Changes to the Temporary Foreign Worker Program, including hard caps on the length of time temporary foreign workers can stay in Canada and new sanctions against employers who fail to comply with their commitments to temporary foreign workers, are slated to take effect on April 1, 2011. Tech companies would be well advised to prepare for the changes now, starting with conducting an immigration audit of their existing workforce in Canada.

Two-Year Ban for Non-Compliance

Starting in April 2011, the government will assess employers who are seeking to hire temporary foreign workers against past compliance with program requirements. In cases where employers have not met their previous commitments to workers with respect to wages, working conditions and occupation, the employers may be denied access to the temporary foreign worker program for two years. Offending employers’ names would also be published on the Citizenship and Immigration Canada website.

If a company gets placed on the "bad employer" list, then there is an automatic two-year ban from bringing any worker into Canada. So even if this company had a critical need to bring in a highly specialized worker or needed a new president and CEO to transfer into Canada, it would be denied that opportunity. This reinforces the need for 100 per cent compliance in managing foreign workers, including those who are only coming in for short periods of time.

Four-Year Limit on Employment

Another change will impose a four-year cumulative limit on many temporary foreign workers’ employment in Canada. After a four-year work term, the workers will have to wait four years before becoming eligible to work again temporarily in Canada.

Many temporary foreign workers will fall into this four-year hard cap. Unless the company in Canada makes arrangements in advance, they will be unable to retain the worker after the four years have elapsed. Consequently, strategically planning the management of the flow of temporary foreign workers into Canada will become even more important for employers – you will need to implement procedures to make allowances for retention and succession planning so that important employees and their critical skills are not lost.

McCarthy Tétrault Notes

To prepare for the changes, consider conducting an immigration audit of your existing workforce in Canada. This can be accomplished by running a query of all of your employees’ social insurance numbers. All employees have an obligation upon being hired to provide a social insurance number within a few days of hire. Any social insurance numbers that begin with 900 and have an expiry date indicate that the person is NOT a Canadian Citizen or Permanent Resident of Canada, and in most circumstances requires a work permit. The work permit must either specify that they are entitled to work for your company, or they must possesses a work permit that is employer non-specific.

If, after running the query and conducting the audit, you find anyone who does not have a work permit but does possess a 900 series SIN or has a work permit that specifies another company as their employer, we recommend that you contact us as soon as possible to assess your options. There may also be situations where you have workers coming in who are not on your Canadian payroll, but are providing assistance to your clients or your company directly in Canada. Despite the fact that they do not have social insurance numbers, they too must have a lawful work permit or qualify for a specific work-permit-exempt category, so verifying that they have proper documentation from Citizenship and Immigration Canada is essential.

Conducting the audit also allows your company to deal with retention issues with respect to the second change. It will give you a full understanding of how many temporary foreign workers you have in Canada and how many can be retained on work permits beyond four years.

Given these upcoming changes and the existing severe liability provisions in Canadian Immigration law against employers illegally employing foreign nationals, it is in every employer's best interests to conduct the immigration audit. This will assure employers that you are in compliance with the law, and can begin to implement strategic plans for managing your temporary foreign workers.