On May 6, 2011, Citizenship and Immigration Canada announced changes to its Transit Without Visa (“TWOV”) Program.

Background

In July 2009, CIC in co-operation with the Canada Border Services Agency (“CBSA”) announced the formalization of the TWOV Program pilot at Vancouver International Airport (“VIA”) in July 2009. The TWOV Program allows certain foreign nationals with valid United States visas, travelling to and from the United States, to transit through Canada without having to first obtain a Canadian visa.

The objective of the TWOV Program is to facilitate the movement of bona fide travellers transiting through Canada while maintaining the security of Canadians and the integrity of Canada’s immigration and refugee protection programs. This program will also improve the international competitiveness of Canadian airports by making them more attractive to airlines and travellers originating from or destined to the United States.

Eligible Foreign Nationals

The TWOV Program applies only to nationals of the following four countries:

1. Indonesia;
2. The Philippines;
3. Taiwan (Note: does not apply to holders of the ordinary passport issued by the Ministry of Foreign Affairs in Taiwan with personal identification number. These individuals are already waived from a visa requirement.); and
4. Thailand.

In order to be eligible to travel under the TWOV Program, nationals of these countries must:

1. Be in possession of a valid visa issued by the United States;
2. Be in possession of a valid passport issued by the authorities of a participating country;
3. Hold a confirmed onward ticket for a connecting flight that departs Canada immediately (foreign nationals transiting Canada under the TWOV Program may not seek entry to Canada as temporary residents); and
4. Arrive in Canada on an airline that has an up-to-date TWOV Memorandum of Understanding (MOU) with CIC and the CBSA; and transit through an approved Canadian airport.

Eligible Airlines

The following airlines have an up-to-date TWOV MOU with CIC and the CBSA, and are therefore eligible to carry TWOV passengers:

1. Cathay Pacific Airways;
2. Philippine Airlines;
3. Air Canada; and
4. Jazz Aviation LP.

Eligible Airports

The TWOV Program was initially available through VIA. However, it has now expanded to include Toronto’s Pearson International Airport (“PIA”) (Terminal 1 only). Effective March 27, 2011 the only two Canadian airports at which this program is eligible are the VIA and PIA (Terminal 1 only).

On May 31, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 310, which discussed recent changes to the Labour Market Opinion (“LMO”) confirmation letters issued by Human Resources and Skills Development Canada (“HRSDC”).

In cases where a positive LMO has been obtained, the employer must provide a copy of the LMO confirmation letter to the foreign national, as CIC and the Canadian Border Services Agency (“CBSA”) require a copy to process the LMO-based work permit application. HRSDC’s Foreign Worker System (“FWS”) also interfaces with CIC systems to provide CIC and CBSA with electronic details about the job offer and the foreign national associated with the LMO confirmation letter.

Until recently, Annex A of an LMO confirmation letter included the name of a foreign national who would be entering Canada under that LMO. Where an LMO confirmation letter was issued for multiple positions, it was commonplace to include multiple names, as listed in Annex A. This presented a privacy risk because the LMO confirmation letter (including Annex A) was sent by the employer to all of the foreign nationals identified, thereby divulging personal information about each foreign worker contained in the LMO.

In response to this privacy concern, as of April 1, 2011, HRSDC implemented a change to their FWS that no longer allows the name of a foreign national to be included in an LMO confirmation letter. However, for the moment, LMO confirmation letters related to the Live-in Caregiver Program (“LCP”) and Arranged Employment Opinions (“AEOs”) will continue to show the name of the FN.

HRSDC continues to share the names of foreign nationals electronically with CIC and CBSA through the FWS interface for the purposes of administering the Temporary Foreign Worker Program. CIC and CBSA officers will only be able to verify a foreign national’s link to the LMO via an Employment Validation search in both Global Case Management System and Field Operations Support System.

During the recent Canadian Bar Association Citizenship and Immigration Conference in Gatineau, Quebec, representatives of the Central Intake Office (“CIO”) in Sydney, Nova Scotia, provided some helpful insight into its processing of Federal Skilled Worker (“FSW”) applications. The CIO screens all FSW applications in order to verify that submitted applications satisfy the Ministerial Instructions, which currently restrict who can apply under the FSW class.

The current Ministerial Instructions prohibit the acceptance of a FSW unless: (a) the applicant has Arranged Employment, or (b) the applicant has work experience in one of the 29 designated occupations within the last ten years. An applicant who does not have Arranged Employment is limited by a total quota of 20,000 FSW applications per year; each designated occupation itself is limited to 1,000 applications per year.

The quotas on the 29 designated occupations will be reset as of July 1, 2011. Of course, the Minister of Citizenship, Immigration and Multiculturalism can theoretically amend the list of occupations at any time, although there is no immediate indication that the list of designated occupations will be revised.

