Blaney McMurtry partner Henry J. Chang was recently chosen by Who’s Who Legal as one of the top 15 most highly regarded corporate immigration lawyers in the World for 2013, in its annual worldwide research of law firms. Who’s Who Legal is the Official Research Partner of the International Bar Association and Strategic Research Partner of the ABA Section of International Law.

In addition to this recognition, Mr. Chang is also listed as a leading practitioner in the field of immigration law the Lexpert Canadian Legal Directory, recognized as an expert in immigration law by Best Lawyers, and holds an AV (Preeminent) peer rating from Martindale Hubbell in the field of immigration law.

Introduction

As part of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan (the “Action Plan”), Canada and the United States agreed to establish a common approach to screening visa-exempt foreign nationals in order to identify threats before they arrive in the North American perimeter.  On December 7, 2013, Citizenship and Immigration Canada (“CIC”) published a Notice of Intent in the Canada Gazette, indicating its intention to introduce an Electronic Travel Authorization (“eTA”) Program in Canada.  The eTA program will be similar to the Electronic System for Travel Authorization (“ESTA”) Program, which currently applies to foreign nationals who enter the United States under the Visa Waiver Program.

Overview of the eTA Program

Once implemented, the proposed amendments to the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) would require most visa-exempt foreign nationals to apply for and obtain an eTA registration before entering Canada by air (but not by land).  By screening visa-exempt foreign nationals before they arrive in Canada (by air), the Government of Canada hopes to prevent foreign nationals who are inadmissible or who do not meet the requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) from travelling to Canada.

The Notice of Intent states that, because Canadian citizens are currently exempt from the ESTA requirement in the United States, United States citizens travelling to Canada will be exempt from the eTA requirement.   It also states that the following foreign nationals, who are described in Subsections 190(2) and (2.1) of the Regulations, will be exempted from the eTA requirement:

• Holders of passports that contain a diplomatic acceptance, a consular acceptance or an official acceptance issued by the Chief of Protocol for the Department of Foreign Affairs and International Trade on behalf of the Government of Canada and who are a properly accredited diplomat, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies, or of any international organization of which Canada is a member;
• Holders of passports or travel documents issued by the Holy See;
• Holders of national Israeli passports;
• Holders of passports issued by the Hong Kong Special Administrative Region of the People’s Republic of China;
• Holders of passports issued by the United Kingdom to a British National (Overseas), as a person born, naturalized or registered in Hong Kong;
• Holders of passports issued by the United Kingdom to a British Subject which contains the observation that the holder has the right of abode in the United Kingdom;
• Holders of ordinary passports issued by the Ministry of Foreign Affairs in Taiwan that includes the personal identification number of the individual; and
• Citizens of Lithuania or Poland if they hold machine readable passports that contain a contactless integrated circuit chip and that is issued by Lithuania or Poland.

According to the Notice of Intent, the following travellers could be subject to the eTA requirement:

• Citizens of current visa-exempt countries listed in Subsection 190(1) of the Regulations, other than citizens of the United States, and foreign nationals travelling with passports listed under Subsections 190(2) and (2.1); and
• Foreign nationals currently listed in Subsection 190(3) of the Regulations, which include (among others):
  • Air crew members;
  • Foreign nationals transiting through Canada under the Transit Without Visa Program or China Transit Program; and
  • Foreign nationals re-entering Canada after a visit solely to the United States or Saint-Pierre and Miquelon, provided that the requirements of Paragraph 190(3)(f) are met.

The proposed regulatory amendments would specify that foreign nationals who require an eTA must apply online through the CIC Web site by entering mandatory biographic, passport and background information similar to the information that is currently requested by immigration officers at ports of entry or in applications for a temporary resident visa.  These background questions are designed to disclose potential grounds of inadmissibility under the Act.

In order to determine that the eTA applicant is not inadmissible and meets the requirements of the Act, an electronic system would perform an examination that includes a risk assessment and a verification of the information provided in the application against immigration and enforcement databases.  CIC expects that the majority of applications will be approved by the electronic system within minutes of applying.

