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.

As of March 4, 2011, United States Citizenship and Immigration Services (“USCIS”) receipted 17,242 petitions toward the 33,000 H-2B cap amount for the first half of the fiscal year. This count includes 12,607 approved and 4,635 pending petitions.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. There is a statutory numerical limit, or “cap,” on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year.

Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap. Additionally petitions for the following types of workers are exempt the H-2B cap:

1. Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
2. From November 28, 2009 until December 31, 2014, workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

The United States Department of State (“DOS”) has published its monthly visa bulletin for April 2011. The April 2011 visa bulletin is available online here.

The April 2011 visa bulletin states that continued heavy applicant demand for numbers in the Family-Based First Preference (“F1″) category has required the retrogression of the Worldwide, China-mainland born, and India cut-off dates for the month of April. Further retrogressions cannot be ruled out should demand continue at the current levels for some categories and countries. The F1 category includes unmarried sons and daughters (i.e. 21 years of age and older) of United States citizens.

The DOS visa bulletin summarizes the availability of immigrant numbers each month. Consular officers report documentarily-qualified applicants for numerically limited visas. Similarly, United States Citizenship and Immigration Services (“USCIS”) reports applicants for adjustment of status.

Allocations are then made, to the extent possible under the numerical limitations, for the demand received in the chronological order of the reported priority dates. If the demand cannot be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive is deemed oversubscribed.

The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number.

The most-powerful earthquake in Japan’s recorded history struck off the country’s northeast coast on March 11, 2011, leaving hundreds of people dead, injured or missing. In response, United States Citizenship and Immigration Services (“USCIS”) has announced that it is offering relief to Japanese citizens and other foreign nationals from the Pacific who may now be stranded in the United States due to the recent earthquakes and tsunamis in the region.

The USCIS advisory states that, if these individuals have exceeded or are about to exceed their authorized stay in the U.S. (the advisory later refers to visitor status only), they may be permitted up to an additional 30 days to depart. Visitors currently traveling under the Visa Waiver Program (“VWP”) may do one of the following:

• If at an airport, they should contact the United States Customs & Border Protection (“USCBP”) office at the airport; and
• In all others situations, they should visit their local USCIS office.

Visitors currently traveling under a nonimmigrant visa should do the following:

• They should visit their local USCIS office; and
• They should bring their passport, evidence that they are stranded (such as an itinerary for the cancelled flight), and their I-94 departure record.

The USCIS notice also incorporates by reference its regular notice regarding additional immigration relief in special situations. This notice is reproduced below:

Sometimes natural catastrophes and other extreme situations can occur that are beyond your control. These events can affect your USCIS application, petition or immigration status. We cannot anticipate these events, but will do our best to help you get the benefits for which you qualify. When requested, the following options may be available to people affected by natural catastrophes and other extreme situations:

If you have lost your USCIS-issued documents through no fault of your own, you may show your need for replacing the documents.

USCIS and USCBP previously announced similar relief for travelers who were stranded in the United States due to the Icelandic volcano eruption last year. However, that USCIS/USCBP announcement simply informed non-VWP applicants about the normal procedure for extending their stay within the United States, which usually involves filing an extension application at one of the USCIS service centers. This time, USCIS specifically states that nonimmigrants may visit their local USCIS office to seek relief.