The CIO has confirmed that it renders a final decision regarding the eligibility of the applicant under the Ministerial Instructions. As this is a decision rather than a mere opinion, these determinations are considered “locked in.”

For example, if the CIO makes a determination that the applicant is eligible to file a FSW application based on Arranged Employment (because they are working in Canada on a valid work permit and have an indeterminate job offer), this eligibility will continue even if the person loses their job before the completion of their permanent residence case. The Canadian Embassy or Consulate will not re-visit the decision with respect to eligibility under the Ministerial Instructions.

Unfortunately, selection points for Arranged Employment are not considered “locked in.” As a result, the Canadian Embassy or Consulate will still deny an application if the applicant loses their job and no longer has at least 67 selection points due to the loss of his or her Arranged Employment selection points. Of course, if the applicant continues to have at least 67 points even after losing their Arranged Employment points, the application can still be approved.

The CIO has also stated that, if an applicant provides evidence that he or she is eligible based on both the Designated Occupations list and Arranged Employment, it will choose to make the determination based on Arranged Employment. The rationale for this policy is to conserve numbers available under the annual quotas. However, if the CIO concludes that the applicant is not eligible based on Arranged Employment, it will then consider his or her eligibility based on the Designated Occupation list.

I previously reported that, on August 4, 2010, the governor-general-in-council published amendments to the Immigration and Refugee Protection Regulations (“IRPR”), which were expected to adversely affect many temporary foreign workers (“TFWs”). These regulatory amendments became effective on April 1, 2011.

Just before April 1, 2011, Human Resources and Skills Development Canada (“HRSDC”) announced new forms and guidelines designed to address these regulatory amendments. I discussed these new HRSDC forms and guidelines here.

On April 1, 2011, Citizenship and Immigration Canada (“CIC”) finally issued Operational Bulletin 275-C, which provides operational instructions to both CIC and the Canada Border Services Agency (“CBSA”) in relation to the recent regulatory amendments to the Temporary Foreign Worker Program (“TFWP”). A summary of this operational bulletin appears below.

Employer Ineligibility List

Before beginning to assess an LMO-exempt work permit application, CIC and CBSA officers must verify that the employer named in the offer of employment is eligible to participate in the TFWP. Under the new TFW Regulations, an employer can be found to be ineligible to participate in the TFWP for a period of two years if it is determined that they have failed, without reasonable justification, to provide substantially the same (“STS”) wages, working conditions or employment in an occupation to any foreign national who has worked for them during the prescribed period. The prescribed period begins two years from the date that the request for an opinion or the application for the work permit was received.

Officers must always check the CIC TFWP Employer Ineligibility website as the first step in processing the application. If the employer is not listed on the website, the officer can continue with the processing. If the employer is listed on the website, the officer will refuse the work permit and make an appropriate note in the remarks (i.e. “Employer currently listed on Ineligibility list; work permit refused.”)

Genuineness and STS Assessments

STS Assessment

If the employer has hired TFWs in the past, officers must also perform an STS assessment to determine whether it has, during the past two years, provided substantially the same wages, working conditions and employment in an occupation as those items set out in the offer of employment to the TFW. In general, a negative STS decision is intended to make an employer ineligible in situations where it has been determined that there has been a difference in wages, working conditions or the occupation from an original job offer made by that employer to foreign nationals and for which there is no reasonable justification. A negative assessment of the STS requirement can result in a work permit refusal as well as the employer’s ineligibility to access the TFWP for a period of two years.

Since a negative STS determination makes an employer ineligible to hire TFWs for a period of two years, and this information will be made public on the CIC website, it is important that officers assess cases of possible negative STS carefully, and take into account the significance of the differences in wages, working conditions or occupation. More specifically, a negative STS assessment should reflect situations where the differences relating to wages, working conditions or occupation that were provided to a foreign national as compared to those in the job offer are considered detrimental or disadvantageous to the foreign national and/or would compromise program integrity.

Depending upon the circumstance, STS compliance is assessed by HRSDC, CIC or CBSA. If there is a negative STS assessment by HRSDC, the information is forwarded to CIC for review and decision concerning adding the employer to the Ineligibility List should an application for a work permit be submitted.

Under R183 (1)(b.1), a foreign national may not accept a job offer to work for an employer who is named on the ineligibility list and remain in legal status in Canada. This applies to new contracts and extensions of existing contracts. A foreign national may, however, continue to work for an employer who has been found ineligible until the end of the contract term if the ineligibility determination occurs subsequent to the start of employment, provided they have authorization to work. If one of these existing employees departs Canada and then reenters Canada on the same work permit to continue working for the same employer under the same contract or agreement, they are not in breach of any conditions or otherwise inadmissible.