Any application that is not automatically approved by the electronic system will be referred to an immigration officer for further examination.  If an examination by an immigration officer is required, they would have the ability to either approve or deny an eTA application after making a determination regarding the foreign national’s admissibility or compliance with the Act.

Once approved, an eTA would be valid for a period of up to five years.  However, officers would have the ability to suspend or cancel the eTA, if the foreign national becomes inadmissible to Canada at a later time.

The proposed regulatory amendments would also impose a small cost recovery fee for eTA applications.

Unanswered Questions

The Notice of Intent did not provide a detailed explanation of how CIC would actually implement the eTA program.  As a result, several questions remain unanswered, including the following:

• It is unclear whether eTA applicants would be given an opportunity to explain their situation if the electronic system cannot automatically approve their request and it is referred to an immigration officer.  Would the immigration officer contact the applicant and offer him or her an opportunity to establish admissibility before rendering a final decision?
• If an eTA application is denied, would it constitute a refusal of admission or a refusal of a visa?  If so, would an applicant be required to disclose this denial during a subsequent application or inspection?  Would the applicant be able reapply for an eTA at a later date?
• What rights of appeal would be available to an applicant who has been denied an eTA?
• If a visa-exempt foreign national is denied an eTA but is still potentially eligible to enter Canada, perhaps with a temporary resident permit (“TRP”), would he or she be permitted or required to apply at a Canadian embassy or consulate?  If so, would this not result in significantly higher backlogs at consular posts?
• Would information collected in connection with the eTA application be shared with the United States?  If so, what types of information would be shared?

Hopefully, these outstanding questions will be answered once the proposed regulatory amendments are published.

Introduction

On November 9, 2013, Citizenship and Immigration Minister Chris Alexander announced significant changes to the Canadian Experience Class (“CEC”).  Citizenship and Immigration Canada (“CIC”) will now impose a total annual cap on the number of new CEC applications that it accepts and introduce limits on the number of applications that may be accepted in certain occupations.  In addition, CIC will change the timing of when language ability is assessed.

Total Annual Cap

For the period commencing on November 9, 2013, and ending on October 31, 2014, CIC will accept a maximum of 12,000 new CEC applications.  However, it still intends to admit approximately 15,000 individuals (whose cases are currently being processed) as permanent residents under the CEC during 2014.

Sub-Caps for Certain Occupations

As of November 9, 2013, CIC will impose sub-caps of 200 applications each for National Occupational Classification (“NOC”) Level Skill Level B (usually requiring college education or apprenticeship training) occupations.  NOC Skill Level 0 (management-level) and Skill Level A (usually requiring university education) occupations will not be subject to occupational sub-caps, but they will be subject to the total annual cap of 12,000 applications.

Eliminated Occupations

As of November 9, 2013, the following six occupations will no longer be eligible under the CEC:

a)      Cooks (NOC code 6322);

b)      Food service supervisors (NOC 6311);

c)       Administrative officers (NOC 1221);

d)      Administrative assistants (NOC 1241);

e)      Accounting technicians and bookkeepers (NOC 1311); and

f)       Retail sales supervisors (NOC 6211).

CIC claims that it already has a large inventory of applications in these occupations and will continue processing them to a final decision.

“Up Front” Assessment of Language Ability

CIC will maintain the same language criteria for CEC applicants but, as of November 9, 2013, it will now assess language ability during its initial review of the application. The current language requirements are Canadian Language Benchmark (“CLB”) 7 for NOC Skill Level 0 and Skill Level A occupations, and CLB 5 for NOC Skill Level B occupations.  Applicants who do not have the required language proficiency will have their applications returned to them along with the processing fee.

On November 14, 2013, Canada’s Citizenship and Immigration Minister Chris Alexander announced that, effective immediately, Czech nationals will no longer require a temporary resident visa to visit Canada.  Czech nationals can now stay in Canada for up to six months visa-free, which is consistent with all other visa exempt nationals.  This reverses Canada’s previous decision to impose visa requirements on Czech nationals, which came into effect on July 14, 2009.

