hr managers guidebook

HR IMMIGRATION HANDBOOK PREPARED BY HOLTHE TILLEMAN LLP

We have prepared & revised the HR Immigration Handbook to assist in your efforts to maintain employer compliance while navigating the

complex world of temporary foreign workers. We have set out key tracking information and a list of commonly requested documents in the

event of a government investigation or Employer Compliance Review (ECR). Maintaining thorough records will make the entire

immigration investigation and review process go much more smoothly than if this documentation is not readily available.

TABLE OF CONTENTS

Contents

Introduction ______________________________________________________________________________________________ 1

The Immigration Landscape of 2014 & the Critical Role of HR Managers ___________________________ 2

Labour Market Impact Assessment (LMIA) Basics ____________________________________________________ 6

LMIA Advertisement Checklist ________________________________________________________________________ 16

Tips for Successful LMIAs ______________________________________________________________________________ 17

Work Permit Applications _____________________________________________________________________________ 18

Keeping Track of Your Foreign Workers & Remaining Compliant __________________________________ 27

Preparing for Government Investigations ____________________________________________________________ 29

Employer Compliance Reviews (ECR) ________________________________________________________________ 31

Site Visits ________________________________________________________________________________________________ 36

Online Resources _______________________________________________________________________________________ 37

Company Information – Holthe Tilleman LLP ________________________________________________________ 38

http://www.ht-llp.com/

Introduction

In a country so diverse, full of opportunity and economic strength, it will come as no surprise that

despite the recent chill on the Temporary Foreign Worker Program across Canada, the demand for

skilled foreign workers continues to be high as Alberta employers struggle to fill labour shortages

in our Province. However, the process involved in sourcing and retaining essential foreign labour

is becoming significantly more difficult. With an ever increasing emphasis on employer

compliance through the use of compliance reviews and unscheduled job site visits, employers are

frequently finding themselves offside immigration regulations, despite their good intentions. As a

result, employers rely heavily on their Human Resource Managers to maintain compliance by

keeping track of their foreign workers and preparing for government audits while ensuring all

necessary documentation is ready when the call comes from Employment and Social Development

Canada (ESDC).

This handbook was designed by the lawyers at Holthe Tilleman LLP as a guide for Human

Resource Managers to use when hiring, retaining, and most importantly, maintaining

compliance within the ever volatile Temporary Foreign Worker Program (TFWP).

HANDBOOK UPDATES

For handbook updates, please visit our website regularly at www.ht-llp.com or contact us directly.

Updated October 2014

The Introduction of LMIAs & the Critical Role of HR Managers

Over the last four years we have seen drastic changes to Canadian immigration law and the foreign

worker program. The new rules implemented on April 1, 2011 specifically placed the continued

responsibility of foreign workers on the shoulders of employers. With a greater emphasis on

employer compliance, the new rules instituted a “substantially the same” test, whereby

immigration officials were given power to assess whether an employer was compliant in providing

wages and working conditions that were substantially the same as the terms and conditions

agreed to in the original job offer.

Further, on Friday, June 20, 2014, the government announced significant changes describing the

announcement as an “overhauling of the temporary foreign worker program”1. Several changes

were implemented, many of which became effective immediately. In order to provide greater

clarity, the TFWP was divided into two distinct categories with the previous Labour Market

Opinion (LMIA) process being rebranded as the new Labour Market Impact Assessment (LMIA). In

addition, the International Mobility Program (IMP) was been created to better manage and track

work permits issued under the many work permit categories that are exempt from the need to

first obtain an LMIA. Both the LMIA and IMP programs continue to undergo significant revamping

by ESDC and Citizenship and Immigration Canada (CIC).

Today, employers seeking to hire foreign workers may now be required to demonstrate

compliance before they are even granted a positive LMIA. Compliance with the TFWP may also be

assessed during the work permit process and when the foreign worker applies for permanent

residency. Random government audits are also occurring more frequently with the possibility of

unscheduled site visits coming in the future. Employers should be prepared to provide sufficient

documentation to prove employer compliance at all stages of the foreign worker process.

What is most concerning is that employers often do not fully understand their obligations when

hiring foreign workers. Many employers assume the onus is on the foreign worker to remain

compliant with work permit conditions. However, changes to corporate structure, bonus

payments, wage raises/decreases, relocation or even promotions may suggest that an employer is

non-compliant if corresponding changes are not made to the underlying LMIA and work permit.

For example, foreign workers employed in one location cannot work in another work location

without the employer applying for and receiving a new confirmed LMIA and the worker receiving

1 See ESDC Website: http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/index.shtml

http://www.esdc.gc.ca/eng/jobs/foreign_workers/reform/index.shtml

a new work permit from Citizenship Immigration Canada (CIC). A wage increase of more than 2%

could also trigger a finding of non-compliance unless the raise was contemplated within the

original LMIA/LMIA. Further, companies with multiple subsidiaries need to exercise caution to

ensure that compensation is flowing from the employer of record stated on the LMIA confirmation

and not another entity.

On December 31st, 2013, new Ministerial Instructions set out additional employer obligations and

conditions and specifically mandated an in-depth and lengthy employer record tracking system as

a component within the employer compliance process. As required by law, employers must now

retain any document that relates to compliance, including but not limited to those conditions

confirmed within the LMIA letter and annexes. This information must be retained and producible

for a period of six years, beginning on the first day the foreign worker commences employment.

Further, during this period the employer must demonstrate that any information they provided in

the context of the LMIA was indeed accurate.

Another significant development is the fact that ESDC now has the authority to conduct on-site

inspections without a warrant to verify an employer’s compliance with LMIA conditions at any

time throughout the respective six year period. Further, much greater emphasis has also been

placed on the training of Canadian citizens and permanent residents to fill positions currently held

by foreign workers. We anticipate that the establishment and presentation of detailed training

plans may become much more important within the LMIA process.

If an employer is found to have failed to meet the conditions to which no justification and

corrective action can be made, access to the temporary foreign worker program may be denied for

two years, barring the employer from hiring or retaining any foreign workers. ESDC and CIC may

publish the employer’s name, address and period of ineligibility as part of their list of ineligible

employers on a public ban list and any pending LMIA applications and previously-issued

LMIA/LMIAs may be denied or revoked. Currently, there are only a small number of employers

listed on the ESDC blacklist. However, the government has recently proposed a serious of

significant changes to the penalty mechanism with the TFWP. Monetary and other penalties have

been proposed for even the most innocuous non-compliance. Currently, employers who have been

found non-compliant by virtue of a clerical error or unintended mistake are given the opportunity

to take corrective action. However, the new proposed changes suggest a monetary penalty may

still be imposed where no finding of guilt or wilful error has been committed by the employer.2

Further, it has been proposed that employers under investigation for non-compliance may also be

placed on the ESDC blacklist while the investigation is pending. In effect, the government is

2 See Government Discussion Paper on Proposed Regulatory Changes: http://www.esdc.gc.ca/eng/jobs/foreign_workers/consultations/discussion_paper.shtml

proposing a form of public shaming on companies who have committed no offence and are

ultimately found to be fully compliant.

These sanctions are new additions to the existing penalties under the Immigration and Refugee

Protection Act, SC 2001, c 27, that state Employers who employ “a foreign national in a capacity in

which the foreign national is not authorized… to be employed,” may be fined up to $50,000 and

imprisoned for up to two years.

These consequences bring public shame and embarrassment to the penalized corporation and

may severely hinder their operations, existing contracts, and relationships. Further, without

access to the foreign worker program, employers may be severely restricted in their international

trade, recruitment and sourcing of skilled labour.

