2015-07-15
Colin Singer
Mondaq.com
Changes to Canada's Temporary Foreign Worker program have resulted in a substantial drop in the number of Labour Market Impact Assessments (LMIAs) issued to foreign workers. Figures show that just 40,000 LMIAs were issued in 2014, compared to more than 200,000 in 2012.
The latest announcement by Canada's Minister of Employment and Social Development may result in fewer employers hiring foreign workers. Effective December 1, 2015, employers who violate the rules of the Temporary Foreign Worker Program and the International Mobility Program (which includes intra-company transfers and free-trade agreement work permit categories), could face harsh penalties. Under the Immigration and Refugee Protection Regulations, the government now has a new arsenal of enforcement tools. Known as Administrative Monetary Penalties, AMPs are a regulatory compliance mechanism that allow for monetary penalties for incidences of non-compliance. Canadian employers who are found to be in violation of program terms and conditions could be subject to financial penalties ranging from $500 to $100,000 per violation, and up to maximum of $1 million in a one-year period. Violations will be weighted using a point system and penalties will be levied under a number of factors. In addition, the existing two-year ban from the programs will be replaced with bans of various lengths – including one, two, five and 10 years. Employers could face a permanent ban for the most serious violations. Employers who are banned will be published on the government web site.
Of the approximately 52,000 LMIA applications filed in 2014, 11,200 applications were refused. Many believe the primary cause of the decline is the introduction of non-refundable $1,000 CAD application fees. However AMP's and other factors will continue to affect Canada's declining Temporary Foreign Worker numbers.
Out of the total 40,000 LMIAs approved in 2014, about half were allocated to businesses in B.C. and Alberta, and the rest (about 15,000) to Ontario companies. A large number went to workers in the food service sector, farming workers, and temporary personnel in the entertainment industry.
Employers seeking to hire foreign workers are required to apply for an LMIA and demonstrate there is a need for the foreign worker to fill the job and that no Canadian worker is available. Employers are also required to include a transition plan to hire Canadians.
Critics believe the numbers portray the government's success in cracking down on the (alleged) abuse of the TFW program in the face of increasing unemployment in Canada following the recession of 2009.
Administrative Monetary Penalties (AMP's) are highly controversial. With planned inspections of 25% of Canadian employers hiring foreign workers in 2015, the introduction of AMP's into the immigration landscape will lead to increased litigation. In 2014, the government received broad powers to conduct random on-site inspections, compliance reviews (often triggered by subsequent LMIA applications) and compel production of payroll records.
Where a preliminary finding of non-compliance is made, an employer has 30 days to respond. Until a final determination is made, pending LMIA applications will be suspended.
A final determination is made after a review of all factors. Where a negative finding is made (that does not result in a ban), an employer will be prevented from accessing the program until penalties are paid or agreements are reached.
With the latest enforcement tools, employers in the know will carefully consider the merits and risks of accessing the temporary foreign worker program. Those with minimal alternatives must do so with proper planning.
The content of this article reflects the personal insight of Attorney Colin Singer and needs no disclaimer
National relevance
Anglais