Proposed Changes to Regulations Regarding Temporary Foreign Workers

The Minister responsible for Citizenship, Immigration, and Multiculturalism recently announced proposed changes to the Immigration and Refugee Protection Regulations which will affect temporary foreign workers.

 

The proposed changes include the following: 

• setting out assessment criteria for the genuineness of the job offer:
• whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
• whether the offer is consistent with the reasonable needs of the employer;
• whether the terms of the offer are terms that the employer is reasonably able to fulfil; and
• the past compliance of the employer, or any person who recruited the foreign worker for the employer, with the federal or provincial laws that regulate employment and recruitment;
• limiting the cumulative time a temporary foreign worker may work in Canada to four years, after which the worker will not be authorized to work in Canada for a period of six years (unless the foreign national intends to perform work pursuant to an international agreement or work that would create significant benefits);
• prohibiting employers from hiring temporary foreign workers if the employers have, in the two-year period preceding the offer, provided wages or working conditions or employed a foreign national in an occupation significantly different from the wages or working condition or occupation offered to the foreign national; and
• establishing a publicized list of employers who are not eligible to hire temporary foreign workers for a two-year period.

These proposed changes are meant to protect temporary foreign workers from exploitation, promote employer compliance with the terms of job offers, and to emphasize that the Temporary Foreign Worker Program is intended to fill short-term labour shortages only.

Managing Permanent Resident Status: The Family Connection Option

Last month I wrote about, the Employment Option, how employment outside of Canada can help a permanent resident of Canada satisfy residency obligation. The response has been tremendous and the one question that was common to almost all of the inquiries I received from the article was, “Can’t I maintain my residency status if I am married to a Canadian, even if we live outside of Canada?” The answer in short is yes, but it isn’t quite that easy.

Before I get into what I call the Family Connection Option, a quick refresher on the residency obligation rules is in order. Section 28 of the Immigration and Refugee Protection Act, requires a permanent resident of Canada to satisfy with the “residency obligation” on an ongoing basis by complying with one or more residency obligation “options” for 730 days in every five year period. The starting point is that if you physically reside in Canada for 730 days in every five year period, that is, your feet are on Canadian soil (the “Residence Option”), you will satisfy the obligation and maintain status as a permanent resident. If you can’t satisfy the Residence Option and want to maintain PR status, you will have to rely on either the Employment Option, the Family Connection Option or humanitarian and compassionate grounds.

Next to the Residence Option, the Family Connection Option is by far the most reliable mechanism by which a permanent resident of Canada can satisfy the residency obligation. It is worth clarifying at this point that each PR who is the member of a family must satisfy the residency obligation independently. There are no “family applications” for PR card renewals nor does an entire family lose their PR status only because a single member of that family loses their status.

The Family Connection Option provides that a PR can count every day spent outside of Canada (feet not on Canadian soil), accompanying a Canadian citizen who is their spouse (common-law or married) towards the 730 day obligation. In the case of children, if a PR child can count every day outside of Canada accompanying a Canadian citizen who is their parent in the same manner. By “accompanying”, I mean residing with under the same roof outside of Canada and by “child” I mean a person who has never been married or in a common-law relationship and is under 22 years of age.

The Family Connection Option also extends to children and spouses of permanent residents who accompany their parent or spouse outside of Canada, so long as that parent or spouse complies with the Employment Option. Basically, if a PR lives and works outside of Canada satisfying the Employment Option, that PR’s spouse and children can count the days spent residing with that permanent resident outside of Canada towards their own residency obligations.

As with all dealings with Citizenship and Immigration Canada, it is incumbent on a PR to prove their case, that is, to satisfy CIC that they have met the residency obligation, whether it is by the Family Connection Option or any other option. I strongly encourage PRs to keep a folder with detailed records of their compliance with the residency obligation. Although there is no definitive list of required documents to include, I generally advise people to keep marriage licenses, birth certificates, school records, boarding passes, copies of old passports, home rental agreements, credit card and bank statements, proof of cohabitation, lots of photographs of time spent with family outside of Canada and proof of a spouse or parent’s employment outside of Canada if that is the means by which a person hopes to satisfy the residency obligation.

Compliance with the residency obligation on the whole is carefully scrutinized by CIC. As such, PRs are strongly encouraged to seek qualified advice prior to planting their feet in non-Canadian soil for any extended period of time.

Managing Your Canadian Resident Status: The Employment Option

In what I have always seen as an ironic twist, the first question often asked by many of my newly immigrated clients is, “how do I go back to my home country but keep my Canadian PR status?”