For the STS assessment, until CIC and CBSA have the ability to search an employer database for information on an employer’s past history of employing TFWs and the related job offers, the STS assessments will consist mainly of checking the TFWP Employer Ineligibility website and the list of employers who have a negative opinion based on an STS assessment done by HRSDC. Initially, it is expected to be rare that a comprehensive STS assessment involving verification of proof of wages documents, or of complaints related to working conditions, will be done unless information indicating non-compliance with past offers on the part of the employer becomes available to the officer during the work permit processing for the foreign national, and the officer submits a request for a more rigorous STS assessment to be conducted. Commencing April 1, 2011, Operational Management and Coordination Branch (“OMC”) of National Headquarters (“NHQ”) will review any requests for full STS assessments.

HRSDC Genuineness Assessment for LMO-Based Cases

For LMO-based applications and extensions, HRSDC will assess the employer’s past record and the genuineness of the job offer and will provide details of this to CIC and CBSA. HRSDC will use information provided in the employer application, and as required will verify information. Officers can continue to view details of the HRSDC opinion using existing system functionality. Reports of negative genuineness and STS assessments will be sent from HRSDC to NHQ and, until an employer database can be developed, will be manually shared with officers.

A negative assessment of the job offer/employer will result in a negative opinion from HRSDC, and could result in refusal of the associated work permit application. Where the refusal is based on a negative STS determination, it could also lead to placement of the employer on the ineligibility website.

This relieves HRSDC from the obligation to provide any opinion to such an employer for 2 years. However, this does not prohibit an LMO-exempt work permit application, where that employer is identified in the job offer, from being received by CIC or CBSA. Future system enhancements are expected to allow CIC or CBSA officers to view past HRSDC, CIC and CBSA assessments of employers (matched by a common Employer ID).

CIC and CBSA Genuineness Assessment LMO-Exempt, Employer-Specific Occupations

For LMO-based job offers, HRSDC will have already assessed employer STS and genuineness, consistency of the job offer with federal/provincial/territorial laws and labour market impact. Therefore, if the officer is satisfied with the opinion, he/she can continue with processing the work permit and the assessment of the worker. However, in a case where an LMO is not required, CIC/CBSA officers are required to assess employers and the job offer against the applicable criteria.

The four factors of employer genuineness that must be assessed are as follows:

1. Job offer was made by an employer who is “actively engaged” in the business: Should an employer’s information raise concerns with respect to an employer’s active engagement in their business, or if the officer is aware that this employer is new to the TFWP, the officer may request the information listed in the new Employer Declaration or consider an internet search and/or conducting a comprehensive assessment by requesting the employer’s T4 Summary of Remuneration paid and/or other relevant business documents. If the employer is unknown to the officer, or is a start-up company, the officer may request the employer provide a copy of their business contract (for their work in Canada). Officers can also consider requesting an attestation by a lawyer, notary public or chartered accountant substantiating that they are actively engaged in the operation of their business in Canada. The refusal of an employer to supply information to satisfy this assessment will result in a refusal to issue the work permit.
2. Job offer is consistent with the reasonable employment needs of the employer: Officers must be satisfied that the offer of employment is reasonable in relation to the type of business the employer is engaged in. Should the program officer have questions with regards to this genuineness factor, he/she could either write or call the employer requesting more information. The employer must be able to satisfactorily explain the role the TFW(s) will play in their business and that it is a reasonable employment need, both in terms of occupation and business-wise. The refusal of an employer to supply information to satisfy this assessment will result in a refusal to issue the work permit.
3. Employer is reasonably able to fulfill the terms of the job offer: Whether the employer is a well-known frequent participant of the TFWP can be used to determine whether additional documentation will be required to render an opinion on this factor. If the employer is unknown to the officer, additional documentation could be requested, if not already provided, such as: (i) T4 Summary of Remuneration paid, (ii) T2 schedule 100/125 (if employer is a corporation), T2125/equivalent financial statement (if sole proprietorship or partnership), (iii) Workers’ compensation clearance letter. Foreign employers may be requested to provide: (i) business contracts, or (ii) business documents similar to those requested for business visitors, entrepreneurs or other business category applicants in the host country. If the officer is otherwise satisfied with the assessment, but media sources reveal information that would lead the officer to doubt the employer’s ability to fulfill the terms of the job offer; or if the employer is, or has been, the subject of a serious complaint, infraction or investigation, the officer should contact OMC. The failure of an employer to satisfy this assessment will result in a refusal to issue the work permit.
4. Employer or their authorized recruiter has shown past compliance with federal/provincial/territorial laws that regulate employment or recruitment in the province where the foreign national will be working: For the purpose of this assessment, federal and provincial laws are defined as laws related to the regulation of employer consultants and/or recruiters (“ERs”), as well as the employment of TFWs, Canadians and Permanent Residents. Violations by ERs and/or third parties reported by federal and/or provincial government department or ministries could be considered whether the violations involved Canadians, Permanent Residents or TFWs. CIC is working with provinces and territories to establish a process by which we can determine which convictions should be a basis for a work permit refusal, but this work has not yet been completed. In the meantime, officers can and should consider information they might have regarding employer non-compliance with federal or provincial laws, but additional inquiries would be required to support a refusal on the basis of R200(5)(d). Please note the following:
   • If a recruiter, who is working for the employer, is not licensed in a province that requires by law, that TFW recruiters/employment agencies must be licensed (i.e. Manitoba’s Worker Recruitment and Protection Act and Alberta’s Fair Trade Act), by the province, a work permit can be refused.
   • If, during the processing of a work permit application, it becomes known that the TFW paid recruitment fees, contrary to provincial legislation (i.e. Alberta and Manitoba) this would NOT necessarily result in a work permit refusal under R200(5)(d) since the employer or recruiter may not yet have been found guilty by the province. Details should be forwarded to OMC for transmission to the province for investigation. It is important to note that under the requirements of the Low Skilled Pilot and the LCP, workers cannot be charged any recruitment fees (i.e. fees for finding the foreign national a job, not fees related to applying for a work permit). In these cases a work permit could be refused under another genuineness factor.