Employers must be aware that the conditions and actions under one work permit can in fact

threaten the employment of all of their foreign workers. The Ministerial Instructions issued on

December 31, 2013, set out specific public policy considerations that allow ESDC to suspend,

revoke or refuse an LMIA/LMIA application. Accordingly, if there are reasonable grounds to

suspect that the employer is not complying with the conditions in respect of a work permit or any

other work permit and the failure to do so cannot be justified, then any subsequent and pending

LMIA applications for any of the employer’s foreign workers may be in jeopardy.

Following a determination of non-compliance, employers may be issued negative LMIAs on any

pending LMIA applications and may have previously-issued LMIAs revoked. Further, any work

permits associated with revoked LMIAs could also be cancelled. Therefore, the impact of non-

compliance in one application can severely impact all foreign workers under that employer. As a

result, employers need to be aware of the specific restrictions placed on them when hiring a

foreign worker and take steps to properly document their obligations and prove compliance.

BEST PRACTICES

Best practices for employers to ensure they remain compliant include:

retaining all documents for a period of 6 years to demonstrate full compliance with the

information on the LMIA application and the terms and conditions set out in the LMIA

letter and annexes;

contacting ESDC before making any changes to conditions set out in the LMIA letter and

annexes;

cooperating fully with ESDC during compliance reviews;

working with authorized representatives. Bill C-35 restricts those eligible to provide

immigration advice and assistance. Be careful when turning LMIA and work permit

applications over to recruiters unless you know they are authorized to do so. CIC has a list

of authorized representatives; and

regularly checking ESDC and CIC websites for updates and changes to employer

obligations.

Labour Market Impact Assessment (LMIA) Basics

In most cases, employers who wish to hire a temporary foreign worker (TFW) must first apply to

ESDC for a LMIA. This opinion assesses the impact the offer of employment to a foreign worker

will have on Canadian jobs.

You can apply for a pre-approval (unnamed LMIA) which is approved in principle for a position or

several positions, or you can apply for an LMIA for a specific worker or workers (named LMIA) at

the onset.

STEP ONE: DETERMINING THE NOC CODE

When starting the process, the first step is to determine the National Occupation Classification

Code (NOC Code) for the position in which an LMIA is sought. The NOC Code can be determined

by searching for the position you seek to fill on the NOC website located at

http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/Welcome.aspx.

Please note that there are two versions: NOC 2006 and NOC 2011. For the purposes of the LMIA

process and the TFWP, ESDC relies strictly on NOC 2006. You will then need to determine the

prevailing wage for the position which will in turn assist you in classifying your LMIA application

as either High Wage or Low Wage for the purposes of the new LMIA regime. In the previous LMIA

regime the Skill Level of the position was the determining factor in the LMIA process. As a result of

the recent changes, High Wage occupations will follow the traditional High Skilled requirements

(including newly announced additional requirements) and Low Wage will follow the process for

filing a Low Skill LMIA application. Each category sets out specific conditions, wages,

advertisement requirements and application procedures.

Tip: Pay close attention to the specific requirements under each NOC. If a minimum

education level or experience is set out in the NOC, you will not be able to accept candidates

with lower credentials. ESDC may approve the LMIA, but CIC will refuse to grant the WP.

Tip: Always insert your own NOC Code and do not leave it up to ESDC. By selecting the NOC

Code, you can ensure that ESDC does not select a position that does not fit for the foreign

worker you have selected. At times, ESDC can select a position that is more senior than the

one you have selected which could result in a higher prevailing wage, and your selected

worker not meeting the minimum education requirements.

STEP TWO: DETERMINE THE PREVAILING WAGE

Once you determine the most appropriate NOC Code, you can then search for the prevailing wage

for that position by entering the NOC Code into the search field using the www.jobbank.gc.ca

government website. Employers hiring TFWs must meet or exceed the prevailing wage rate for

the position as determined by the NOC Code.

STEP THREE: DETERMINE WHETHER THE POSITION IS CLASSIFIED AS A HIGH OR LOW WAGE

As per the June 20, 2014 changes, the streams for LMIA will now be assessed as either High Wage

or Low Wage, instead of being classified as High-Skilled or Low-Skilled. (Please note that

currently all permanent resident qualification requirements will continue to follow the previous

high/low skill distinction.) The government claims that wage is a more objective and accurate

reflection of skill level and labour need in a given area. Positions where the prevailing wage is

below the provincial/territorial median wage will be considered low-wage, while those positions

where the prevailing wage is at or above the provincial/territorial median wage will be considered

high-wage.

The starting point for any Alberta Employer hiring a foreign worker will now be: Are you offering

an hourly wage that is higher or lower than $24.23/hour, our province’s median hourly wage? If

you are offering a wage that exceeds this, your application will be considered under the “high-

wage” stream, and subsequently, should you offer a wage that is lower than this, you will be placed

in the “low-wage” stream, keeping in mind, the prevailing wage rate is still applicable to any and

all applications under the LMIA, which means that you must be offering a wage that meets or

exceeds the prevailing wage rate for the specific region where you intend to employ the foreign

worker.

The wage distinction is crucial not only in the assessment process, but will also dictate the

limitations and restrictions imposed on you and the foreign worker. For example, LMIA’s will only

be granted for a maximum period of one year for low-wage applications, rather than the previous

two year duration granted to low-skilled occupations. Below is a detailed chart we prepared that

explains the new restrictions imposed based on the wage class of your LMIA application:

Tip: Review the prevailing wage for ALL LOCATIONS that the foreign worker will be

required to work in. For example: even if the foreign worker is based in Calgary, but will be

required to travel and work in Fort McMurray from time to time, you must meet the

prevailing wage rate in both regions, whichever is higher.

http://www.jobbank.gc.ca/

New Restrictions Imposed depending on Wage Class

High –Wage Low - Wage

Employers are now required to submit transition plans with their LMIA application to prove they will continue to take steps to transition away from TFWs to a Canadian work force. Employers will be expected to help Canadians obtain in-demand skills through investing in skills training, taking on more apprentices, on the job training, or helping high skilled temporary foreign workers obtain their permanent residency.

Employers with 10 or more employees applying for a new LMIA are subject to a cap of 10% on the proportion of their workforce that can consist of low-wage temporary foreign workers. This cap will be applied per worksite of an employer and is based on total hours worked at that worksite.

Employers required to undertake additional recruitment activities, including reaching out to organizations serving groups traditionally underrepresented in the workforce, ie. Aboriginal, youth, Canadians with disabilities, etc.

Employer applications will not be processed if each of the following factors are present:

1. Applying for an LMIA where the regional unemployment rate is over 6%

2. Seeking LMIA in one of the occupations; identified under the North American Industry Classification System as Accommodations & Food Service or Retail Sales; AND

3. Seeking LMIA under a NOC Skill Level D occupation

Advertise position in Canada for a minimum of four weeks applicable to all advertising methods, including the National Job Bank and at least two additional methods of recruitment, one of which must be national in scope.

Duration of Work Permit set out in LMIA is reduced from 2 years to 1 year, which means Employers need to apply every year for low-wage positions

The Government will reduce how long a TFW in the low-wage stream can work in Canada. Note, this limitation has not yet been defined or implemented by the government, but is expected to be released soon. Currently low skilled workers are capped at 4 years.

Advertise position in Canada for a minimum of four weeks applicable to all advertising methods, including the National Job Bank and at least two additional methods of recruitment, demonstrating that you have made efforts to hire Canadians from under-represented groups in the work force, such as Aboriginal, youth or Canadians with disabilities.