Section 28 of the Immigration and Refugee Protection Act, requires a permanent resident of Canada to comply with the “residency obligation” on an ongoing basis, so long as that person wishes to retain their permanent resident status. The basic rule is that the residency obligation can be satisfied as long as a permanent resident complies with at least one (or a combination of two or more) residency obligation “option” for 730 days in every five year period. The options range from physical presence in Canada to accompanying a Canadian citizen spouse outside of Canada and humanitarian and compassionate grounds as a last resort.

The option getting the most attention these days is the employment option. If a permanent resident accepts is employed on a full-time basis by a Canadian business and that employment requires the permanent resident to spend time outside of Canada’s borders, those days spent employed under such conditions will count towards the 730 day residency requirement. Sound simple? It isn’t.

The first challenge is determining whether or not the Canadian employer meets the definition of “Canadian business.” A Canadian business is defined three different ways. First, a business is a Canadian business if it incorporated in Canada and has an ongoing operation in Canada. If it isn’t incorporated in Canada, the business can be some other form of enterprise (a partnership, for example), that has an ongoing operation in Canada, is capable of generating revenue in anticipation of earning a profit, and where the majority of the controlling parties of the enterprise are either Canadian citizens, permanent residents or a business that meets the definition of “Canadian business”. The third alternative is an organization created by the laws of Canada or a province. This third group is designed to cover off public sector employees.

Organizations or companies which are set up for the primary purpose of allowing a permanent resident to comply with the residency obligation are excluded from the definition of “Canadian business”.

The second challenge is determining whether the employment satisfies the definition of “employed on a full-time basis by a Canadian business.” To satisfy this requirement a permanent resident must be an employee of a Canadian business or under contract to provide services to a Canadian business for at least 37.5 hours per week (to be safe as full time is not clearly defined in the regulations) where either the permanent resident’s position is outside of Canada working for either the Canadian business directly, an enterprise affiliated with the Canadian business or a client of the Canadian business.

If a permanent resident is certain that his or her employment outside of Canada will satisfy these definitions, that person’s spouse and/or dependent children who are permanent residents and will also get credit towards the 730 day residency obligation for every day that they are accompany the permanent resident outside of Canada.

The third challenge is proving compliance. I strongly encourage permanent residents to keep meticulous records of their employment outside of Canada as when applying for a new permanent resident card, a permanent resident may be called upon for proof of employment. Although there is no definitive list of required documents, I generally advise people to keep pay stubs, bank records, employment contracts, documents evidencing the assignment of the permanent resident to the position outside of Canada, time sheets, tax records, correspondence with the Canadian business, e-mails, passport stamps, airline tickets (boarding passes) and any other documentation unique to their employment which could assist in the analysis.

This area of residency obligation requirement is closely scrutinized by Citizenship and Immigration Canada. As such, one is strongly encouraged to seek qualified advice prior to accepting employment overseas after becoming a permanent resident of Canada.

Rosenberg Named Immigration Law Expert by National Magazine

The Canadian Immigrant Magazine has named Ryan Rosenberg an Immigration Law Expert and has invited him to join their panel of experts, fielding questions from the magazine's readership on a monthly basis. Visit Ryan's expert blog at: www.canadianimmigrant.ca/asktheexperts/columnist/3471

Implied Status

The summer months are an interesting time at Citizenship and Immigration Canada’s (“CIC”) case processing centre in Vegreville, Alberta. As you may know, CIC Vegreville is responsible for processing applications to extend temporary status in Canada. All work permit, study permit and visitor record extension applications are processed by this office.

An already busy office gets even busier in the summer because of a number of factors. Many foreign students in Canada extend their study permits in the summer months between semesters, while at the same time, many visitors wish to extend their status so as to enjoy what this beautiful country has to offer when it isn’t covered in six feed of snow and ice. At the same time, CIC staff, just like the rest of us, tries to take some time off over the summer. The consequence of this perfect storm is longer processing times for extension applications.

According to CIC, as of 22 June 2009, visitor extensions are taking 111 days to process, work permits are taking 108 days and study permits are taking 60 days. Notwithstanding these lengthy service times, CIC encourages applicants to file extension applications a mere 30 days prior to the expiration of their current immigration document. The natural question to follow is, what rights does an applicant have while their extension application is in process? The answer is found in current immigration regulations and a recent policy update.

Regulations 183(5), 186(u) and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) each offer solutions for visitors, workers and student respectively. The common theme between these three regulations is what is known as “implied status”. Basically if a worker, student or visitor files an application to extend their status in Canada, they may remain in Canada on the terms of the original status until a decision is made on their application to extend. That is, a worker can continue to work, a student can continue to study and a visitor can continue to visit until they get an answer on their extension application, so long as they remain in Canada.

Note that two items are absolutely imperative. First, it is a deal-breaker if the applicant does not file their extension application before their current immigration document expires. This means that the application to extend must be post-marked at least the day before a given permit expires. While I know that the CIC website says you have to file at least 30 days prior to expiration, they will accept applications postmarked as late as the day prior to expiration. The better practice is to extend as early as possible.

