On June 8, 2013, Citizenship and Immigration Canada published proposed regulatory changes which impose new conditions on employers of temporary foreign workers and significantly expand the inspection authority of Human Resources and Skills Development Canada (“HRSDC”) and Citizenship and Immigration Canada (“CIC”) officials for the purpose of verifying compliance with those conditions.
Among other things, the proposed changes would allow HRSDC and CIC officials to search the premises of any business employing foreign workers, in order to investigate whether the information provided by the employer at the time of an LMO request or work permit application was accurate, and whether the employer complies with the conditions imposed on them during the period of employment of temporary foreign workers. In carrying out these on-site inspections, officials would have the authority to ask the employer and any person employed by the employer any relevant questions and to require from the employer, for examination, any documents found in the premises. Except where the business premises is a private dwelling, searches could be conducted without a warrant.
Under the proposed regulatory changes, inspections could be triggered if:
- There is reason to suspect that the employer is not complying or has not complied with any conditions imposed;
- The employer has not complied with the conditions in the past; or
- The employer is chosen for random verification of compliance with the conditions
CIC and HRSDC would have the authority to conduct an inspection at any time during and up to six years after the employment of a Temporary Foreign Worker. This represents a significant extension of the current, two year compliance verification period.
The proposed regulatory changes would also impose the following conditions on employers of temporary foreign workers on both LMO-based and LMO-exempt work permits:
- The employer must be actively engaged in the business in respect of which the offer of employment was made;
- The employer must comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the temporary foreign worker works;
- The employer must provide a temporary foreign worker with employment in the same occupation as that set out in his or her offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those in the offer;
- The employer must make reasonable efforts to provide temporary foreign workers with a work place that is free of abuse, including physical, sexual, psychological and financial abuse;
- The employer must not be convicted of an offence of human trafficking under the IRPA; and
- The employer must not be convicted, or discharged, under the Criminal Code of any of a number of designated offences involving human trafficking or assault or abuse of an employee, or convicted outside Canada of an offence that would constitute one of the designated offences, if committed in Canada.
In addition, where an LMO is issued, depending on the specific LMO and the conditions agreed upon between the employer and HRSDC prior to LMO issuance, employers could be subject to, and required to show compliance with, the following conditions:
Employers must ensure that the employment of the foreign national will result in direct job creation or job retention for Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
- Employers must ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
- Employers must make reasonable efforts to hire or train, or hire or train, Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit.
Consultations with respect to the proposed regulatory changes are currently ongoing. We will continue to monitor the development of the proposed changes and provide updates as additional information becomes available.
For more information on this or other Canadian or US immigration matters, please contact PricewaterhouseCoopers Immigration Law LLP – Immigration Lawyers at 1-800-993-9971 or email@example.com.
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