The Canadian government has recently announced changes to the Immigration and Refugee Protection Regulations ("Regulations") that will affect the Foreign Workers’ Program. These changes will come into force on April 1st, 2011.

To the government, these changes have become necessary in order to protect foreign workers from potential abuse, to implement stricter accountability for employers, and to underline that the foreign worker program is temporary by nature.

Foreign workers represent an important labour market for recruitment, since their numbers have soared in the last decade, climbing from 107,217 workers in 1999 to 193,061 in 2008.

As only Canadian citizens and permanent residents are allowed to work freely in Canada, foreign workers, unless exempted, must obtain a work permit before taking up a position in Canada.

In general, and unless the particular worker benefits from an exemption, this work permit is issued only once the Canadian employer obtains a positive "Labour Market Opinion" (LMO) from Service Canada and, in Québec, from the Ministère des Communautés Culturelles et de l’Immigration (MICC). An application for such an LMO is an official procedure. It is destined to ensure the protection of those opportunities offered to Canadian citizens and permanent residents, by making it mandatory for the prospective Canadian employer to demonstrate that it tried to recruit a Canadian worker before hiring a foreign one. As part of this LMO application, and in particular since 2009, unless exempted, the Canadian employer must meet minimum advertisement requirements. Otherwise, the application will be denied. Requirements differ depending, notably, on the type of position and the province of destination.

How has the Canadian government described the changes to the Regulations? Here are three highlights.

  1. A more rigorous assessment of the genuineness of the job offer presented to a foreign worker

Under the Immigration Regulations, a job offer presented to a foreign worker must be genuine. The government has now introduced factors to determine whether the offer presented is indeed genuine for both LMO and LMO-exempt work permits. In general, the officer examining the work permit application will have to be satisfied that the job offer is real and that both the applicant worker and the prospective employer are bona fide. The new Regulations will outline the factors to take into account, i.e., the need for the employer to be actively engaged in the business in respect to which the offer is made, whether the offer is consistent with the reasonable needs of the employer, the fact that the employer is able to fulfill the terms of the offer, and the employer’s past compliance.

  1. A two-year prohibition from hiring temporary foreign workers for employers who fail to meet their commitments to workers with respect to wages, working conditions and occupation

In addition, the Canadian government will now examine the employer’s compliance with previous offers of employment made to foreign workers. This examination will cover the two years prior to the reception of an application. Thus, the officer will examine whether the employer has respected its commitments to a foreign worker regarding wages, working conditions and occupation offered to the foreign worker during that period.

If the employer has failed to comply, it will be prohibited from using foreign worker programs for two years and will be placed on a list of ineligible employers for this period.

The employer will be able to justify failure to respect its commitments to avoid sanction in certain circumstances. For instance, failure would be justified if it results from: a change in the federal or provincial law, a change to the provisions of a collective agreement, the implementation of measures in response to a dramatic change in the economic conditions affecting the business of the employer, an error in interpretation made in good faith, or an unintentional accounting or administrative error.

  1. A four-year limit on the length of time a temporary foreign worker may work in Canada before returning home

The Regulations will impose a four-year limit on the presence of a foreign worker, unless he/she is otherwise permitted to be present in Canada. As such, the worker not benefitting from an exemption will be limited to a total cumulate four-year period and will need to wait four years before being allowed to receive a work permit again.

The Canadian government‘s underlying message is that the foreign worker’s program is a temporary program, and workers wishing to establish themselves in Canada should pursue the proper path to secure the permanent resident status rather than remain a temporary resident.

The new Regulations will continue to allow for certain categories of workers to remain in Canada and obtain work permits for more than four years.

That is, workers whose work will create or maintain significant benefits or opportunities for Canadians, and workers performing work pursuant to an international agreement between Canada and one or more countries, will be allowed to obtain work permits for total periods greater than four years.

Tips for Employers

In light of these upcoming changes to the Regulations, we advise all Canadian employers to set up protocols to document each case. This will help to ensure that they respect their commitments to foreign workers and that they can prove it. Employers should keep clear records of all of their contacts, agreements and applications, to be able to confirm to the Canadian government that all conditions regarding wages, work conditions and occupation of any and all foreign workers have been respected.