STEP FOUR: THE ADVERTISEMENTS

To meet the minimum advertising requirements set by ESDC, you must advertise:

1. On the national Job Bank or its provincial/territorial counterpart in British Columbia,

Saskatchewan, the Northwest Territories, Quebec or Newfoundland and Labrador

The advertisement must be posted for a minimum of 4 weeks starting from the

first day the ad appears and is accessible to the general public.

The advertisement must remain posted to actively seek qualified Canadians and

permanent residents until the date a LMIA is issued.

2. Using 2 or more additional methods of recruitment consistent with the normal practice for

the occupation (ie. Local newspapers, job boards, print media, and general employment

sites, including jobboom.com, workopolis.com, monster.ca, kijiji, jobshop, and indeed.ca

etc.). The advertisements must be posted for a minimum of 4 weeks starting from the first

day the ad appears and is accessible to the general public.

3. Targeting underrepresented groups (for lower-skilled positions). Employer can:

try to recruit workers from local or provincial/territorial employment centres,

service centres for Aboriginal youth, new immigrants and people with disabilities;

offer bursaries to attract students or youth, pursue online recruitment strategies,

or undertake ongoing advertising and interviews in order to maintain a pre-

screened applicant pool.

All of the advertisements must include the following:

Company operating name

Business address

Title of position

Job duties (for each position, if advertising more than one vacancy)

Terms of employment (e.g. project based, permanent position)

Wage

Benefits package being offered (if applicable)

Location of work (local area, city or town)

Contact information: telephone number, cell phone number, email address, fax

number, or mailing address;

Skills requirements:

i. Education

ii. Work experience

***Please refer to the LMIA Advertising Checklist in this handbook which can be used as a

quick reference guide when creating advertisements.

STEP 4: GATHER RESPONSES

Using a detailed spreadsheet, prepare the information and reasons why each candidate qualified

or did not qualify for the position. The spreadsheet should include the date the application was

received, the specific requirements for the position, an assessment of each candidate’s

qualifications, place of residence of candidate (if known), notes from the interviews conducted

and references checked. It is important to note that the most important part of this spreadsheet

will be the specific educational and experience requirements for the position. Employers must

give Canadian citizens and permanent residents a realistic shot at qualifying for the position. ESDC

will rely heavily on the job requirements set out in the NOC profile description. If an employer

wishes to impost more stringent experience or educational requirements than that set out in the

NOC profile, it will be essential that a solid business case can be made to justify these added

requirements. Remember that ESDC will expect that any Canadian or PR will be given a fair shot at

the position if they meet the minimum requirements to fill the position.

A properly completed spreadsheet can help significantly when preparing for the inevitable call

from ESDC. We encourage you to include the spreadsheet within the application materials

submitted in support of your LMIA application. In this fashion, you have created an easy reference

guide which sets out clearly why no candidates met the minimum requirements for the position

and result in a significantly less stressful experience when justifying your recruitment efforts to an

Officer.

Tip: If possible, go above and beyond these recruitment guidelines by posting more than

three advertisements, and using at least one of the paid online job websites. The more you

can show that you have reached out to Canadians/Permanent Residents, the more likely

your LMIA application will be approved.

Tip: Ensure that each of the specific content requirements are included within all ads. ESDC

will not hesitate to refuse an LMIA if any of these requirements are missing regardless of

how insignificant they may seem.

Tip: Always maintain internal consistency within all ads, employment agreements,

application forms, etc. Internal inconsistencies can also cause an LMO application to be

refused.

For your reference we have provided a sample spreadsheet that can be used as a guide in creating

one suited to the specific circumstances of your application.

Date Applicant Name

Place of Residence

Education # Years of Experience

[REQUIRED SKILL(S)]

Interview (Y/N)

Reasons

STEP 5: PAY THE FEES AND SUBMIT THE APPLICATION

Once it is clear from your recruitment efforts that no qualified Canadians or permanent residents

are available to fill your position you can then finalize your LMIA application materials and

prepare for submission to ESDC. However, the application cannot be submitted until the four

week recruitment period has been satisfied.

You must first complete all of the required forms (which vary depending on category). As a result

of the more recent changes to the program, Employers must now pay $1,000 for each position

requested under the LMIA in order to cover the cost of processing the application. The processing

fee payment (in Canadian dollars) can be made by:

certified cheque (payable to the Receiver General for Canada)

money order (postal or bank)

Visa

MasterCard

American Express

Tip: As part of the application process, we always submit a detailed letter of support setting

out specific information about the employer, position, NOC Code analysis, prevailing wage

rate, all recruitment efforts as well as benefits flowing to the Canadian labour market when

hiring the foreign worker. Further, this letter provides you with an opportunity to explain

in detail why there are no qualified domestic candidates available and why you needed to

search for candidates abroad.

STEP SIX: ASSESSMENT OF THE LMIA BY ESDC

All LMIA applications go through a rigorous assessment process which includes a telephone call

from an Officer with the main contact person listed on the LMIA application form. The assessment

process follows a systematic pattern designed to confirm the following information.

1. Verify if the employer is eligible to participate in the Temporary Foreign Worker

Program. The list of ineligible employers appears on ESDC Web site and can be found at:

http://www.esdc.gc.ca/eng/jobs/foreign_workers/employers_revoked.shtml

2. Verify if the employer is using an authorized third-party representative, if

applicable. Please note that some recruiters offer to assist employers with placing ads

and preparing the LMIA application materials as part of their quoted recruitment fee;

however, employers need to be careful to ensure they are fully certified to do so, otherwise,

an LMIA application could be refused if the employer is using an unlicensed

representative.

3. Verify that the job offer is consistent with federal-provincial-territorial agreements,

such as employment standards legislation, labour code, etc.

4. Assess the genuineness of the job offer. The assessment is based on whether the:

a. employer is actively engaged in the business related to the job offer;

b. the job offered to the TFW is consistent with genuine employment needs;

c. the employer can fulfil the terms and conditions of the job offer; and

d. the employer and, if applicable, third-party representative is compliant with the

relevant federal-provincial-territorial employment and recruitment legislation.

5. Assess the impact of hiring a TFW on the labour market including:

a. wages and working conditions offered;

b. occupation in which the TFW will be employed;

c. employer's recruitment and advertisement efforts;

d. benefits to the labour market;

e. consultations, if any, with the appropriate union; and

f. effect on the settlement of a labour dispute.

http://www.esdc.gc.ca/eng/jobs/foreign_workers/employers_revoked.shtml

6. Assess previous job offers that the employer has made to a TFW within the 2 years

preceding the date of the new LMIA application. This is to determine whether the

employer has provided substantially the same (STS) wages, working conditions and

occupations as outlined on the previous positive LMIA letter and annex.

7. Ensure that the employer has met all the Program Requirements (i.e. Paid applicable

processing fees, review of Business Licence and other documentation.)

One of the most important aspects of the assessment process is the call you will receive from an

Officer related to your LMIA application. The call was first instituted for “program integrity”

purposes to combat fraud within the LMIA application process. At times, unscrupulous third

parties would submit fraudulent LMIA applications on behalf of unsuspecting employers in order

to secure illegal work permits for foreign nationals seeking to enter Canada. In order to combat

this, ESDC reserved the right to contact the employer directly to confirm information contained

within the LMIA application.

Unfortunately, this call has evolved to much more than a simple confirmation of the employers

desire to actually participate in the program. Employers can now expect something akin to an

interrogation in many instances. Information contained within the LMIA application is often

questioned or even outright challenged as to its accuracy. Often Officers will focus on the

recruitment efforts and why Canadians were disqualified from consideration. As such, it is critical

that you are prepared and ready to defend your need for an LMIA. A properly completed

recruitment tracking chart will help with your defence.