   The refusal of an employer to supply information to satisfy this assessment can also result in a refusal to issue the work permit..

For work permit extension requests, the same genuineness factors apply. If the employment offer is found to be non-genuine under any one of the four genuineness factors, the officer is to refuse the work permit.

Live-in-Caregiver Program (“LCP”)

LCP opinion requests received on or after April 1, 2011 will be assessed by HRSDC against the new LCP-specific assessment factors in accordance with the regulations which came into force on that date. The new LCP-specific assessment factors will not apply to LCP opinion requests received by HRSDC prior to April 1, 2011.

In addition to the new requirements associated with genuineness, STS, and consistency with federal-provincial/territorial agreements, failure to meet one or more of the 3 new LCP factors can also result in a negative opinion or a refusal to issue the work permit to an LCP applicant. The three new LCP-specific factors assessed by HRSDC as part of their opinion processing are as follows:

1. The foreign national will reside in a private household in Canada and provide childcare, senior home support care or care of a disabled person in that household without supervision;
2. The employer will provide adequate furnished and private accommodations in the household; and
3. The employer has sufficient financial resources to pay the caregiver the wages offered.

In addition to assessing the three factors noted above, HRSDC will review the proposed employment contract signed by the employer and prospective caregiver to ensure the terms of the contract meet LCP requirements. In assessing the prospective caregiver’s LCP work permit application, visa officers are also expected to review the contract that has been signed by the employer and caregiver, to ensure that the terms of the contract meet LCP requirements.

The signed employment contract provided in support of the prospective caregiver’s work permit application should be consistent with the employment contract provided to HRSDC by the employer in support of their LMO application. However, it may be necessary for the employer and prospective caregiver to renegotiate some aspects of the employment contract.

If the contract is revised after being approved by HRSDC as part of the employer’s LMO application, any changes to the contract must be clearly identified and explained in the version provided to the visa office as part of the prospective caregiver’s work permit application. Any revised employment contract must bear the signatures of both the employer and prospective caregiver. If the revised contract has hand written changes, the original wording must remain legible, be struck out and the signatures of both parties must appear next to any change, indicating mutual agreement.

Visa officers should also assess the genuineness of the job offer and LCP-specific factors, and must satisfy themselves that all LCP requirements are met in making a determination to issue a work permit under the LCP. Officers should avoid duplicating the upfront assessment of employer genuineness and LCP-specific factors undertaken by HRSDC and should generally base their decision on HRSDC’s assessment. However, as a general guideline, officers are encouraged to re-assess these factors if they have reasonable grounds to consider that these elements are not being met or there may be a question as to whether these elements continue to be met.

For instance, visa officers may decide to re-assess and confirm the employer’s financial capacity to honour the terms of the employment contract if a significant amount of time has elapsed since HRSDC’s initial assessment at the time the work permit application is being assessed at the visa office. Similarly, re-assessment of the LCP-specific factors may be warranted as the result of information obtained through an interview of the prospective caregiver in the course of processing the work permit application (e.g. the caregiver’s understanding of the job duties, working conditions, wages, etc. are inconsistent with the information in the contract).

The level of assessment to be done by a CBSA officer or an officer at CPC-V also depends on the extent to which they are satisfied by previous assessments of the three LCP-specific factors done by HRSDC and/or the visa office. POE and inland officers need to be aware of the new changes, but will generally continue status quo processing of live-in caregivers. Only if during the POE exam, or during assessment of a LCP work permit application at CPC-V, evidence suggests these elements are not being met, would a CBSA or CPC-V officer likely consider it necessary to further explore and re-assess these LCP-specific provisions.