At that time, Citizenship and Immigration Canada (“CIC”) justified its decision based on the fact that nearly 3,000 refugee claims had been filed by Czech nationals since the visa requirement was lifted in October 2007.  In contract, there were less than five such claims in 2006 when the visa requirement was still in place.  At the time that the visa requirement was reinstated in 2009, the Czech Republic was the second top source country for refugee claims.

CIC has stated that a recent visa policy review of the Czech Republic has revealed that it now meets the criteria for a visa exemption.  Visa policy reviews are based on several criteria, including a country’s immigration issues (such as violation rates and asylum claims), the integrity of a country’s travel documents, safety and security issues, border management, human rights, and bilateral relations.

CIC further justified its decision to lift the visa requirement by referring to recent changes in Canada’s refugee system.  In particular, claimants from the Czech Republic will be processed more quickly as it is a designated country of origin, and those whose claims are rejected will be removed from Canada within a few months.

As previously reported, on March 30, 2013, Citizenship and Immigration Canada (“CIC”) published Ministerial Instructions that established the Start-Up Visa Program (“SUVP”).[1] When initially established, the SUVP included a Venture Capital stream and an Angel Investor stream.  However, on October 26, 2013, CIC published new Ministerial Instructions (the “New Instructions”), which expanded the SUVP to include business incubators.[2] It also began accepting applications under this new stream on October 26, 2013.

Under the Business Incubator stream, CIC will designate eligible business incubator programs in consultation with the Canadian Association of Business Incubation.  At the present time, the following entities are eligible business incubators:

• Communitech;
• GrowLab;
• Innovacorp;
• Innovate Calgary; and
• Toronto Business Development Centre.

Under the existing SUVP, designated angel investor groups must confirm that they are investing at least $75,000.00 in the applicant’s qualifying business.  Similarly, designated venture capital funds must confirm that they are investing at least $200,000.00 in the applicant’s qualifying business.  However, a business incubator must only confirm that it is accepting the applicant’s qualifying business into its business incubator program.  Otherwise, the requirements of the Business Incubator stream are similar to those that apply to the Angel Investor and Venture Capital streams.

The New Instructions also designated the following additional entities as eligible venture capital funds, as of October 26 2013:

• Canadian Accelerator Fund Ltd.;
• Lumira Capital;
• MaRS Cleantech Fund LP;
• Real Ventures; and
• Rogers Venture Partners.

As the SUVP is a pilot program established under Section 14.1 of the Immigration and Refugee Protection Act (the “Act”), no more than 2,750 applications may be processed per year.  Section 14.1 also limits the duration of the pilot program to five years.

As the SUVP initially began accepting applications on April 1, 2013, it will sunset on March 31, 2018.  However, if the pilot program proves successful, the Canadian Government may amend the Act to establish a permanent SUVP before this date.

_______________________________________________________

[1] http://gazette.gc.ca/rp-pr/p1/2013/2013-03-30/html/notice-avis-eng.html.

[2] http://www.gazette.gc.ca/rp-pr/p1/2013/2013-10-26/html/notice-avis-eng.html.

An updated article on the Canadian experience class is now available at: http://www.americanlaw.com/canadianexperienceclass.html.

Background

As previously discussed, on April 29, 2013, the Minister of Human Resources and Skills Development (“HRSDC”) and the Minister of Citizenship, Immigration and Multiculturalism announced that they would be introducing numerous changes to the Temporary Foreign Worker Program (“TFWP”). Employment and Social Development Canada (“ESDC”), formerly known as HRSDC, has now announced changes to the Labour Market Opinion (“LMO”) application process, which are effective as of July 31, 2013. Each of these changes is described below.

