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CANADA: Changes to Canada's temporary foreign worker program

On April 1, 2011, much-anticipated changes to Canada's Temporary Foreign Worker Program took effect. The main objectives are to introduce safeguards to better protect temporary foreign workers (TFWs) and improvements to the program to ensure that it continues to be fair to employers, and to maintain its focus on alleviating temporary labor shortages.

Genuineness of the Job Offer

Under these new rules, foreign nationals seeking to work in Canada will be better protected from exploitation through a more rigorous assessment of the genuineness of the job offer.

Four factors will be considered as part of the assessment of genuineness:

  • the employer must be actively engaged in the business;
  • the job offer is consistent with the needs of the employer;
  • the employer is able to fulfill the terms of the job offer; and
  • the employer has complied with the laws regulating employment in the province where the worker is to be employed.

In instances where a Labour Market Opinion (LMO) is required, this assessment will be completed by Human Resources and Skills Development Canada before the LMO is to be issued, whereas for jobs exempted from LMOs, the assessment will be completed by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency, upon request for a work permit.

Two-Year Ban for Noncompliance

Officers will have the authority to undertake a "substantially the same" (STS) assessment of whether an employer has, in the last two years, provided wages, working conditions, and an occupation as promised in a past job offer.

The legislation imposes a two-year prohibition from using the TFWP for employers found to have failed an STS assessment. Unless reasonable justification is provided or corrective action is taken, employers may face:

  • the denial of work permit applications for any foreign national offered employment by that employer;
  • becoming ineligible to hire TFWs for 2 years; and
  • having their name displayed on CIC's public website.

Maximum Period of Work in Canada

Many foreign workers will be subject to a four-year "cumulative duration" limit on the length of time they may work in Canada.

However, this regulation is not retroactive in that the commencement date for this four-year period is April 1, 2011, regardless of how long the foreign worker has already been in Canada. Therefore, the earliest date that a foreign worker could reach the four-year cumulative duration is April 1, 2015.

After a TFW has reached his or her four-year cumulative duration limit, the TFW will not be granted another work permit for another four years.

The four-year limit will not apply to certain categories of TFWs, including TFWs in managerial or professional occupations, TFWs who have applied for permanent residence and have progressed to a certain specified stage in the processing, TFWs employed in Canada under an international agreement (such as the North American Free Trade Agreement), and TFWs who are exempt from the LMO process.

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