For the LCP, HRSDC is responsible for conducting the STS assessment in order to provide an opinion as to whether, over the past two years, employers who are applying for an LCP opinion and who have hired TFWs in the past provided the wages, working conditions and employment in an occupation that were substantially the same as those items set out in the offer of employment to the foreign national.

Consistency with Federal-Provincial/Territorial Agreements

Using the authority found in R204(c), CIC and Provinces/Territories (“PTs”) have developed Annexes that deal with the entry of temporary foreign workers to respond to Provincial/Territorial labour needs. The Annexes support federal-provincial/territorial cooperation through various means, including some provincial/territorial directed LMO exemptions, and pilot projects.

HRSDC will assess the employer for all LMO-required job offers, which will include ensuring consistency with the terms of any federal-provincial/territorial TFW Annex agreement in place that apply to the employers of foreign nationals. Employers will be advised if the job for which they are seeking to hire a TFW falls under a pilot program under a federal-provincial/territorial agreement where they would be exempt from the requirement to obtain an LMO. HRSDC will also advise employers of any applicable obligations under a federal-provincial/territorial agreement, for example, where a Workplace and Orientation Plan for TFWs is required.

CIC and CBSA officers will verify that the foreign national meets the eligibility requirements outlined under these pilots or programs. Failure to meet these criteria can result in a work permit refusal.

As per TFW Annexes currently in place, a province can allow an employer to select TFWs to work temporarily in their province outside of the Provincial Nominee Program. If information becomes available to an officer subsequent to the province’s verification that leads the officer to question the genuineness of the employment offer, or suggests the employer has not met the STS test the officer may refuse the issuance of the work permit based on the genuineness or STS factors of the new TFW regulations. The officer may also refuse the work permit application for any other breach of the applicable regulations.

Cumulative Duration Limit

The new regulations impose a four-year cumulative duration limit on most TFWs. The accumulation of time time worked toward this four-year limit began on April 1, 2011; prior periods of work will not count towards the four-year calculation. This means that refusals of work permits as a result of this prohibition will potentially begin April 1st, 2015.

Work permits may be issued prior to 2015 for a shorter duration than requested by the employer in cases where the foreign national will soon reach the maximum time worked in Canada. Additionally, work permits may be refused if the foreign national is close to reaching their maximum time worked and the officer is not satisfied that the foreign national will return home if a work permit were to be issued for a short duration (i.e. one month).

All work in Canada counts towards the four-year total, including work done while under implied status, unless the work was performed during a period in which the foreign national was authorized to study full-time in Canada. Once a foreign national has accumulated four years of work (Definition R2), this regulation authorizes an officer to refuse to issue the foreign national another work permit. A TFW who spends four consecutive years either: (a) outside of Canada, or (b) in Canada but provides evidence of not working, can start accumulating another four years of work.

If the foreign national is seeking to enter Canada to do work that does not require a work permit (i.e. R186) there is no basis to refuse entry. Similarly, if a foreign national is intending to work in an occupation that is included in the exceptions to work permit refusals based on cumulative duration, the work permit would not be refused on this basis.

The following categories of work permits are considered exceptions to the four-year cumulative duration limit:

1. Foreign nationals seeking to work in managerial (NOC O) and professional (NOC A) occupations;
2. Foreign nationals seeking to work in Canada who fall under one of the exceptions in Annex B [International agreements (R204), Canadian interests (R205), Self-support (R206), Permanent Residence Applicants in Canada (R207), and Humanitarian reasons (R208)];
3. With regard to spouses and dependants of TFWs who are LMO-exempt, only spouses and dependents of TFWs in managerial (NOC 0) and professional (NOC A) occupations would not be refused a work permit based on the cumulative duration provisions; and
4. Permanent Residence Applicants: Foreign nationals who have applied for permanent residence (PR) and who have received a positive assessment in the PR category for which they have applied as follows:
   • A Certificat de sélection du Québec (“CSQ”) if applying as a Quebec Skilled Worker;
   • A Provincial Nominee Program (“PNP”) certificate if applying as a provincial nominee;
   • An approval in principle letter if applying under the Live-in Caregiver Class;
   • A positive selection decision if applying under the Federal Skilled Worker Class;
   • A positive selection decision if applying under the Canadian Experience Class.

All other groups (i.e. workers in NOC B, C, and D level occupations) would be subject to the cumulative duration limit of four years.