LMO Application Fee

Effective July 31, 2013, employers who submit LMO applications on behalf of Temporary Foreign Workers (“TFWs”) will be required to pay a processing fee of $275.00CAD for each position requested; prior to this date, no fee applied to the filing of an LMO application. However, this LMO processing fee will not apply to positions under the Seasonal Agricultural Worker Program (“SAWP”), the Agriculture Stream, or on-farm primary agricultural positions listed under National Occupational Classification (“NOC”) Codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611.

Employers must now complete the LMO application and the processing fee payment form, and submit both items along with the required processing fee payment. The total payment must reflect the number of TFW positions requested on the LMO application.  The processing fee payment (in Canadian dollars) can be made by:

• Certified cheque (payable to the Receiver General for Canada);
• Money order (postal or bank)
• Visa;
• MasterCard; or
• American Express.

Employers and third-party representatives may not attempt to recover the LMO processing fees from the TFWs who are the beneficiaries of the LMO application.

ESDC must receive the entire processing fee along with the required documents before it will assess the employer’s LMO application. LMO applications received prior to July 31, 2013 will not be subject to the new processing fee. However, applications received with a postmark dated July 31, 2013 (or later) without the processing fee will not be assessed.

There will be no refund in the event of a negative LMO or if the application is withdrawn or cancelled since the fee covers the process to assess an application and not the outcome. Refunds will only be available if a fee was collected in error (i.e. an incorrect fee amount was processed).

Language Restrictions

Effective July 31, 2013, amendments to the Immigration and Refugee Protection Regulations (SOR/2002-227) come into force. As a result of these amendments, English and French are now the only languages that can be identified as a job requirement, both in LMO requests and in advertisements by employers applying to hire TFWs, unless employers can demonstrate that another language is essential for the job. However, the language restriction does not apply to positions under the SAWP, the Agriculture Stream, or on-farm primary agricultural positions listed under NOC Codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611.

Advertising requirements are the primary mechanism used to ensure that Canadians are aware of employment opportunities and the language restriction will help ensure that Canadians are given every opportunity to apply for available jobs. The onus will be on employers to demonstrate that a language other than French or English is an essential requirement of the job.

Employers advertising a job for a position that legitimately requires a language other than English or French must clearly demonstrate, in writing, that the language requested is consistent with the regular activities of the job (i.e. a translation company hiring a translator to work in a language other than English or French, or a tour company catering to foreign tourists only in a non-official language).

ESDC staff will assess the employer’s rationale for requesting a language other than English or French in relation to the occupation and information included in the LMO application. It will issue a negative LMO if the rationale does not demonstrate that the requested non-official language is an essential requirement of the job.

New Advertising Requirements

As of July 31, 2013, ESDC has increased the minimum recruitment requirements that employers will need to follow when submitting an LMO application. However, the new advertising requirements will not apply to:

• The Live-in Caregiver Program;
• Positions related to on-farm primary agriculture (specifically under NOC Codes 8251, 8252, 8253, 8254, 8256, 8431, 8432 and 8611);
• The SAWP; or
• The Agricultural Stream.

Employers must advertise available positions in Canada for at least four weeks before applying for an LMO; this requirement applies to all advertising methods. Previously, employers were only required to advertise for two weeks during the three months prior to the filing of the LMO application. In addition, for NOC 0 and A occupations, employers were permitted to conduct similar recruitment activities consistent with the practice within the occupation (with no minimum period specified), instead of advertising the position in the national Job Bank; the two week advertising period only applied if the employer chose to advertise in the national Job Bank.