Many LMIA applications succeed or fail based upon the effectiveness of the contact person on the

call. Don’t fall into the trap of placing upper level managers as the contact person unless they have

been actively involved in the recruitment process, preparation of the application materials and are

fully up to speed with the entire LMIA process. We often suggest that the contact person be the HR

Manager or other person directly involved with the application process. Senior management may

continue to remain the signing authority on the application; however, do not assume they also

need to be the main contact person.

Finally, if the contact person is going away on holidays, it is also recommended to include two

people as main contacts for the company so as to ensure a timely reply when the call comes from

ESDC. Applications may be refused if a voice message is not responded to within 48 hours.

STEP SEVEN: DECISION

Following the program integrity call, a final decision will be made on the LMIA application. You

will be notified via facsimile (Western – Territories Region) as to the success of your application.

An Officer will rarely confirm a Positive LMIA over the phone.

Positive LMIA: The employer will receive a letter confirming the approval of the LMIA

application. This positive LMIA is valid for 6 months from the date of issue. For privacy reasons,

the letter will not include the names of the TFWs. However, it provides specific details about the

job offer, such as the wages, working conditions and occupations as well as a system file number.

The names of the workers will appear in a separate, but enclosed pages entitled, Annex B which is

intended for the employer's records only, and is NOT to be shared with the TFW as it is not

required for the purposes of applying for a work permit.

Negative LMIA: If a negative opinion is issued, this means that you have not met all of the

program requirements. Often the main reasons for refusal include the following:

1. deficiencies within the content criteria of advertisements such as a missing business

address or a failure to indicate whether the job was permanent or project based;

2. failing to offer the prevailing wage rate for the position; or

3. no labour shortage is found to exist within the occupation requested. This is the most

frustrating refusal because the Officer is stating, in effect, that they do not believe your

assertions that there are no Canadians or permanent residents available to fill the position.

STEP EIGHT: CONTACT THE FOREIGN WORKER

Once the positive LMIA letter is received, you should then send a copy of the letter to the foreign

worker so that they can apply for a work permit to CIC. The foreign worker must include with the

work permit application a copy of the LMIA Confirmation as well as a copy of the employment

contract signed by both the employer and the worker, and proof that the foreign worker meets the

minimum education and experience qualifications for the position.

Tip: Review closely and ensure the LMIA Approval and Annex accurately sets out the wages,

working conditions, position requirements and position title. It is also recommended to

check the spelling of the TFWs names on Annex B to ensure they have been keyed in

properly. Improperly spelled names can also cause problems when the TFW is applying for

their work permit.

Note there will be additional steps for lower-skilled workers, such as arranging and paying for

transportation costs and arranging for accommodation.

STEP NINE: DOCUMENT EMPLOYER COMPLIANCE

The LMIA process does not end once a positive LMIA is received. The initial assessment process

may be over, but your responsibilities as the employer, extends far beyond the initial first eight

steps above. Once you have secured a positive LMIA and the foreign worker has successfully

obtained their work permit, it is extremely important that you remain compliant with the program

by upholding the terms and conditions of employment as stated in the original job offer and set

out in the positive LMIA confirmation and annexes.

Employers must also follow all federal/provincial/territorial employment regulations and laws, as

well as other labour and human rights legislation. Each of these apply to all employees whether

Canadian, permanent resident or TFW.

Finally, the employer must take immediate steps to follow through on the various activities set out

in the High Wage LMIA Transition Plan. At times an employer will feel that all necessary work has

been accomplished once the LMIA has been approved. However, this could be a fatal error at the

time in which a new LMIA is sought to extend the work permit of the newly hired foreign worker.

Pay close attention to what was proposed within the transition plan and take steps immediately to

put in place a plan to complete these activities over the coming year. If not action has been taken

when the new LMIA is sought, the application would likely be refused.

Tip: Conduct regular internal audits to ensure compliance with all conditions of the LMIA

confirmation by monitoring the expiry dates of work permits, keeping up to date copies of

contracts, work logs, payroll, job duties and location of work readily available. Keep records

when fulfilling the various activities within the Transition Plan. In this manner, you will

always be prepared for employer compliance reviews and other investigations.

LMIA Advertisement Checklist

To ensure your company advertisement meets the specific requirements set out by ESDC under

the LMIA process, you should ensure that each advertisement posting includes all of the following:

Company operating name

Business Address

Title of Position (note: this should be consistent throughout all of your advertisements)

Job Duties

# Vacancies

Terms of employment (permanent, full time, project based)

Wage (preferably per hour breakdown not yearly)

Benefits package being offered (if applicable)

Location of work – local area, city or town (note: indicate all locations that the foreign

worker may be required to work under the work permit, for example:, Calgary, Cochrane

and Airdrie.)

Skill requirements

Education

Work Experience

Contact information

Telephone number;

Cell phone number;

Email address;

Fax number; or

Mailing address

Tips for Successful LMIAs

Don’t define your position too narrowly

Make sure the foreign national meets all of the requirements for the position

Follow the minimum advertising guidelines explicitly (use the checklist enclosed on the

previous page)

Maintain internal consistency within the application

Use a spreadsheet to compile detailed results of recruitment

Clearly document reasons why applicants did not qualify for the position

Do not use language (other than English/French) as requirements on an advertisement

(unless there is a true bona fide reason, which will only be found in the most extreme

cases i.e. translator).

Ensure main contact is reachable via listed number, and if possible provide a second

contact person.

Be prepared to defend the need for the foreign worker during the program integrity call.

Include all of the benefits to the Canadian labour market by hiring this foreign worker.

Make your case as clear and compelling as possible.

Ensure all activities within the Transition Plans are completed after LMIA is approved.

Work Permit Applications

A NOTE OF CAUTION TO HR MANAGERS

If you are currently assisting foreign workers in securing work permits following the successful

issuance of an LMIA, you must proceed with caution.

Pursuant to Bill C-35, only certain people can act as authorized representatives for TFWs before

CIC and the Canada Border Services Agency (CBSA).

Authorized representatives who receive a fee for providing assistance to TFWs applying for visas

to come to Canada must be lawyers in good standing with a Provincial or Territorial law society or

certified immigration consultants registered with the ICCRC. Assistance can include any of the

following things:

1. acting on behalf of a foreign national during an immigration proceeding;

2. helping a foreign national choose the best immigration stream; or

3. filling out any work permit or other immigration forms.

Some discussion has occurred in the past few years as to the applicability of Bill C-35 to HR

Managers who are paid by the company in the course of their job duties to assist foreign workers

in making applications to CIC, Provincial PNP Programs or the CBSA. Although our office does not

feel that the legislation should apply to HR Managers simply doing their job, there has been some

feedback from CIC indicating that HR Managers and International Student advisors within

Educational Institutions could be caught by these provisions.

Although there is no clear directive or case cited where an HR Manager was found liable for

assisting TFWs with immigration applications, during the regular course of their HR duties, we are

aware of some companies who have taken the risk conscious approach of not including these

services within the job description of their HR Managers. Ultimately, it is a choice that must be

made by each company in determining their own level of risk tolerance.

With the many hats an HR Manager wears these days, it is not always easy to stay on top of all of

the many changes that are occurring within CIC and ESDC. It is always prudent to have trusted

legal counsel available should you have a quick question or need more substantive assistance in

ensuring the foreign workers you have recruited are able to successfully obtain their work permit.

There is nothing worse than spending months to obtain the LMIA only to have the foreign worker

apply for their work permit on their own and get it rejected.