With regard to the accounting of work periods for the purpose of cumulative duration, the approach envisioned is that the duration of the TFW’s work permit would generally indicate the actual period of work for the calculation of cumulative duration. The calculation would take into account periods not actually worked, if the TFW can satisfy a CIC officer, using appropriate documentation, that there were breaks in work due to legitimate reasons (such as extended sick-leave, maternity leave, absence from Canada, etc.). The foreign national is also expected to advise of any periods of work while not on a work permit (R186).

A TFW’s work permit will be deemed to equate with his/her period of employment, unless there is evidence of a gap that clearly should not be counted towards the 4-years’ cumulative duration pursuant to 200(3)(g). A TFW will be considered to be working during any period of employment for the purposes of the cumulative duration calculation, even while not on a WP, unless the work was performed when the foreign national was a full-time student.

In some cases a TFW will work in Canada for a period of time, leave the country or change status so as not to be working in Canada, then begin additional periods of work. These periods of work need to be added together to determine whether the TFW has attained the four years’ cumulative duration.

If a TFW wants to demonstrate that some of his/her work permit was not used to work in Canada, the TFW will need to provide evidence to the officer that this was the case. A TFW’s work permit in combination with the evidence provided by the TFW as to actual periods not worked during the validity period of a WP or worked but not on a WP, where applicable, will be deemed to constitute the period of time worked in Canada. Eligible gaps in employment could include the following:

1. Periods of time spent outside of Canada;
2. Periods of medical leave spent in Canada, if this period is not covered by the employment contract/agreement; and
3. Maternity/paternity leave spent in Canada.

The following is a non-exhaustive list of documents that might establish eligible gaps in employment:

1. Passport entry and exit stamps.
2. Official documents indicating that the employment started and/or ended on certain dates; for example, a Records of Employment submitted by employers to Service Canada or proof of receipt of severance pay.
3. Letter from a foreign educational institution stating that the TFW was attending their institution for a period of time during the work permit authorization.
4. Travel receipts including ticket and boarding passes demonstrating that the TFW was out of the country for a period of time during the work permit authorization, other than a period of paid leave (e.g. sick leave, vacation leave) from their employment; compare with information regarding period of employment to see whether leave was covered by contract terms.
5. Proof of receipt of maternity/parental benefits.
6. Letter from physician confirming TFW was on medical leave for a certain period of time; compare with information regarding period of employment to see whether leave was covered by contract terms.
7. In Alberta, if a foreign national did not complete the full duration of a work permit due to poor working conditions, a letter can be provided by the TFW Advisory Office.
8. For TFWs working under a Group of Employers (“GOE”) agreement, there may be short periods of no work between projects, and a letter from the GOE Administrator can be accepted.

When processing an LMO request, HRSDC will not verify the accumulated time worked in Canada for any foreign nationals named in the LMO. If the opinion is still valid, and the TFW named on the LMO has been refused a work permit due to reaching the maximum time allowed to work in Canada, the employer can submit a request to HRSDC under the same system file number to select another TFW for the LMO.

Last year, Human Resources and Skills Development Canada announced that on September 30, 2010, the IT Worker Program would come to an end, except for employers wishing to hire foreign workers for positions in British Columbia and Quebec, where the program was expected to remain in place for a limited time after September 30, 2010. Citizenship and Immigration Canada has now confirmed that the IT Worker Program will continue in Quebec until further notice and in British Columbia until September 30, 2011. Our IT Worker Program article has been updated to reflect this fact.

On December 8, 2010, I previously reported that the governor-general-in-council had published amendments to the Immigration and Refugee Protection Regulations (“IRPR”), which would affect the Temporary Foreign Worker Program (“TFWP”). These amendments will become effective on April 1, 2011.

Unfortunately, many questions regarding how these amendments will be implemented remain unanswered. Neither CIC nor CBSA has provided guidance on how these amendments will affect the processing of work permits. To date, only HRSDC has provided any significant information on how these amendments will affect the TFWP.

HRSDC has announced that new LMO application forms will be available as of March 25, 2011; these new forms will be specific to each stream under the TFWP (i.e. Live-in Caregiver Program (“LCP”), Seasonal Agricultural Worker Program, etc.). Among other things, the new forms will require:

1. The Canada Revenue Agency (“CRA”) business number of the employer;
2. A description of the employer’s main business activities (not required for the LCP);
3. An explanation of how hiring a Temporary Foreign Worker (“TFW”) meets the employment needs of the employer; and
4. A signed statement attesting that the employer will abide by the TFWP requirements.

All LMO applications submitted on or after April 1, 2011 must use these new forms.

As HRSDC will have the authority to conduct a genuineness assessment of any job offered to a TFW and to verify that returning employers have lived-up to employment requirements stipulated in previous LMO, employers may be asked to submit additional documentation to support their LMO application. A summary of this additional documentation appears below:

All Program Streams Except the LCP Stream

When applying for an LMO, all new employers to the TFWP will be required to provide a copy of their business licence or permit. They may be asked to provide other evidence of their business in lieu of or in addition to a business licence or permit.