Higher-Skilled Occupations

Under the new requirements, employers seeking to hire a TFW in a higher-skilled occupation (NOC 0, A, or B) must advertise:

• On the national Job Bank or its provincial/territorial counterpart in British Columbia, Saskatchewan, the Northwest Territories, Quebec or Newfoundland and Labrador:
  1. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.
  2. The advertisement must remain posted to actively seek qualified Canadians and permanent residents until the date that an LMO is issued.
• Using two or more additional methods of recruitment consistent with the normal practice for the occupation:
  1. As a minimum, employers must choose one method that is national in scope, since people in higher-skilled positions are often mobile and willing to re-locate for work; and
  2. Employers can choose one or more recruitment methods among these: (i) print media (national or provincial/territorial newspapers, national journals, magazines with national coverage, specialized journals, professional associations magazines, newsletters, etc.); (ii) general employment websites (i.e. canadastop100.com, vault.com, workopolis.com, monster.ca, etc.); and (iii) specialized websites dedicated to specific occupation profiles (i.e. accounting, marketing, biotechnology, education, engineering, etc.).
  3. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.

Lower-Skilled Occupations

Under the new requirements, employers seeking to hire a TFW in a lower-skilled occupation (NOC C or D) must advertise:

• On the national Job Bank or its provincial/territorial counterpart in British Columbia, Saskatchewan, the Northwest Territories, Quebec or Newfoundland and Labrador:
  1. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.
  2. The advertisement must remain posted to actively seek qualified Canadians and permanent residents until the date that an LMO is issued.
• Using two or more additional methods of recruitment consistent with the normal practice for the occupation:
  1. Employers can choose 1 or more recruitment methods among these: (i) print media (local newspapers, job boards, youth magazines etc.); and (ii) general employment websites (jobboom.com, workopolis.com, monster.ca, etc.).
  2. The advertisement must be posted for a minimum of four weeks starting from the first day the ad appears and is accessible to the general public.
• Targeting underrepresented groups:
  1. Employers can: (i) try to recruit workers from local or provincial/territorial employment centres, service centres for Aboriginal youth, new immigrants and people with disabilities; (ii) offer bursaries to attract students or youth, pursue online recruitment strategies, or undertake ongoing advertising and interviews in order to maintain a pre-screened applicant pool.

Content of Advertisement

The advertisement must include the following information:

• Company operating name;
• Business address;
• Title of position;
• Job duties (for each position, if advertising more than one vacancy);
• Terms of employment (e.g. project based, permanent position);
• Wage (refer to Wages, Working Conditions and Occupations tab to determine the established rate for the specific occupation and geographic area);
• Benefits package being offered (if applicable);
• Location of work (local area, city or town);
• Contact information (telephone number, cell phone number, email address, fax number, or mailing address); and
• Skills requirements:
  1. Education; and
  2. Work experience

Third-party representatives or recruiters can be the main contact for any job advertisements posted on behalf of the employer. However, the ad must be listed under the employer’s Canada Revenue Agency Business Number.

Proof of Advertisement

Employers will be required to demonstrate that they meet the advertising requirements by providing proof of advertisement and the results of their efforts to recruit Canadian citizens and permanent residents (i.e. a copy of advertisement and information to support where, when and for how long the position was advertised). Records of the employers’ efforts should be kept for a minimum of 6 years. ESDC may request these documents in connection with future assessments.

New LMO Application Form

As of July 31, 2013, the new LMO application form includes additional questions that must be answered by the employer. These questions were added to help ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs.

On July 2, 2013, the Citizenship, Immigration and Multiculturalism Minister (the “Minister”) announced that 10-year ePassports, also known as biometric passports, will now be available to Canadian citizens.  The Minister also announced that Citizenship and Immigration Canada (“CIC”) would immediately assume primary responsibility for Passport Canada, which had previously been part of the Department of Foreign Affairs and International Trade.

The new ePassport contains new security features designed to make the passport tamper-proof.  These features include:

• An electronic chip (“e-chip”) embedded in the back cover, which will store the same personal information that appears on Page 2 of the Passport (except for the signature), the photo and a digital security feature that proves the passport was issued by the Government of Canada; and
• New images in the inside pages that provide additional security.

Over 100 countries, including the United States, the United Kingdom and France, already issue ePassports to their citizens.