In an effort to better prepare HR Managers for navigating the complexities of work permit

applications, we have set out below information designed to help you avoid some of the common

pit falls associated with this process. It is also important to note that we have focused our

discussion on LMIA based work permits and have not provided specific guidance on the many

LMIA exempt work options that exist (i.e. Intra-company transfer, NAFTA Professional, Working

Holiday, Reciprocal Employment, Significant Benefit, etc.)

HOW TO GET THE WORK PERMIT APPROVED

It goes without saying that careful attention must be paid to the details within any work permit

application. Never file a work permit application without carefully reviewing not only the generic

CIC work permit instruction guide and document checklist, but also carefully reviewing the visa

office specific instructions at the consulate or high commission in which the application will be

filed.

Failing to include even the most innocuous item listed on the checklist could result in a refusal. It

would not be helpful to include within this handbook every possible omission that could result in

a refusal. However, a general rule of thumb states that if the guide or checklist asks for something,

or for that thing to be presented in a certain way, follow the instructions explicitly. The

consequences of not following the instructions could be devastating for not only the foreign

national you are recruiting, but for your company as well. It is important to remember that LMIAs

are only valid for 6 months. With current processing times at some visa offices reaching up to 7

months or more, the refused work permit could come back after the LMIA has expired. In these

circumstances, employers would need to start the arduous LMIA application process from the very

beginning including reposting advertisements all over again.

It is tremendously frustrating to see employers waste months of time to secure an LMIA only to

see the foreign worker’s work permit application get refused because of a processing deficiency,

such as the fee payment was not paid in the proper fashion. Few employers have the luxury of

waiting up to a year to secure work authorization for a much needed employee.

A special section will soon be added to our new website which will set forth specific

guidance regarding the various LMIA exempt work permit options available as well as tips

and strategies designed to increase your odds of success.

Visit our website at: www.ht-llp.com

KNOWING WHERE TO APPLY FOR THE WORK PERMIT

There have never been more options for filing a work permit application than there are today.

Applications can be submitted through any one of the following methods depending upon the

circumstances of each foreign national.

1. Paper application directly through a foreign visa office – used for visa required

nationals or those requiring immigration medicals which in most cases will necessitate

that the work permit application be made through a visa office abroad prior to travelling

to Canada. This method can also be used for any foreign national who desires greater

certainty and is not in a terrible hurry to travel to Canada. Others may be nervous

advocating on their behalf before a CBSA Officer and as such wish to have the adjudication

of the work permit completed prior to arriving in Canada so that the adjudication process

at the border will be minimal.

2. Paper or in person application through a visa application centre (VAC) servicing the

visa office where the foreign national intends to apply – VACs are a third-party entity

contracted by CIC to assist foreign nationals in ensuring their application materials are

complete prior to forwarding them on to the visa office. The employees of the VACs are

not immigration Officers and have no decision making power on applications. Their sole

purpose is to ensure all necessary documentation is included and not to give advice on

how to complete application forms nor which immigration streams are appropriate.

Notwithstanding this fact, we have seen VAC employees remove additional documentation

provided by employers in support of complex work permit applications. Use this venue if

processing times are listed as being faster or if the foreign national is less sophisticated

and needs the reassurance that the basic application materials are correct. However, if

biometrics are required, the VAC typically handles this process on behalf of CIC. Not all

VACs are created equal, so it is important to know when to use the VAC and when to file

directly through the visa office. Only experience will be able to tell you which is better.

3. Applying online through the CIC portal – there has been a strong push recently to have

applicants file electronically. There are a number of reasons for CIC doing this, including

operational efficiency. It is entirely possible that paper applications will be gradually

phased out in favour of the online process. In an effort to encourage foreign nationals to

use this service, processing times are often touted as being faster than when filing via

paper. Using the online process can be an attractive option for foreign nationals with

straightforward work permit applications. Instructions are fairly straightforward.

However, the preparation of the application package can be more time consuming given

the challenges working within a virtual environment. The portal itself can often be down

leaving applicants with the frustration of wasting much time continually returning to the

site to see if it is back up. However, we have found that for the most part the online portal

is worth pursuing as filing is instantaneous when you are in a real time crunch (ie. LMIA is

expiring). Foreign Nationals will obviously need access to a computer and be able to

upload scanned copies of their supporting documentation in order to use this process. Our

office really likes this option because of the representative portal created by CIC. The

portal allows us to easily prepare application materials on behalf of clients all over the

world without the added headache of couriering original documents back and forth with

the client. As such, it does not matter where the foreign worker lives in the world, as long

as they are able to scan and e-mail their supporting documents to our office, we can

handle the whole process on their behalf giving them complete peace of mind.

4. Applying in person at a Canadian port of entry (POE) - If a TFW comes from a country

whose citizens require an entry visa to travel to Canada, this option is not available. If time

is an issue, which it often is, filing through the POE is likely your best option for visa

exempt foreign nationals. There are no specific application forms. However, the TFW must

bring with them all necessary supporting documentation to prove their eligibility for the

work permit including qualifications to work within the requested occupation. The POEs

are managed by the CBSA. The CBSA’s primary mandate is border security. As such, TFWs

need to be prepared for a less than inviting experience depending upon the Officer they

appear before. In addition to the individual personalities of the Border Service Officers

(BSOs), each POE tends to have a culture of its own. As such, it is advisable to get to know

the tendencies of certain POEs and avoid those that have a reputation for being less

facilitative. Generally speaking, airports tend to be a little better than land crossings.

However, the Calgary and Edmonton airports do have a reputation for being less

facilitative than Vancouver, Toronto, and Montreal depending upon the type of work

permit you are requesting. LMIA based work permits tend to be fine at most POEs in

Canada. However, we would be remiss if we did not counsel everyone to avoid the Alberta

and Sarnia, Ontario land crossings. The strong enforcement culture that exists at these

ports of entry can make even the most straightforward applications a difficult and

stressful process for the TFW. If travelling by land to an Alberta destination, it is best to

route further east through Saskatchewan or west through BC prior to driving up. If

travelling into Ontario destinations, you have many choices available to you – just avoid

Sarnia if you can.

5. Paper application filed through the Temporary Foreign Worker Unit (TFWU)

seeking pre-approval of an LMIA exempt work permit - although this option is

exclusively for the expedited pre-approval of LMIA exempt work permits for visa exempt

nationals, we thought it would be important to include this. The processing units are

located in Toronto and Montreal. If you are uncertain as to whether or not a foreign

worker may qualify for an LMIA exempt work permit, and do not want to take the chance

at the POE, you may wish to consider this option. However, please note that the TFWUs

tend to be more strict than the POEs and processing times can be as much as 2 to 3 weeks.

As such, we generally recommend that if an application can be made at a POE, it is

typically best to do so versus the TFWU.

TIPS FOR STRENGTHENING THE APPLICATION

Because each situation is different, it is difficult to set out a long list of specific recommendations

that would be applicable to every work permit application. However, after careful consideration,

we have included below some great tips to watch for when filing work permit applications.

1. Ensure that the TFW you have selected actually holds the minimum experience and

education requirements set out in the NOC Position Profile. If the NOC Code position

profile states that several years of experience are required or that a specific educational

credential or license is required, then the TFW must be able to prove they possess this. We

have heard of LMIAs being issued to companies in which the minimum NOC requirements

were not required to obtain the LMIA. This is definitely atypical. However, when the

application was filed to CIC, the visa office refused the work permit application because

the TFW did not meet the minimum employment requirements for the position based

upon the NOC. Always remember that the NOC is the defining document when determining

the minimum requirements to fill a position in Canada.

