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2014-12-14

Louise Elliott

The federal government has granted an exemption to Microsoft Canada that will allow the company to bring in an unspecified number of temporary foreign workers to British Columbia as trainees without first looking for Canadians to fill the jobs.

A notice posted on the Citizenship and Immigration Canada website says foreign workers will receive specialized training in a new human resources development centre in the province. The tech giant will not have to perform a labour market impact assessment (LMIA) — a rigorous process that would include a search for Canadians who could fill the positions.

The exemption was granted under a provincial-federal agreement that gives a pass to companies that gain provincial approval.

The Canadian government argues the arrangement is the result of a significant investment by Microsoft that will create jobs for Canadians as well at a new 400-person training centre.

Nevertheless, some legal observers say the decision appears at odds with the government's promise to crack down on abuse in the system in order to protect Canadian jobs.

"There is certainly no justification that I can see that would support granting an exemption to a large number of foreign workers to come into Canada to take away jobs that could easily filled by Canadians," said Toronto immigration lawyer Lorne Waldman.

"On the one hand, the government is telling us they are protecting Canadian jobs; on the other hand they're signing agreements with big corporations in which they're allowing them to bring in foreign workers."

Two-year work permits

The government notice says the new training and development centre will focus on "software and engineering." The centre will add 400 jobs that will "include paid internships for Canadian students and long-term employees," as well as "bring international employees into 18-month rotational training positions."

Temporary Foreign Worker Program exemption for Microsoft
This notice of an exemption for Microsoft under the Temporary Foreign Worker Program was posted on Citizenship and Immigration Canada's website. (CIC)

The notice also says foreign workers will be given 24-month work permits to allow them to stay in Canada "until they are transitioned by Microsoft into a new position elsewhere."

A source familiar with the LMIA process, who did not wish to be named, says he's flabbergasted the government would allow the exemption, since it gives Microsoft a significant competitive advantage

The source, who works in immigration law, noted that many other tech companies also offer training but are not being given such an exemption. He said the trainees who come through the centre will not just be learning, they will be "developing product" for the company.

"It's fantastic that Microsoft wants to offer this [training centre], but a lot of companies offer unique opportunities [like this]," he said. "These are jobs in Canada that require work permits, and they could find Canadian graduates from computer science programs to fill them."

In an email, Citizenship and Immigration Canada spokesperson Sonia Lesage said the trainees are not going to be entering the Canadian workforce, and therefore won't be competing with Canadian workers.

"They are employees of a major international corporation who are being sent for training at the Centre of Excellence before moving on to positions at other Microsoft facilities," she wrote.

In a later email, Lesage said the international trainees will enter Canada under the International Mobility Program, while other foreign nationals at the facility "would be subject to all regular rules of the Temporary Foreign Worker Program or International Mobility Program (IMP), depending on their specific situation."

Waldman called this "doublespeak," because the International Mobility Program includes all programs that are exempted from the LMIA process. He said the online notice clearly states the exemption is being made for the Temporary Foreign Worker Program at the request of the province.

And, he added, the exemption sets a precedent.

"There is no other exemption that is specific to a corporation, and it does not fall within any of the other categories where exemptions are normally given," he said. "The effect is to create a new category: the Microsoft Exemption. And, if Microsoft can get one then why not IBM?"

U.S. immigration 'a factor'

Microsoft Canada did not immediately respond to questions about the deal.

But in an interview earlier this year with Bloomberg Businessweek, Karen Jones, Microsoft’s deputy general counsel, said the deal will allow Microsoft to bypass stricter U.S. rules on visas for foreign workers.

"The U.S. laws clearly did not meet our needs. We have to look to other places," she told the wire service. She went on to say Microsoft didn’t choose to expand in Vancouver "purely for immigration purposes, but immigration is a factor."

The source said that means the company will take advantage of rules governing intra-company transfers, which require employees to work for at least one year at a company subsidiary before being transferred to the U.S. He says the result will be a net disadvantage for Canada.

"So we're not getting any long-term benefit here — we're just a turnstile."

But the government argues the training centre will create Canadian jobs where there are none, saying it's "an important and beneficial development" for the country.

"Hosting the Microsoft Centre of Excellence in Canada will also provide training opportunities for Canadians and will create long-term jobs that would not exist otherwise," Lesage wrote.

The department did not indicate how many temporary foreign workers Microsoft intends to bring in each year, but said the number would increase "over time as the facility becomes fully established."

Foreign worker changes

Last June, when Employment and Social Development Minister Jason Kenney tabled reforms to the temporary foreign worker program, he emphasized provinces would not get a free pass when it came to the new rules, despite the longstanding side agreements or annexes that allowed this exemption.

Employment Minister Jason Kenney
Employment Minister Jason Kenney has been under pressure from employers since clamping down on the Temporary Foreign Worker Program last June. (Sean Kilpatrick/The Canadian Press)

At the time, his department wrote, "Annex agreements with provinces and territories are being changed so that employers that used to bring temporary foreign workers to Canada through these agreements will now be subject to an LMIA."

Kenney announced the overhaul after stories about alleged abuses surfaced in the media.

Since then, Kenney has been under pressure from small business groups, the restaurant and hospitality sector and provincial governments to ease up and once again allow more temporary workers in.

Waldman argues that the fact new Microsoft employees will be trained here means the company can't argue there's a skills shortage that requires them to bring in foreign workers.

"Why can't we have Canadian trainees hired by Microsoft? Why does Microsoft have to bring foreign trainees in to work in Canada without having to prove there aren't Canadians available for the positions?"

• http://www.cbc.ca/news/politics/foreign-workers-microsoft-gets-green-light-from-ottawa-for-foreign-trainees-1.2870289

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