Second, an applicant will lose the benefits of implied status if they leave the Canada while their application is in process. Despite this requirement, if an applicant does leave the country, immigration officers at the ports of entry do have some discretionary tools to either allow an applicant to re-enter Canada as a temporary resident, pending a decision on the renewal of their application to study or work in Canada, provided they have a temporary resident visa, are visa exempt or have a multiple-entry visa. However, even if granted re-entry, an applicant may not resume work or study in Canada until their application for renewal has been granted. For those not able to resume work, they must satisfy the officer that they have sufficient funds to support themselves until their new permit is issued. Alternatively, an immigration officer at the port of entry may allow an applicant to apply for a new work or study permit at the port of entry provided they have a right to do so under law.

New LMO Standards - Have they gone to far?

With lay-offs and unemployment on the rise, businesses closing down and more and more Canadians struggling to get by, immigration policies regarding foreign workers wanting to enter the labour market have become more restrictive.

Over the recent years of unprecedented economic growth, immigration policies embodied a “get a job, get a visa” mentality. As of January 2009 those policies have shifted, taking cover from the economic storm overhead and offering shelter to Canadian job seekers.

In most cases, companies in Canada wishing to hire a foreign worker must apply to Service Canada for a Labour Market Opinion (LMO), which would ordinarily confirm whether or not the hiring of a foreign worker to fill a position would cause a positive or neutral effect on the Canadian labour market. If hiring a foreign worker would, in Service Canada’s opinion, cause a negative effect on the Canadian labour market, the application must be refused.

LMO applications incorporate a number of components designed to ensure, among other priorities, that the Canadian employer had first scoured the Canadian labour market for eligible candidates and that the wage offered to a foreign worker was reflective of local prevailing wage for the position.

When jobs were plentiful and Canadian companies were starving for qualified labour and skills, Service Canada relaxed their standards as they assessed LMO applications and even went so far as to compile lists of occupations in high demand where the minimum LMO applications assessment standards were all but dropped. These lists were known as “regional occupations under pressure” lists and were an employer’s ticket to successful overseas recruiting. Recruiting efforts were minimal and LMO approvals from Service Canada were fast and free flowing.

Now the lists are gone and have been replaced by a set of stringent new rules.

Under the new LMO application guidelines, employers must try even harder to find local candidates before recruiting overseas, no matter what the position or how scarce local talent may be.

As a general rule, the lower the skill level required to fill a position the greater onus there will be on an employer to recruit locally. For example, employers recruiting “low-skilled” workers must, at a minimum, advertise for 14 days on the national Job Bank, conform to industry practices (whatever they may be) and a invest in a combination of advertisements in journals, national or local newspapers, community bulletins and stores, churches, employment centres, and other recognized job websites. Moreover, these efforts must be ongoing and ought to target ‘disadvantaged groups’ that face barriers to employment.

All higher skilled positions now require a minimum 14 days on the national Job Bank and depending on the position, an employer may satisfy the recruitment requirements by simply conforming to recruitment activities consistent within the given occupation.

At any level, recruitment advertisements must include the name of the business, the business address and the wages being offered.

While Service Canada’s requirements may not, on their face, appear too onerous, they can be costly to an employer already short on qualified workers. They can also expose a company’s competitive position by forcing a company to publicly disclose wages and they could disrupt business by publicizing recruitment efforts within the view of existing employees. Most concerning, under the new policies, Service Canada reserves the right, at their discretion, to require alternative or additional advertising from an employer after efforts which seem to conform to their own stated rules have been met.

Some argue that these new rules amount to overbearing protectionism and they are out of touch with the economic realities facing Canadian business. Others argue that a Canadians first and foremost policy should remain a priority. Either way the message is clear, our labour market is not what it used to be and Canadian employers have to adapt.

Skilled Worker Applications - TOASTED

For years, I have called the Federal Skilled Worker application the white bread of all immigration applications. It serves a purpose, is commonly used and offers no real benefit compared to multi-grain and high fibre applications like provincial nominees or sponsored spouses. Late in ’08 the Minister of Citizenship, Immigration and Multiculturalism issued instructions to improve the class which are as effective as toasting white bread to increase its nutritional value.

Under the Minister’s instructions, all skilled worker applications filed after February 27, 2008 will be assessed using specific guidelines, designed to prioritize applicants likely to find a job in Canada and to weed out those who are not. The estimated 800,000 Applications filed before February 27, 2008 are not captured by the new policies and will remain languishing at visa posts until processed.

As instructed, three different filters will be used to determine the likelihood of an applicant to find work and settle in Canada. The first is an occupation list issued by the Minister, the second is the existence of arranged employment and the third is an examination of an applicant’s status in Canada.