2. Ensure you are applying through the proper location. Generally speaking, all LMIA

based work permit applications being submitted for the first time must be applied for

from outside of Canada. At times employers will source a TFW who is already in Canada

on a visitor visa. In these circumstances, the work permit application must be submitted

from outside of Canada, which could include a POE. However, exercise extreme caution in

filing this type of land border application for TFWs holding visitor status. It is advisable to

check with legal counsel in advance to determine the best POE to facilitate the work permit

application. Ultimately, only those holding a current work permit or study permit are

eligible to apply to extend or change the conditions on their work permit through the

inland processing centre.

3. If the checklist asks for it, include it. – never fall into the trap of assuming something

doesn’t apply to your situation. We have found that when in doubt, include it. Further, don’t

just rely on the generic CIC work permit checklist to know what must be filed at a visa

office. Always go directly to the visa office website to ensure there are no additional

country specific requirements. At times you will see that the visa office or VAC checklist

requests more documents than the online checklist. We tend to err on the side of caution

and include the extra visa office specific documents regardless of whether they are listed

through the online portal. In order to do so, just bundle them with another document

when they are uploaded. See tip #7 below for further information regarding bundling

documents.

4. Pay the processing fee exactly as requested – if payment is made incorrectly, the work

permit application will be returned. Please note that CIC recently increased the work

permit processing free from $150 CDN to $155 CDN. Further, many visa offices have very

explicit instructions on how the payment is to be made including to whom the money

order should be made out to.

5. Do not misrepresent or counsel misrepresentation. We know this one goes without

saying; however, we would be remiss if we didn’t discuss it. Misrepresentations can cause

huge problems for not only the TFW, but the company representative that advised the

misrepresentation. This can occur by deliberately stating something within the application

materials that is not true (misrep by commission), as well as by failing to disclose

something that if disclosed could impact on the adjudication of the application (misrep by

omission). At times, your job as an HR Manager will require you to carefully scrutinize the

qualifications of some foreign workers when something just doesn’t seem right.

Fraudulent documents are a reality. At times lower skilled and some higher skilled TFWs

have nothing to lose by providing fraudulent documents to secure a work permit. The

consequence of the misrep places them in no worse position than if they had not provided

the fraudulent document – they are still unable to come to Canada. As such, if something

smells fishy, do your due diligence. Also, one of the more common areas of innocent

misrepresentation occurs when dealing with family members. At times a TFW will fail to

include their accompanying dependent family members because he or she alone is

travelling to Canada and they are remaining at home. This could be considered a misrep

that is frequently caught when a person is applying for PR status in Canada and now wants

to include his spouse and dependent children.

6. File online work permit applications early in the morning – the best time to access the

online portal is in the morning. Rather than trying to get an application filed before you

leave at the end of the day, consider doing it first thing in the morning on the next day

when user volumes are much lower.

7. Be creative when trying to upload documents to the online portal – at times we will

want to include documents that are not specifically listed in the online checklist. It can be

frustrating to know how to get them in and the consequences of uploading something to

the wrong spot. It has been our experience that no matter which section you upload

documents to, they all end up in the same place at the end. As such, be creative in how you

deal with the size quotas (4MBs) and other limited headings. We find that many

miscellaneous documents can be included within the counsel submission letter section.

However, if you are running out of room, don’t hesitate to bundle documents together if

necessary. After all, it is not our fault the system has limitations. If you are really

concerned uploading a document to the wrong section will have negative consequences,

include a cover letter that explains why you did what you did and the problem the online

portal created. It would be very difficult for a visa Officer to justify a refusal when the

portal was the source of the problem and you were doing the best that you could.

8. Include additional information on a separate sheet if necessary – whether accessing

the online portal or applying through the traditional paper process, you will at times face a

question on the forms that does not allow sufficient space to properly respond to it. If this

happens, simply include a duplicate page to accommodate for the extra space needed. This

commonly occurs when documenting employment history and address history. When

uploading this to the portal, do not hesitate to include a separate sheet of paper that lists

the specific form number and name in the heading as well as restating the specific

question and number together with the comprehensive response you were unable to fit

within the CIC form. This additional sheet of paper can be uploaded within the counsel

submission section.

9. Ensure photos match the Photo Specification guidelines – although we have never

seen a work permit application rejected because of improper photos, we strongly counsel

our clients to follow the photo specification instructions when uploading photos to the

online portal. Just because it has not happened yet, does not mean your TFW will not be

the first to get their work permit application refused.

10. Consider filing upfront medicals, if required – some TFWs will come from countries

where an immigration medical must be obtained. CIC has now created the option of

allowing TFWs to complete upfront medicals before the work permit application is filed.

This option has the potential of reducing processing times; however, be very wary of doing

this if you intend to file the work permit directly at the POE. BSOs on the border often have

a difficult time navigating CIC’s new Global Case Management System (GCMS) where the

medical results are posted. POEs continue to use the old FOSS system and rarely access the

GCMS unless there is a specific reason to do so. Although the transition to GCMS appears to

be on the horizon for the POE. As such, you could have the TFW complete upfront

medicals, confirm with CIC that they are approved within the GCMS, only to have the TFW

arrive at the POE and realize the BSO is unwilling to search or unable to find the medical

results. Ultimately, if the application is being filed at a visa office, this option is something

worth considering.

11. Make sure the passport is valid for the entire duration of the LMIA – if the passport

expires before the duration granted on the LMIA, the work permit will only be issued to

the expiry date on the passport. If this happens, it is possible to request an extension to the

work permit within Canada once the individual obtains the passport extension, using the

original LMIA confirmation regardless of whether or not it has already expired.

12. Consider filing an extension at a POE if a visa exempt TFW needs to travel and CPC-

Vegreville is taking too long to process the work permit extension – at times an

application will have been made to extend a work permit through the inland processing

centre and a TFW is currently in implied status with a need to travel abroad. If this is the

case, consider providing the TFW with a copy of the submitted application to present at

the POE when returning to Canada so that a request can be made to have the work permit

adjudicated directly at the POE. However, always ensure that the LMIA confirmation is

approved and in the system. We also recommend that you do not apply for a work permit

at the port of entry when the existing work permit has already expired and the TFW is

within the restoration period. If applying through the POE is absolutely necessary, we

recommend that efforts be made to file the restoration application before going to the POE

and consider flying the TFW back into Canada through one of the airports versus flag

poling at a land crossing if the TFW is visa exempt.

DEALING WITH ACCOMPANYING FAMILY MEMBERS

TFWs often wish to bring their dependent family members with them when travelling to Canada

for longer term work assignments or opportunities. It is important to recognize the distinction

between low wage and high wage TFWs (low skilled and skilled workers) and the varied

treatment they receive by CIC during the work permit assessment process at visa offices abroad.

Generally speaking, it is not a major issue for skilled workers to bring their family members with

them when they travel to Canada. However, this is not necessarily the case for all low skilled/wage

workers.

The reason for the differential treatment towards dependents of low skilled and skilled workers

rests in the underlying assessment as to the whether or not the visa Officers believes the TFW and

his/her family will return to their home country following the expiry of their work permits. This

burden is higher for a low skill worker for a number of reasons including: insufficient wage to

support a family in Canada on a single income, limited opportunities for PR status, and fewer ties

to their home country. Contrast this with skilled workers who tend to earn more money, have

options for their spouses to secure open work permits and a number of PR options should the

family decide to remain in Canada permanently.

As a result of the above assessment, some work permit applications for low skilled TFWs have

been refused when they attempt to include their family members within their application. These

refusals typically occur to visa required TFWs living in underdeveloped countries where there is

high unemployment, and few opportunities for the TFW to make an adequate living at home. In

these circumstances, the desire to remain in Canada illegally will be greater if the entire family

accompanies the low skill TFW. Therefore, we generally counsel low skilled workers to not

attempt to bring their family with them unless they have strong ties to their home country,

sizeable savings, significant travel history to other countries, and a wage level in Canada that

would allow for the support of an entire family.