According to CIC, when information is first stored on the e-chip in the passport, the e-chip is electronically locked so that information cannot be modified.  CIC also states that the information on the e-chip cannot be read unless the ePassport is held within 10 centimetres of an ePassport reader, open to page 2, and the machine-readable zone has first been read.  Canadians who would like to see the information stored on their e-chip to make sure it is accurate may do so by visiting one of Passport Canada’s 34 regional offices.

At border crossings equipped with ePassport readers, the ePassport is placed into a scanner that reads the machine-readable zone, which allows the e-chip to be read also. The machine also checks other security features, such as the country-specific signature. Canada Border Services Agency authorities that do not yet have ePassport readers in place will continue to examine travelers’ passports by examining existing security features such as the holographic images.

For an adult (age 16 or older), a 5-year ePassport for will cost $120.00 and a 10-year ePassport will cost $160.00. For a child (up to 15 years old), the cost will be $57.00.

Background

In early April 2013, it was reported that forty-five Royal Bank of Canada (“RBC”) employees in Toronto would be losing their jobs because the company had outsourced several technology services to iGate, a California-based firm that specializes in sending jobs offshore.  RBC faced a severe public backlash over the incident.  Questions were also raised regarding how iGate had brought its own employees into Canada under the Temporary Foreign Worker Program (“TFWP”), so that they could be trained at RBC offices.

As a result of the RBC incident, the Government of Canada announced several changes to the TFWP.  On April 29, 2013, the Minister of Human Resources and Skills Development (“HRSDC”) and the Minister of Citizenship, Immigration and Multiculturalism, announced that they were introducing changes, which would:

• Immediately require employers to pay temporary foreign workers at the prevailing wage by removing the existing wage flexibility;
• Immediately suspend the Accelerated Labour Market Opinion (“A-LMO”) process;
• Increase the Government of Canada’s authority to suspend and revoke work permits and Labour Market Opinions (“LMOs”) if the program is being misused;
• Add questions to employer LMO applications to ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs;
• Ensure employers who rely on temporary foreign workers have a firm plan in place to transition to a Canadian workforce over time through the LMO process;
• Introduce employer fees for the processing of LMOs and increase the fees for work permits so that the taxpayers are no longer subsidizing the costs; and
• Identify English and French as the only languages that can be used as a job requirement.

Some of these changes were implemented administratively.  Other changes will require regulatory amendments before they can be implemented.

Recently Implemented Administrative Changes

As previously reported, HRSDC announced last year that it would permit employers to pay the temporary foreign worker (“TFW”) up to 15% less than the average wage for higher skilled occupations (NOC Skill Levels 0, A, or B) or 5% less than the average wage for lower skilled occupations (NOC Skill Levels C or D), if they could document that their Canadian workers were also receiving the same wage.  This flexibility was due to the fact that the average wage figures established by Statistics Canada were not always appropriate.   For example, they did not consider a particular worker’s level of experience in the field or the presence of a very large employer in the region that paid above average wages to its workers.  In any event, HRSDC has now removed this wage flexibility.  Ironically, this may require certain employers to pay TFWs more than their Canadian counterparts.

Also, as previously reported, HRSDC announced last year that it was implementing an A-LMO initiative that would allow certain employers, who had an established track record of compliance, to obtain expedited processing of their LMOs.  Although the A-LMO program was considered a success, HRSDC has now suspended it.  Although the announcement on April 29 suggested that the suspension of the A-LMO program was temporary, it is unknown when the program will resume.

In addition, HRSDC is now requiring employers who have submitted an LMO application to complete a Canadian Labour Market Impact Questionnaire, which asks questions about whether the entry of the TFW will lead to job losses due to outsourcing or offshoring, or otherwise facilitate outsourcing or offshoring.  Presumably, answering “yes” to one or more of these questions will result in a denial.

Finally, HRSDC already appears to be prohibiting the use of foreign languages as a job requirement.  However, knowledge of English and/or French can still be used as job requirement, when appropriate.

