- 1. IMMIGRATION UPDATE Presented to: Franchisees Evelyn L.
Ackah, Managing Lawyer June 27, 2012
2. Immigration Update International recruitment becoming more
common Canadian economy requires more skilled workers HR the first
to know about potential immigration needs How to work
successfully/efficiently with external immigration law providers3
3. Part I TEMPORARY WORK PERMITS4 4. Canadian Work Permits The
temporary foreign worker program - governed by web of statutes,
regulations, policies and programs Significant discretion of
immigration /border officers leads to inconsistencies With security
and economic concerns, entry to Canada has also been more difficult
The new normal is constant change Employers must be proactive not
reactive 5 5. Canadian Work Permits Assessment of Type of Work
Permit: a) Is a work permit required? (The answer is almost always
"yes" if the person is being recruited to work in Canada) b) If
yes, is there an applicable LMO exempt work permit category under
the IRPA, a treaty (e.g. NAFTA, GATS), or a special program? c) If
not, a LMO (Labour Market Opinion) must first be obtained from
HRSDC (Service Canada)6 6. Immigration and Refugee Protection Act
(IRPA) Work defined as: an activity for which wages are paid or
commission is earned, or that is in direct competition with the
activities of Canadian citizens or permanent residents in the
Canadian labour market Under Canadian immigration law, foreign
nationals are prohibited from engaging in work or assuming
employment without first obtaining a work permit (there are limited
exceptions to this rule) 7 7. Using NAFTA LMO Exemption The
preferred tool to facilitate cross-border movement between Canada
and the U.S. Used for temporary entry - not permanent Must be a
U.S. or Mexican citizen Three main categories: 1) business visitors
2) professionals 3) intra-company transferees8 8. NAFTA: Business
Visitors Intended for short-term entry meetings, training, sales
activity Should ensure foreign nationals always have business
visitor letter when crossing border Remuneration must be paid from
outside Canada Cannot be engaged in work activity Must ensure
foreign national is prepared before attending at port of entry9 9.
NAFTA: Professionals Renewable indefinitely (can apply for permits
up to 3 years at a time) Must meet educational or experience
criteria Must be exercising the skills of the profession Must have
an offer or contract NAFTA lists 66+ professions including
Engineers, Geophysicists, Computer Systems Analyst, Scientific
Technician - Manager or Director are not eligible positions10 10.
NAFTA Intra-Company Transferees For employees at executive or
managerial level, or those who have specialized knowledge Must have
worked 12 continuous months in preceding 3 years for the foreign
related entity Must prove proper corporate affiliation of entities
Time caps: Up to 5 years for specialized knowledge workers and 7
years for managers Non-NAFTA Intra-Company Transfer category for
those who are not American or Mexican11 11. Part II Labour Market
Opinions12 12. The New TFW Regulations New Immigration regulations
became effective as of April 1, 2011 Changes focus on compliance
strengthening protection for FWs and limiting the duration of
temporary employment in Canada Minimize the potential for FW
exploitation and implementing stricter employer monitoring
mechanisms13 13. LMO Based Work Permits To increase employer
monitoring, HRSDC/CBSA/CIC have increased data collection and
access, closer monitoring of FW conditions, capped work terms
Priorities: Accurate Employer Information Genuineness Compliance
Cumulative Duration14 14. LMO Based Work Permits Employer
Information Database for history of each employer Signed statement
that employer will abide by Program requirements and have abided by
requirements Copy of business license/permit; proof of legitimate
existence as an active business15 15. LMO Based Work Permits
Genuineness Increased documentary requirements in determining
employer genuineness Actively engaged in business Offer must be
within reasonable business needs of the employer Employer must be
able to fulfill terms of offer Employer must show past compliance16
16. LMO Based Work Permits Compliance Increased enforcement of
regulations through Employer Compliance Reviews (ECR) Employers
must demonstrate past compliance by proving they met substantially
the same terms and conditions of employment as set out in previous
LMO17 17. LMO Based Work Permits Compliance Employers must meet the
substantially the same test (STS): Complied with the wages, working
conditions, and occupation set out in the original offer of
employment for each foreign worker employed by the employer This is
retroactive going back 2 years!18 18. LMO Based Work Permits What
Records Should be Kept to show Compliance? Wage and benefit
information Each FWs name, address, telephone number, job title,
detailed job description and location of work Expenses incurred
(directly or indirectly) during a recruiting process (including
proof of who was paid) Copy of LMO and WP All contracts/agreements
entered into with foreign workers and external recruiters Record
keeping is a must to be able to successfully pass an ECR 19 19. LMO
Based Work Permits Compliance With every new LMO application, HRSDC
has authority to review past compliance for every foreign worker
employed in the past 2 years If found not to have met compliance
requirements, must provide reasonable justifications If found not
to be compliant, can be listed on public website as non-compliant
employer and banned from using TFW program for 2 years 20 20. LMO
Based Work Permits Compliance Bad Employer List Public
non-compliance list maintained by CIC: To be posted on CIC website
Includes names/addresses of employers found non-compliant by either
CIC or Service Canada Employer will be notified of non-compliance
first21 21. LMO Based Work Permits Cumulative Duration Cap foreign
worker is permitted to work in Canada for an accumulated total of 4
years: Can apply again once 48 months has elapsed since the date
that the FW accumulated 4 years of work Several exceptions apply to
the 4 year cap22 22. LMO Based Work Permits Cap Exceptions FWs in
Managerial (NOC 0) and professional (NOC A) occupations FWs who
have applied for permanent residence and received a positive
assessment FWs who are employed under an LMO exempt category - such
as NAFTA based work permit or other international agreements23 23.