Obtaining 67 points on a skilled worker assessment is no longer good enough; an applicant must now also pass through one of these three filters. If an applicant fails to satisfy the new criteria, their application will be returned, unprocessed and with a full refund.

The occupation list is a rigid compilation of what have been deemed by the Minister to be 38 high-demand occupations, ranging from financial managers to natural resource, construction, food service and medical professionals, among others. If an applicant has qualifying work experience in one of theses 38 occupations, their application will be welcomed and processed.

The real problem with this approach is that unless the Minister has a crystal ball, there is no way of knowing that designated occupations will remain in high-demand. We all know that past performance of our economy in no way guarantees future performance and one only need to look at the recent massive job loss reports in sectors where occupations were deemed by the Minister as “high-demand” to reach this conclusion. If the Minister has a crystal ball, it clearly hasn’t been working very well. While the Minster can amend or adjust the occupation list at any time, one has to wonder how effective that approach will be; I liken it to catching up with the past instead of preparing for the future.

The second and third criteria make a lot more sense. If an applicant has an offer of arranged employment, which is a job offer waiting for him or her upon becoming a permanent resident, than that application will be processed and prioritized. There is no sense in denying a Canadian employer an identified employee who will contribute to the success of a business. As for the third filter, if an applicant is already in Canada and settled in as a worker or student, they qualify and are probably more likely to settle and integrate with fewer complications and for the betterment of our country.

The question of the need for the Minister’s instructions has been debated for months and the controversy will continue as the policy is put into practice. At the end of the day, the tinkering with the skilled worker class only creates more uncertainty and confirms what I have been writing about for the past couple of years – if you are serious about immigration and are thinking skilled worker, think again.

Medical Examinations: Pay to Pass – A Two Tiered System

In late September of this year, Citizenship and Immigration Canada (CIC) published a new Operational Bulletin, OP063, implementing the decisions in the Supreme Court of Canada which opened the door to two-tiered medical examinations for immigrants.

While many Canadians shutter at the notion of two-tiered healthcare in Canada, that is, where a person could use either publicly funded or privately funded healthcare, many new immigrants are embracing the concept in the context of an immigration application. While I am not prepared to argue the pros or cons of two-tiered healthcare, I am eager to point out the new opportunities for would-be Canadian immigrants under the new policy directives.

Generally speaking, an applicant for immigration will be found inadmissible to Canada for the purposes of permanent residence if they fail their medical exam. Certain applicants, such as spouses or dependent children who are being sponsored by a Canadian citizen or permanent resident, refugees and other protected persons are exempted from the minimum health requirements, so long as they do not have a medical condition which would pose a threat to public health or safety. Other applicants, such as sponsored parents and grandparents, skilled workers, entrepreneurs, provincial nominees and the rest are all have to pass their medical examinations in full.

An applicant will fail a medical exam if he or she has a condition which might reasonably be expected to cause excessive demand on health or social services. Excessive demand, as you would imagine, is all about money. Generally, CIC sets a dollar amount each year which forms the threshold for excessive demand. Typically, if an immigration applicant has a condition which would have a treatment and/or care cost more than the set amount over a five year period (in most cases), that applicant will be found inadmissible. In 2007, the excessive demand threshold was set at $4,806 per year ($24,030 over a five year period); a new figure is scheduled to be released on December 1, 2008.

Before the Supreme Court of Canada decision in Hillewitz and de Jong, and the subsequent implementation of OP063, the excessive demand threshold applied equally to all immigrant applicants who were not exempted, even those who said that they had no intention of receiving public money for social services after arriving in Canada.

Under the new guidelines, immigration officers must consider all evidence presented by an applicant, before making a decision of inadmissibility due to excessive demand. Evidence regarding both ability and intent to mitigate the cost of social services in Canada must be considered, if presented. All applicants are entitled to an assessment of the probable demand their disability or impairment might place on social services. An applicant may provide evidence of ability and intent to reduce the cost impact on Canadian social services, and this would have to be considered in making a decision. These principles apply to all categories of applications, including sponsorship of parents.

Basically, if an applicant can assemble and justify a financial plan to cover the cost of social services which would be required by that applicant or his accompanying family once in Canada, an immigration officer may make a finding that an applicant is not inadmissible, despite the existence of a specific condition requiring care that would ordinarily exceed the excessive demand threshold. Such a financial plan would usually take the form of a statutory declaration of ability and intent to cover the costs of social services and will be supplemented by a detailed credible plan, financial documents and commitment letters from those involved in providing the care for the applicant, as needed.

To be clear, OP063 does not allow an applicant to pay for health services, rather only social services; it does not open the door to private healthcare. It does however create two-tiered medical admissibility testing – one for those who can afford and another tier for those who cannot.