Commentary: Canadian gov’t tightens temporary foreign worker regulations

Whether your company currently employs temporary foreign workers (TFW), or whether your company may do so in the future, you need to be aware of the new Temporary Foreign Worker Program regulations that will come into force on April 1, 2011.

Further to amendments to the immigration and refugee protection regulations, made pursuant to the Immigration and Refugee Protection Act, for the first time in Canada, employers of TFWs will be held responsible for not only their own non-compliance thereto, but also the non-compliance of their TFW employees as well.

The penalties for non-compliance will be harsh: businesses found to be in non-compliance may be barred from hiring any more TFWs for two full years, and may also have their business names published on the Citizenship and Immigration Canada (CIC) website as a further warning to future TFW applicants. Even worse, at present, there is no appeal mechanism for challenging and removing a business from the list of banned businesses once a non-compliance determination has been made.

The new regulations are the culmination of efforts by the CIC to confront the problem of exploitation of TFWs in Canada, implement a regime of stricter employer accountability in order to encourage greater adherence to the program’s regulations, and ensure the temporary nature of the program.

On April 1, TFW work permits will be issued through a process of triple-redundancy determination via a mechanism consisting of CIC, Human Resources and Skills Development Canada and Canada Border Services Agency.

Applications will be determined against three essential criteria: whether the job offer is genuine; whether the employer has been compliant with the TFW program conditions and regulations for two years prior to the date of application or, if non-compliant, was the non-compliance justified; and whether the applicant has exceeded the new four-year cumulative cap  on TFW status.

As part of the TFW visa application process, the “genuineness” of the job offer will be determined against several criteria, and it is expected that such TFW applications will be closely scrutinized by immigration officials. Consequently, businesses seeking to hire TFWs will have to tailor their employment offer letters in such a way as to address the requirements of the new regulations, and continue to monitor compliance.

Regarding the two-year past compliance requirement, immigration officials will not only be scrutinizing past TFW applications, but may, in fact, requisition employer business records (such as T4 slips, employee records, etc.) in order to determine whether the employer has met the compliance requirements. Any discovered past (two-year) non-compliance may not only fail your current TFW application, but also bar you from any future TFW applications for a period of two years!

Pursuant to the new regulations, TFWs will be allowed to legally work and live in Canada for a cumulative period of four years, with allowance for tolling the clock. TFWs will be required to leave Canada at the end of the four-year cap period and may not re-apply for TFW status until a further four-year period has elapsed (with some exceptions).  Finally, non-compliance of TFWs with the four-year cap on status may be deemed as non-compliance by their employer, and thus invoking the harsh penalties referenced above.

Consequently, businesses seeking to hire TFWs will have to endeavour to monitor their own compliance to the new regulations and the compliance thereto of their TFW employees. Businesses should also ensure that their record-keeping is current and both easily accessible and discernible to Canadian immigration officials for the purposes of their past compliance review.

Therefore, it is strongly recommended that businesses intending to hire TFWs consult with immigration lawyers current on the new regulations to ensure that your organization is ready to comply with the new regulations that will soon come into force, and maintain compliance thereafter.

– The author is an associate in the International Legal Services Group of Toronto-based Cambridge LLP (www.cambridgellp.com). His practice focuses on international law (both private and public), immigration law, defamation law, and civil litigation.