Proposed Regulatory Amendments

As mentioned above, some of the changes previously announced by the Government of Canada will require regulatory amendments before they can be implemented.  In furtherance of this objective, Citizenship and Immigration Canada (“CIC”) published proposed regulatory amendments to the Immigration and Refugee Protection Regulations (“IRPR”), SOR/2002-227, in the Canada Gazette on June 8, 2013.  These proposed amendments are described in greater detail below.

Conditions Applicable to All Work Permits

Under the proposed regulations, all employers will be required to demonstrate that they are complying with (or that they have complied with) certain conditions during the period of the TFWs work permit:

• The employer (other than the employer of a live-in caregiver) must be actively engaged in the business in respect of which the offer of employment was made;
• The employer must comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the TFW works;
• The employer must provide a TFW with employment in the same occupation as that set out in that TFW’s offer of employment and with wages and working conditions that are substantially the same as, but not less favourable than, those contained in the offer;
• The employer must make reasonable efforts to provide TFWs with a work place that is free of abuse, specifically:
  • Physical abuse, including assault and forcible confinement,
  • Sexual abuse, including sexual contact without consent,
  • Psychological abuse, including threats and intimidation, and
  • Financial abuse, including fraud and extortion;
  • The employer must not be convicted of an offence of human trafficking under the Immigration and Refugee Protection Act, unless there has been a final determination of an acquittal or a pardon/record suspension has been granted; and
  • The employer must not be convicted, or discharged, under the Criminal Code of any of the following offences, unless there has been a final determination of an acquittal or a pardon/record suspension has been granted:
    • Trafficking in persons (or related offence);
    • An offence of a sexual nature (or an attempt) against an employee;
    • An offence causing death or bodily harm to an employee;
    • Uttering threats to cause death or bodily harm against an employee; or
    • An offence involving the use of violence (or an attempt) against an employee.

In addition, the employer must not be convicted outside Canada of an offence that would constitute one of the above offences if committed in Canada, unless there has been a final determination of an acquittal.

These conditions will typically be enforced by CIC.

Conditions Applicable to LMO-Based Work Permits

Where an LMO is required, employers who are issued a positive LMO will be required to comply with the several conditions during the period of foreign national’s employment (or, where applicable, during any other period that has been agreed to by the employer and HRSDC).  As appropriate, employers will be required to demonstrate that they are complying with, or have complied with, one or more of the following conditions:

• Employers must ensure that the employment of the foreign national will result in direct job creation or job retention for Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
• Employers must ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
• Employers must make reasonable efforts to hire or train, or hire or train, Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit; and
• In the case of an employer who employs a TFW as a live-in caregiver, the employer must:
  • Ensure that the TFW resides in a private household and provides, without supervision, the care for which the TFW was employed;
  • Provide the TFW with adequate furnished and private accommodations in the household; and
  • Have sufficient financial resources to pay the TFW the wages offered.

The exact conditions with which a particular employer will be required to comply depend on their specific LMO and will be established by HRSDC prior to the issuance of the LMO.  These conditions will typically be enforced by HRSDC.

Improved Compliance Verification

The current regulations provide that returning employers seeking to hire TFWs, including live-in caregivers, are required to demonstrate compliance before they are granted a positive LMO or the employer is granted a work permit.  CIC and HRSDC may examine previous offers of employment within the two years preceding the date of receipt of a new LMO or work permit application and the employer may be required to produce evidence of compliance (i.e. that they provided each TFW with substantially the same wages and working conditions as those set out in their offer of employment).  However, CIC and HRSDC can only verify compliance at the time that a new LMO or work permit application is submitted by the employer.  As a result, unless a subsequent LMO or work permit is filed, it is impossible to verify whether the employer has complied with the terms of a previous job offer.

Under the proposed amendments, employers will now be required to demonstrate that, within the six years preceding the date of receipt of a new LMO or work permit application, that they provided each TFW with substantially the same wages and working conditions as, but not less favorable than, those set out in their previous offer of employment.  Employers will also be required to retain documents that demonstrate their compliance with any conditions that were imposed on them, for a period of six years after the date that the TFWs work permit expires.

