or foreign employer may apply for permission to hire a TFW in Canada by applying to Service Canada • Employer must demonstrate that no qualified Canadians can be found Employer must demonstrate that no qualified Canadians can be found • Must meet strict recruiting rules (content, placement and duration of job listings) • Must pay at least prevailing wage for the occupation and location • Cannot use language (other than English or French) as a job requirement unless it is essential for the job in Canada • If LMIA is granted, the TFW may then apply for a Work Permit 8
New Regulatory Regime of January 1, 2014 • To “detect and deter employer non-compliance” • New IRPA Regulations introduced January 1, 2014 • Significant changes to IRPA Regulations • Many more statutory requirements put on employers (both for LMIA and LMIA exempt work permit situations) • Length of compliance period increased from 2 to 6 years (but not L th f li i d i d f 2 t 6 (b t t retroactive) • Broad powers of inspection granted p p g • Tougher “substantially the same” test 9
New Regulations: Tougher Employer Conditions For all TFW situations (LMIA based or LMIA exempt): • Must comply with laws regulating employment and recruiting • Must provide each TFW with “same occupation”, and wages and working conditions which are “substantially the same – but not less favourable than” the TFW’s offer of employment p y • Must make “reasonable efforts” to provide a workplace free from abuse • During the “period 6 years beginning on the first day of employment for which the work permit is issued”, (1) must be able to show any information provided to get LMIA or Work Permit was accurate AND p g (2) must retain any document that relates to IRPA compliance. • Failure to comply is only justified if employer “made all reasonable efforts” to comply 10
New Regulations: Inspection Powers Very broad inspection powers given to government officers: • May occur without a warrant at any place where TFW M ith t t t l h TFW works or did work in Canada • Investigators may demand any documents or access to I ti t d d d t t computer systems • Triggered randomly or where there is a concern (so a ( complaint to the government may trigger inspection) • Can occur anytime up to 6 years from first date of employment of TFW 11
Recent Overhaul of Canada’s TFW Program • Major changes to the TFW Program made June 20, 2014 • Affects almost all aspects of the program • Continues trend of placing greater compliance requirements on employers using TFWs • Split Canada’s program into two streams: • Temporary Foreign Worker Program, administered by ESDC/Service Canada, to deal with LMIAs (formerly LMOs) • International Mobility Program, administered by Immigration I t ti l M bilit P d i i t d b I i ti Canada, for all LMIA-exempt work permits 12
Recent Overhaul: New LMIA Regime • LMIA application fee increased to $1,000 (from $275) • New “high wage” v. “low-wage” job concept based on provincial median wage • New % cap on number of low-wage TFWs allowed per work site New % cap on number of low wage TFWs allowed per work site • Change reduces ability to use TFWs in lower skill positions • LMIAs for lower skill positions in accommodation, food LMIA f l kill i i i d i f d services and retail trade sectors can only be obtained in economic regions where unemployment rate is less than g p y 6% 13
Recent Overhaul: New LMIA Regime cont. • Employers must now usually provide a Transition Plan outlining activities to reduce reliance on TFWs outlining activities to reduce reliance on TFWs • Transition Plan will be assessed by Service Canada on subsequent LMIA applications • Employers must demonstrate compliance with the Transition Plan • New 10 Business Day LMIA processing for: (a) highest paid occupations i.e. where the TFW will work in an occupation/NOC that has a median wage that is in the top 10% of wages for the province where the job is top 10% of wages for the province where the job is located; (b) highest demand skilled trades; and (c) short duration (less than 120 days) entries 14
Recent Overhaul – Other Changes • New LMIA forms as of June: • Employers must provide more information on recruiting results Employers must provide more information on recruiting results • More employer declarations/representations in form • New Transition Plan form New Transition Plan form • Stronger compliance and enforcement mechanisms: • New monetary fines for non-compliance to be introduced N t fi f li t b i t d d • More resources to be put into employer inspections • International Mobility Program (non-LMIA work permits): • New work permit fees to be introduced • Enhanced employer compliance requirements 15
Recommend
More recommend