The genuineness of the job offer made to the TFW will be assessed based on whether the:

1. Employer is actively engaged in the business in which the job offer is being made;
2. Job offered to the TFW meets the employment needs of the employer, and is consistent with the type of business the employer is engaged in;
3. Employer can fulfil the terms and conditions of the job offer; and
4. Employer, or the third party representative acting on behalf of the employer, is compliant with the relevant federal provincial/territorial employment and recruitment legislation.

LCP Stream

As of April 1, 20011, the following documentation must now be submitted along with the new LMO application for all LCP stream cases:

1. 1) Proof of age or disability for the person requiring care:
• Child – long-form birth certificate or official adoption documents. If these are not available, any other official document issued by a government authority demonstrating the child to parent relationship (e.g. original birth certificate for children born abroad translated into English or French).
• Senior – birth certificate, Old Age Security Identification Card, passport or any other official documents showing the date of birth of the senior requiring care.
• Disabled person – medical certificate stating that the disabled person requires care (but not the nature of disability).
2. A detailed description of the private accommodations provided to the live-in caregiver.
3. An Option C-printout that any taxpayer can obtain from the CRA, proving that the employer has the income necessary to pay the live-in caregiver.

Employers may also be required to provide, if requested by HRSDC, a provincial workers compensation clearance letter or other appropriate provincial documentation.

The genuineness of the job offer made to the live-in caregiver will be assessed based on whether the employer:

1. Demonstrates a reasonable need for a full-time live-in caregiver to provide child care, elder care or care for a disabled person;
2. Can provide adequate, private accommodations to the live-in caregiver;
3. Has sufficient financial resources to pay the live-in caregiver.
4. The employer, or the third party representative who recruited the live-in caregiver on behalf of the employer, must be compliant with the relevant federal-provincial/territorial employment and recruitment legislation.

Additional Requirements for Returning Employers

All returning employers must demonstrate that they have met the terms and conditions of employment set out in previous LMO confirmation letters and annexes (if applicable). In addition, some employers may be required to submit documentation to support a more detailed employer compliance review including any or all of the following documents:

1. Payroll records;
2. Time sheets;
3. Job descriptions;
4. Copies of the employer-employee contract;
5. Collective agreements (not applicable in LCP cases);
6. The TFW’s work permit (not applicable in LCP cases);
7. Provincial workers compensation clearance letter or other appropriate provincial documentation;
8. Receipts for private health insurance (if applicable);
9. Receipts for transportation costs; and
10. Information about accommodations provided by the employer.

If it appears that employers did not fully respect the terms and conditions of employment set out in the LMO confirmation letters and annexes (if applicable), the employer will have the opportunity to provide a rationale. In this case, HRSDC will work with the employer to implement the appropriate corrective action, which may include providing compensation to the TFW of live-in caregiver. Employers may be found non-compliant if they refuse to provide a rationale and/or provide only partial compensation to the TFW or live-in caregiver.

On February 13, 2011, Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism announced that, in 2010, Canada welcomed the highest number of legal immigrants in more than 50 years (280,636 permanent residents). A day later, New Democrat immigration critic Olivia Chow stated during a press conference that information obtained under an Access to Information Act request revealed that the federal government intends to further reduce the immigration targets for parents and grandparents from 15,300 in 2010 to 11,000.

According to Citizenship and Immigration Canada’s website, it is currently taking 41 months for the sponsor to be assessed in the case of parents and grandparents. Assessment of sponsors is the first stage in family sponsorships. After that, it can take between 12 and 45 months to complete the permanent residence process, depending on the country. With these proposed reductions, the wait time will become even longer.

In defending the Canadian Government’s decision, Minister Kenney stated that there are trade-offs and the Canadian Government is focused on the priorities of Canadians, which are economic growth and prosperity. He also said that Canada needs more newcomers working and paying taxes and contributing to our health care system and this is the focus of Canada’s immigration system. Kenney also stated that spouses and children of Canadian citizens and permanent residents continue to be the priority in the case of family sponsorships and that parents and grandparents can still come to Canada for visits while their cases are pending.

Critics have responded by saying that restricting the number of parents and grandparents who can come to Canada to join family members here may deter those same skilled immigrants that the Canadian Government is trying to attract. According to Liberal Foreign Affairs critic Bob Rae, many of the skilled immigrants that Canada wants to attract come because they believe they can sponsor their relatives; if they can’t do it, it is going to affect their choice of country. New Democrat immigration critic Olivia Chow also criticized the Conservative position, saying that parents and grandparents do not drain the system. Liberal MP Joe Volpe, a former immigration minister, also criticized the Conservative position. According to him, the Conservatives tell families to be responsible for their own child care when parents go to work, but this ignores the fact that new Canadians entering the workforce often rely on parents and grandparents for child care and help around the home.