In addition, the proposed amendments will allow a compliance verification inspection in the following cases:

• A CIC officer or the Minister of HRSDC has a reason to suspect that the employer is not complying with or has not complied with any conditions imposed;
• The employer has not complied with conditions in the past; or
• The employer is randomly chosen for verification compliance.

In other words, compliance verification will no longer be triggered solely by the filing of a subsequent LMO or work permit application by the employer.  It can be initiated at any time during the compliance verification period.

New Verification Compliance Inspection Powers

Under the proposed amendments, for the purposes of verifying compliance, CIC or HRSDC will have the authority to require an employer to report at any specified time and place in order to answer questions and provide documents that relate to compliance with any condition imposed on it.  HRSDC may also exercise its authority to verify the conditions that would typically be enforced by CIC, at the request of a CIC officer.

More significantly, CIC and HRSDC will have the authority to enter and inspect any premises or place where the TFW works, without the consent of the employer.  Upon entering the premises or place where the TFW works, CIC or HRSDC may:

• Ask the employer and any person employed by the employer any relevant questions;
• Require from the employer, for examination, any documents found in the premises or place;
• Use copying equipment in the premises or place, or require the employer to make copies of documents, and remove the copies for examination or, if it is not possible to make copies in the premises or place, remove the documents in order to make copies;
• Take photographs and make video or audio recordings;
• Examine anything in the premises or place;
• Require the employer to use any computer or other electronic device in the premises or place in order to allow the officer to examine any relevant document contained in or available to it; and
• Be accompanied or assisted in the premises or place by any person required by CIC or HRSDC.

The above powers may be exercised by CIC or HRSDC without the consent of the employer and without a warrant.  There is only one exception described in the proposed amendments – if the TFW is employed at a dwelling house (for example, in the case of a live-in caregiver), CIC and HRSDC may only enter without the occupant’s consent if they are in possession of a warrant issued pursuant to the regulations.

Information Sharing Between CIC and HRSDC

The proposed regulatory amendments include an information-sharing provision that will allow the disclosure of information from CIC to HRSDC, in relation to an application for a work permit or an employer’s compliance with the conditions imposed upon them.  They also include a provision that will allow the disclosure of information from CIC to the competent authorities of the provinces and territories in relation to the above matters.

Miscellaneous Amendments

The proposed regulatory amendments will also implement the following miscellaneous changes:

• Subsection 203(1.1) of the IRPR, which describes circumstance in which an employer’s failure to comply with the conditions imposed is justified, will be amended to include “force majeure” as an additional justification ground.
• The issuance of an LMO or work permit will be prohibited where the foreign national intends to work for an employer who, on a regular basis, offers stripping, erotic dance, escort services, or erotic massages.  The Ministerial Instructions issued in 2012 already prohibited the processing of work permit applications filed by TFWs who would be working in a sector where there were “reasonable grounds to suspect a risk of sexual exploitation of some workers.”
• All temporary residents will be prohibited from entering into an employment agreement or extending the term of an employment agreement with an employer who, on a regular basis, offers stripping, erotic dance, escort services, or erotic massages.
• The prevailing wage rate will now be determined by HRSDC, by taking into account the rates that are made publicly available by the Minister of HRSDC and the wages paid to Canadian citizens and permanent residents by the employer making the offer, if that information is provided by the employer on request of that Minister.
• Currently, work permits may not be issued when the specific work that the foreign national intends to perform is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute, except where all or almost all of the workers involved in the labour dispute are not Canadian citizens or permanent residents and the hiring of workers to replace the workers involved in the labour dispute is not prohibited by the Canadian law applicable in the province where the workers involved in the labour dispute are employed.  To ensure consistent assessments of this factor, the above exception will be eliminated.

Effective Date of Regulatory Amendments

The above regulatory amendments will come into force on the day that they are registered.

A new article on Canada’s New Federal Skilled Worker Program has now been published in my Canadian Immigration Handbook.