As stated previously, regardless of whether or not the dependent family members accompany the

TFW to Canada, they must be fully disclosed and identified to CIC within the work permit

application materials. However, many of these concerns lessen for citizens of visa exempt

countries as there is a general sentiment that they are not forced to seek employment in Canada

for a better life and as such are less likely to remain in Canada illegally when their temporary

status documents expire.

TIPS FOR DEALING WITH NON-IMMIGRATION ONBOARDING ISSUES

Stay tuned for a special section which will be added to our new website which will set forth

specific guidance regarding a number of the more typical onboarding issues faced by TFWs

seeking entry to Canada to commence employment

Visit our website at: www.ht-llp.com

Keeping Track of Your Foreign Workers & Remaining Compliant

As discussed, it is extremely important that employers understand their obligations to the

temporary foreign worker program and the conditions imposed on them when hiring a TFW.

Employers should conduct an internal immigration audit of their TFWs and collect all necessary

information/documentation to ensure they are in fact compliant.

On the following page you will find a chart which should be used for each TFW currently

employed. The chart will assist in highlighting the most pertinent information and will serve as a

constant reminder of the conditions imposed under their work permit. This chart should serve as

the cover page for each foreign worker file and the file should include copies of the documents set

out in the chart.

Equally important, the chart highlights future obligations and deadlines to encourage immigration

planning to avoid disruptions to your work demands, and adequately prepare the employer for

government investigations. With the four year cap looming for Skill Level B and lower

occupations, employers will need to pay close attention to the expiry dates on work permits to

ensure steps are taken to either transition existing foreign workers into permanent resident status

or alternatively start the process of recruiting new employees once existing staff reach the four

year cap. Please note that all references to LMOs within the flow chart should reflect the new

LMIA regime.

Preparing for Government Investigations

In an effort to assist employers in their compliance efforts, we have set out below a list of

documents that could be requested in the course of an employer compliance review:

Copy of LMIA confirmation and Annex – to ensure work conditions are

correctly stated and being adhered to;

Copy of the Work Permit – to ensure position, name of employer, location

and National Occupational Classification Code is correct;

Payroll records which should include at a minimum: the total

number of hours worked, hourly wage, and all deductions– to ensure

prevailing wage and overtime are being paid;

Description of duties – to ensure the foreign worker is working in the

substantially the same position

Employment Contract – to ensure the foreign worker is continuing to

work under the same approved standards and position;

Time Sheets – to ensure workers are working the agreed number of

hours;

Registration with provincial/territorial workplace safety – to ensure

employer has workplace safety insurance to cover workers in case of

injury;

Proof of payment for transportation costs and accommodation

information (for lower skilled workers);

Copy of Record of Employment – if the TFW is no longer employed by

your company;

Copy of a Collective Bargaining Agreement – if applicable;

Copy of a Work-sharing Agreement – if applicable; and

Health Care Coverage – proof that the TFW’s health care coverage was

provided at the employer’s expense until the foreign worker was eligible

for public health care coverage.

Copy of Workplace Health & Safety Insurance – to ensure compliance

with worker’s compensation requirements

Copies of ongoing recruitment efforts to address current staffing

needs – this forms a critical component to the high wage Transition Plan

Copies of recruitment efforts submitted in support of the previously

approved LMIA

Copy of the Recruitment Summary for the Previously approved LMIA

Summary of Canadian/PR hires and separations for prescribed

period – this is often requested in the context of a disgruntled employee

that files a TFWP, employment standards or similar complaint

Copies of ROEs for Canadians/PRs issued during the prescribed

period – this is also often requested in the context of an employee

complaint

Copies of T4s and Work Schedules for all employees for the

prescribed period – once again, requested frequently in the context of an

employee complaint.

Copy of your “Abuse-Free Workplace Policy and summary of

company’s ongoing efforts to prevent abuse in the workplace –

employee complaint driven

Any discrepancies or proposed changes to the working conditions of the foreign worker should be

communicated immediately to ESDC. In some cases, a new LMIA may be required if non-

compliance cannot easily be remedied through other means. While demonstrating compliance

poses great challenges for an employer, this significant burden can be made manageable with the

collection of documents, an intimate knowledge of work restrictions, and a greater understanding

of the expectations placed on employers by immigration officials.

Employer Compliance Reviews (ECR)

TYPICAL STEPS OF AN ECR

Employers will always be notified that they have been selected for a compliance review, and what

type of review (ECR or inspection). This usually occurs via a telephone call from ESDC following

the submission of a new LMIA application. The new LMIA application is typically the trigger point

for the ECR. However, ECRs can also be complaint driven in the context of a disgruntled employee.

Employers will then be informed in writing of the:

steps they need to take;

conditions for which they need to demonstrate compliance;

types of documents they are required to produce; and

dates by which they are required to produce them.

It usually takes approximately 2 weeks following the notice call to receive the ECR letter from the

Integrity Services Branch (ISO). There appears to be no practical reason why the letter is sent via

regular mail. Further, all correspondence must be mailed back to the ISO as they do not accept any

documentation through other means. The employer is often given just 30 days to submit the

response. Given the fact it can take almost 2 weeks to receive the letter, there is often less than 2

weeks to respond including accounting for sufficient time to courier the document to the ISO by

the deadline.

The ISO has asserted that the reason correspondence occurs via mail is to ensure confidentiality.

As all other information can be sent via facsimile or through the online application portal, it would

seem that the desire for confidentiality is at best a remote consideration. It would appear that the

ISO would rather have the ECR process take as long as possible. The completion of an ECR process

can take anywhere from one month to four or five months depending upon the circumstances of

each review. Employers found non-compliant for more serious violations can likely expect the

process to take many months to resolve with a series of questions and responses back and forth

with the ISO until non-compliance has been fully assessed and ultimately rectified.

It is important to note that although justifications do exist to allow an employer to explain why

innocent non-compliance exists, these justifications can only be used by an employer once. If a

subsequent ECR is triggered, the employer will no longer be able to rely upon the same

justification to explain non-compliance. Further, as indicated previously, the government has

proposed additional changes that would allow for monetary penalties regardless of the reason for

non-compliance. In essence, what is being proposed is close to an absolute liability regime.

Please note that maintaining full compliance is important for not only ECR purposes, but to

minimize the risks associated with breaching employment standards legislation as well. When

filing an LMIA application, employers agree to allow information sharing to occur between ESDC,

the ISO, and other government bodies such as employment standards, worker’s compensation,

human rights etc. If a non-compliant employer has failed to properly pay overtime to a TFW, this

information may be shared with the respective Provincial employment standards body.

Information sharing can and does occur between the various government bodies.

The government is also seeking the legislative authority to compel banks and payroll

companies to disclose financial and other relevant data regarding an employer under

investigation. These proposals have not yet become law.

HOW TO ENSURE THE ECR GOES AS QUICKLY AS POSSIBLE

To ensure the ECR goes as quickly (and as smoothly) as possible, it is best to be organized upfront

by retaining all documents to demonstrate that the information on the LMIA application and the

terms and conditions set out in the LMIA letter and annexes were accurate from the first day of

employment of the foreign worker and up to 6 years after.

ECR’s are not something to be trifled with. When an ECR is triggered, it can hold up not only the

current LMIA application you are in the process of submitting, but if more serious issues of non-

compliance exist, new regulations will give Officers the ability to revoke other LMIAs and even

coordinate with CIC to revoke work permits of existing workers if non-compliance is more

widespread.