LMO Based Work Permits ALMOs Trusted Employers Starting April 25,
2012, trusted employers are eligible to apply for accelerated LMOs
reducing processing times of LMOs to about 10 working days
Attestation based LMO must consent to undergo ECR up to 20% of
employers using this program will undergo ECR To qualify for A-LMO
employers must: Have applied for and received approval for LMO
within the past 2 years Must be able to pass the Substantially the
Same (STS) test and have a clean record of compliance with the
program for 2 years Must comply with all workplace laws (provincial
and federal) Request is for a NOC O, A or B level position 24 24.
LMO Based Work Permits Changes in Evaluating Wages Employers
continue to be required to pay foreign workers the same wages they
pay Canadian workers performing the same job in the same location
The wages paid to foreign workers can now be up 15% less than the
average wage for skilled positions and up to 5% less than the
average wage for low-skilled positions if this amount is equal to
the wage being paid to Canadians25 25. Part III PERMANENT
RESIDENCE26 26. Permanent Residence CANADIAN EXPERIENCE CLASS
Temporary Foreign Workers with at least two years of fulltime (or
equivalent) skilled work experience in Canada are eligible to apply
for permanent residence through the CEC (will change to one year by
end of 2012) Post-Secondary Graduates (at least a two year program
or one year Masters program) Unlike other programs, the CEC allows
an applicants experience in Canada to be considered a key selection
factor when immigrating to Canada 27 27. Permanent Residence
CANADIAN EXPERIENCE CLASS Have knowledge of English or French and
take a language test Have worked at least 24 months of full-time
work experience or the equivalent part-time experience within the
36 months preceding date of application The work experience must
have been in NOC O, A or B managerial, professional, skilled or
technical occupations28 28. Permanent Residence ALBERTA IMMIGRANT
NOMINEE PROGRAM Employer driven process created to help address
critical skills shortages in province Leads to permanent resident
status on an expedited basis (compared to regular Skilled Worker
category) If nomination is granted, a work permit may be obtained
while PR application is processed Several streams: skilled worker,
semi-skilled stream, international graduate, employer driven,
trades person, engineer farmer 29 29. Permanent Residence ALBERTA
IMMIGRANT NOMINEE PROGRAM As of December 1, 2011 all Provincial
Nominees must apply for permanent residence through the Citizenship
and Immigration Canada (CIC) Centralized Intake Office (CIO) at the
Central Processing Centre in Sydney, Nova Scotia, Canada no longer
being processed by the Canadian Consulates overseas another recent
change by CIC30 30. Permanent Residence ALBERTA IMMIGRANT NOMINEE
PROGRAM AINP has recently stopped accepting applications for the
Family Stream and the US Visa Holder Streams31 31. Permanent
Residence FEDERAL SKILLED WORKER Selected as permanent residents
based on their education, work experience, knowledge of
English/French and other criteria that go towards their ability to
become economically establishedTo be eligible for processing, must
have: Valid offer of Arranged employment, or Have one year of
continuous full-time paid work experience in at least one of the 29
listed occupations or Be an international student enrolled in a PhD
program in Canada (or graduated from a Canadian PhD program within
the past 12 months32 32. Permanent Residence FEDERAL SKILLED WORKER
Work Experience Minimum Requirements: Work experience must be for
at least one year, continuous and paid (full-time or the equivalent
in part-time) and Skill type 0 (managerial) or Skill type A
(professional occupations) or B (technical occupations and skilled
tradesOnce Work Experience Requirements are met, application will
be processed according to the six selection factors in the skilled
worker points grid: Education Abilities in English and/or French
Work Experience Age Arranged Employment AdaptabilityTotal points
required is 67 33 33. Permanent Residence FEDERAL SKILLED WORKER In
addition, applicants must also show that they have enough money to
support themselves and their dependents after arrival in Canada For
the 29 eligible occupations as of May 8, 2012, the maximum of
10,000 FSW application has been reached now waiting on Ministerial
Instructions Only exception is for those with arranged employment
34 34. Part IV TIPS TO ENSURE SUCCESS35 35. Practical Pointers At
the Port of Entry: 1. Educate the person crossing the border 2.
Know the purpose of entry and your itinerary 3. Always be courteous
with immigration / border officers they have a lot of power and
discretion 4. Always be honest. This avoids potential
misrepresentations 36 36. Practical Pointers 5. Always travel with
proper supporting documentation and package (this includes Business
Visitors) 6. Travel during regular business hours. Then help can be
contacted if there are problems 7. Never insist on entry if
problems occur. May be allowed to withdraw the application. This
may be better than a refusal37 37. Why is immigration
planning/compliance important? Denial of LMO or work permits Could
result in removal of foreign workers if working without valid work
permit Costly to employer reputation (non-compliant employer list)
Heavy fines for employers if engaging unauthorized foreign workers
With passing of Bill C-35 earlier this year, employers must be
careful to ensure HR specialists are NOT working in capacity of
immigration representatives 38 38. Focus on Compliance - Summary
Employers must establish a culture of immigration compliance Obtain
extensions for work permits well in advance Keep up to date and
accurate records Be aware of how provincial legislation may relate
to FWs (i.e. OH&S, Employment Standards, etc.) Plan ahead
immigration applications take time 39 39. Focus on Compliance
Obtain extensions for work permits well in advance Ensure
compliance with special rules re: external recruiters Keep up to
date and accurate records Be aware of how provincial legislation
may relate to TFWs (i.e. OH&S, Employment Standards, etc.) Plan
ahead 40 40. THANK YOU! QUESTIONS?41 41. QUESTIONS? Ackah Business
Immigration Law 509 20th Avenue SW Calgary, AB T2S 0E7 (403)
452-9515 [email protected]