It seems self-evident that many new immigrants rely on their extended families, in particular parents and grandparents. The current delay in processing family sponsorships for these family members likely discourages at least some immigrants from choosing Canada over other countries. The additional wait time that will inevitably result from the reduced immigration targets for these extended family members will only make it worse.

It remains to be seen what effect this will have on the foreign recruitment of skilled workers in future years.

Earlier this month, the QMI Agency (“QMI”) reported that senior Citizenship and Immigration Canada (“CIC”) officials had said illegal work experience could count towards a permanent residence application filed under a Provincial Nominee Program (“PNP”). According to QMI, Jacqueline Desjardins, senior analyst at CIC’s national headquarters wrote the following in an e-mail, “We can count illegal work [in Canada] for PNP, but at the same time we need to have a confirmation of the illegal work.” Desjardins’ statement that illegal work could count towards a full immigration application apparently came in response to an e-mail query circulated around the immigration department.

Could this really be true? Soon after the QMI story was released, the Toronto Sun reported that Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, had “overruled” Ms. Dejardins. Kenny’s spokesperson said, “We were outraged to hear that illegal work experience could count in favour of an applicant for permanent residency.” Even NDP immigration critic Olivia Chow chimed in and said that she didn’t know what officials were thinking in approving illegal work experience.

But what really was CIC’s policy? Did the Federal Government previously allow the use of illegal employment in Canada to support permanent residence applications filed under the PNP program and did it later pull back from this position due to negative public opinion? It is more likely that Ms. Desjardin’s initial statement was just incorrect. So Minister Kenny did not actually “overrule” her; it is probably more accurate to say that he simply corrected an erroneous statement.

According Subsection 41(a) of the Immigration and Refugee Protection Act (“IRPA”), a foreign national, who through an act or omission which contravenes, directly or indirectly, any provision of IRPA is inadmissible to Canada. Illegal employment in Canada by a foreign national contravenes IRPA and therefore results in inadmissibility. In many cases, foreign nationals who work illegally in Canada will also violate other laws, such as income tax laws, which may result in additional inadmissibility.

Of course, this does not mean that illegal employment that took place outside of Canada cannot be counted in a PNP application. Each province sets its own criteria for eligibility and, while these criteria cannot contradict IRPA, PNPs have the discretion to recognize work experience gained illegally outside Canada.

For example, the website of Opportunities Ontario (Ontario’s PNP program), states only that for work experience obtained in Canada, it will accept full-time work experience that is verifiable, relevant, paid and obtained with proper work authorization from Citizenship and Immigration Canada. It does not require employment experience obtained in a different country to have been acquired in accordance with a work authorization from that country’s immigration authorities.

Citizenship and Immigration Canada has announced that, effective December 23, 2010, if you are submitting a language test with your application, the results are now valid for 2 years from the time you took the test, instead of 1 year. This change applies to Federal Skilled Worker, Canadian Experience Class and Business Class Immigrants (which includes Investor, Entrepreneur, and Self-Employed categories).

On November 24, 2010, Citizenship and Immigration Canada (“CIC”) announced that it was implementing a pilot project to fulfill its commitment under Section 4.3 of the Temporary Foreign Worker Annex of the Canada-Ontario Immigration Agreement, which was signed in August 2008. Guidelines for the pilot project appear in Operation Bulletin 229, published by CIC.

Under Article 4.3 of the Annex, where a Canadian permanent resident or Canadian citizen who has left Canada returns to Canada to re-establish his or her residence in Ontario and work in Ontario as a Skilled Worker, and he or she is accompanied by a foreign spouse or common law partner and/or dependents, Canada agrees to issue open work permits to that spouse or common law partner and those dependents upon application, provided the applicants are otherwise legally able to work in Ontario. These open work permits should have a validity period of two years. Article 4.4 of the Annex also exempts these dependents from the requirement to obtain a Labour Market Opinion (“LMO”).

The 18-month pilot program will operate from November 24, 2010, until May 24, 2012, inclusive. These dates refer only to the dates on which qualifying work permits can be issued, not to the duration of the work permits. A review of the pilot program will take place after 12 months of operation.

This all sounds very promising but, upon further review, it is clear that this pilot project does not go far enough. Operational Bulletin 229 states that, for the purposes of the pilot, occupations for the Canadian or Permanent Resident re-establishing in Ontario are limited to health professionals and academics in post-secondary public institutions.

While this pilot project is certainly welcome, most returning Canadians and permanent residents will not fall within its parameters. It is hoped that, once the pilot program has ended, CIC will implement a permanent program that extends to spouses, common-law partners, and dependent children of all skilled Canadians or permanent residents returning to Ontario.