MINIMIZING THE NEGATIVE CONSEQUENCES OF AN ECR

Because of the serious nature of ECRs, it is wise to work with legal counsel experienced in dealing

with these matters. Legal counsel can help to identify the key issues focused on by the Integrity

Services Officer (ISO) in advance of your response and help to guide you through the process.

Legal counsel can help to determine which documents should be disclosed, organize materials,

and assist in articulating justifications within the submission letter when documents requested

are unavailable. Where required, legal counsel can help you take any corrective action necessary to

show good faith when responding to the ECR.

Because the ECR process can be quite time consuming, anticipating the concerns of the IOS well in

advance and making the corrective action at the onset, can help to reduce the review period

significantly.

We have enclosed within this handbook a sample ECR letter which provides a general guideline on

what can be expected when dealing with the Integrity Services Branch.

After providing the requested information, if non-compliance is found to exist, employers will be

offered a “one time” opportunity to provide justifications for initial findings of non-compliance

and, in specific cases, to take corrective action. However, if a second ECR is triggered, and non-

compliance has been repeated, employers can expect a much less understanding Program

Integrity Officer.

SAMPLE SERVICE CANADA ECR LETTER

Service Canada

Integrity Services Branch

Address

Address

DATE

Employer ER ID # _____

Address

Address

Dear _________________:

As per our telephone conversation on [date], the purpose of this letter is to inform you, as an employer

of temporary foreign workers (TFWs), of your responsibilities under the Immigration and Refugee

Protection Act and Regulations (IRPA/R). In accordance with the April 1, 2011 amendments to IRPR, all

employers who have employed a TFW during the period beginning two years immediately preceding the

application and who are seeking to hire TFWs, must demonstrate that the terms and conditions set out

in previous Labour Market Opinion (LMIA) confirmation letters and annexes were met. Namely, that

they have provided substantially the same (STS) wages, working conditions, and occupation identified

in the previous LMIA confirmation letter and annex.

As part of our employer compliance review, please find the enclosed checklist to be completed and a list

of documents to be provided. The review period will cover the two years immediately preceding the

date on which your current LMIA application was received. Only submit documentation for transactions

which occurred after [date]. The information can be submitted by regular mail only.

* When submitting documents that may contain personal information such as a social insurance

number, the name of an employer other than the TFW, or personal financial codes/bank account

numbers, as an employer, it is your obligation to protect personal information. Please ensure

care is taken to avoid the inclusion of this personal information. Once your documentation has

been reviewed, it may be necessary to contact you for further clarification.

During the review, where it is found that you have not provided wages, working conditions or an

occupation to a TFW that were substantially the same as the terms of employment as stipulated on the

LMIA confirmation letter and annex of the previous job offer, you will have the opportunity to provide a

rationale and undertake corrective actions. ESDC/Service Canada will work with you to implement the

appropriate compensation. Should you not provide a reasonable justification, refuse or only partially

implement compensation, you may be deemed ineligible for the Temporary Foreign Worker Program

(TFWP). It is important that you be advised that a justification will only be accepted once. If you are

found to have failed an STS assessment, access to the TFWP will be denied for two years. Finally,

where there is reason to believe that you may have not fully adhered to the requirements of the TFWP,

ESDC/Service Canada may share this information with the relevant federal and/or provincial/territorial

bodies where appropriate authorities exist. 3

Your cooperation is appreciated and we look forward to receiving the documentation by [date]. NOTE:

Failure to submit the requested documentation will result in the refusal of your pending Labour Market

Impact Assessment (LMIA) application(s).

Please submit documentation by mail to the investigator below at the following address:

Officer

Address

Address

Address

Once your review has been assigned to an investigator, they will contact you by phone.

Sincerely,

Name

Integrity Services Officer

Number

3 Please note that in a recent ECR letter received by a client that was allegedly triggered by a disgruntled x-employee, the section in yellow was removed from the letter. This may be some indication as to the type of ECR being conducted (i.e. LMIA triggered versus complaint driven).

Site Visits

Coming soon will be a special section setting forth specific guidance regarding site visits and

what to expect when they happen. At the time of preparing this guide, no site visits had yet

taken place. We will ensure to update you regarding the ways in which you can minimize the

negative consequences of these surprise visits.

Topics covered will include:

WHAT TO EXPECT WHEN AN OFFICER STOPS BY YOUR BUSINESS

KNOWING THE BOUNDARIES OF AN OFFICERS JURISDICTION: WHAT THEY CAN AND CAN NOT DO DURING A SITE VISIT

HOW TO MINIMIZE THE NEGATIVE CONSEQUENCES OF A SITE VISIT

Visit our website for updates at: www.ht-llp.com

Online Resources

RECRUITMENT RESOURCES

www.jobbank.gc.ca (National Job Bank)

www.monster.ca

www.careeraim.com

www.jobboom.com

www.workopolis.com

www.indeed.ca

www.jobshop.ca

NATIONAL OCCUPATIONAL CLASSIFICATION WEBSITE

National Occupational Classification 2006:

http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/Welcome.aspx

Matrix: http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/html/Matrix.html

WAGES

Job Bank Website: http://www.jobbank.gc.ca/

LABOUR MARKET OPINION APPLICATION PROCESS

http://www.esdc.gc.ca/eng/jobs/foreign_workers/

LABOUR MARKET INFORMATION

Job Bank Website: http://www.jobbank.gc.ca/

http://www.jobbank.gc.ca/

http://www.indeed.ca/

http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/Welcome.aspx

http://www30.hrsdc.gc.ca/NOC/English/NOC/2006/html/Matrix.html

http://www.workingincanada.gc.ca/wage-outlook_search-eng.do;jsessionid=5035A2785088F25FF97760653FA6E3B8.imnav1?reportOption=wage

http://www.esdc.gc.ca/eng/jobs/foreign_workers/

http://www.workingincanada.gc.ca/wage-outlook_search-eng.do;jsessionid=5035A2785088F25FF97760653FA6E3B8.imnav1?reportOption=wage

Company Information – Holthe Tilleman LLP

As a dedicated Business Immigration law firm, we have particular expertise in assisting Canadian

based corporations and businesses with respect to the recruitment and retention of foreign skilled

and semi-skilled workers. We also place significant emphasis on assisting employers in

maintaining compliance with the Temporary Foreign Worker Program including preparing for

government immigrations audits and site inspections.

We have worked hard to foster positive relationships with government Officers and in establishing

ourselves as the firm of choice for any corporation seeking to relocate or transfer key employees

to Canada. We also offer direct assistance to individuals seeking assistance in navigating the

complex web of Canadian immigration law.

MARK HOLTHE PARTNER

RYAN TILLEMAN PARTNER

MARIANA HOHMAN ASSOCIATE LAWYER

Tel 403.328.1441

Fax 403.328.2229

[email protected]

Tel 403.236.7332

Fax 403.236.7331

[email protected]

Tel 403.453.2557

Fax 403.328.2229

[email protected]

Holthe Tilleman LLP

#10, 24 Mt. Burke Blvd. West, Lethbridge, Alberta

T1K 7X9

Tel 403.328.1441

Fax 403.328.2229

www.ht-llp.com

Holthe Tilleman LLP

505, 10333 Southport Road SW, Calgary, Alberta

T2W 3X6

Tel 403.236.7332

Fax 403.236.7331

www.ht-llp.com

hr managers guidebook

Documents

hr immigration handbook

skilled foreign workers

employer compliance

essential foreign labour

use of compliance reviews

handbook updates

immigration landscape

human resource managers