January 14, 2014

Temporary Foreign Workers Program

Changes and New Requirements

Overview

• Purpose of the Temporary Foreign Workers Program (“TFWP”)

• Motivation for the TFWP Changes

• Goal of the TFWP Changes

• Key Changes

• Reactions to the TFWP Changes

• The Newest Changes – as of December 31, 2013

Purpose of the Temporary Foreign Workers Program

• Deal with acute skill shortages on a temporary basis

• Intended to be a last resort for employers

Motivation for Changes

• Recent news stories:

• Mining company planning to import as many as 200 Chinese miners to work in Northeastern BC

• RBC plan to outsource information technology jobs to Indian workers

• In 2011, number of foreign workers in Canada doubled compared to ten years ago.

Goal of the Changes

• “Qualified Canadians, including new Canadians, should have first crack at available jobs.”

Honourable Chris Alexander, Minister of Citizenship and Immigration – August 7, 2013

• Support Canada’s economic recovery and growth

• Balance needs of employers with needs of Canadian workers

Key Changes

• Removal of wage flexibility

• Suspension of the Accelerated Labour Market Opinion (LMO) process

• Processing fee for LMOs

• Official languages restriction

• Advertising requirements

• Assessment of impact on job market

Removal of Wage Flexibility

• What’s changed?

• Previously, employers could pay temporary foreign workers (“TFWs”) up to 15% less than the prevailing wage

• Less than 5% of employers used this wage flexibility

Removal of Wage Flexibility

•New requirement:

• Employers have to pay TFWs the prevailing wage in the industry

Suspension of the Accelerated LMO

• What’s changed?

• Previously, certain employers could obtain an LMO more quickly and easier than the general process

• Some employers of higher-skilled workers could use accelerated LMO to bring in much-needed workers efficiently

Suspension of the Accelerated LMO

• New requirement:

• All employers are required to use the standard LMO process, which may take months for approval

• Suspension is temporary, but unclear when the accelerated LMO process will be reinstated

Processing Fee for LMOs

• What’s changed?

• Previously, there was no fee associated with applying for an LMO

• Administration costs of processing LMOs were covered by tax dollars

Processing Fee for LMOs

• New requirement:• Employers must pay a $275 LMO processing fee

per position

• Fees have to be submitted at the time of the application with a Processing Fee Payment Form

• Employers cannot recover the processing fee from TFWs

• No refunds are issued for a negative LMO

Processing Fee for LMOs

•Purpose of fee:

• In 2012, 60% of positive LMOs did not lead to a work permit being issued to a TFW

• Decrease wasted tax dollars

• Expecting a 30% decrease in LMO applications

Official Languages Restriction

• What’s changed?

• Previously, employers could include other languages as a job requirement when advertising or recruiting for a position

Official Languages Restriction

• New requirement:

• Only official languages, French and English, can be listed as a job requirement.

• Gives Canadians every opportunity to apply for available jobs

Official Languages Restriction

• Exceptions:

• Rare circumstances will allow non-official languages

• Onus on employer to prove that a non-official language is a job requirement

• Assessment of the LMO will consider the rationale for needing a non-official language

Official Languages Restriction

• Examples• Translator of non-official languages

• Tour guide to foreign tourists in non-official languages

• Negative LMO if employer fails to show non-official language is an essential element of the job

Advertising Requirements

• What’s changed?

• Employers used to be able to advertise a position to Canadians for only two weeks

• Positions had to be advertised in the Job Bank (national or provincial equivalent) and by only one additional recruitment method.

Advertising Requirements

• New requirements:

• Duration of advertising: at least four weeks before applying for an LMO

• Location/method of advertising: Job Bank (national or provincial equivalent), plus two other recruitment methods

• Employer has to continue actively seek Canadian workers for the position until the LMO has been issued

Advertising Requirements

• High-skilled Occupations:

• One recruitment/advertising method has to be national in scope

• Lower-skilled Occupations:

• Show effort to target under-represented groups, such as youth or people with disabilities

Advertising Requirements

• Elements to include in advertisement:• Salary• Skills required• Nature of the position

• Advertising of the position must be done within the three months immediately prior to the LMO application

Assessment of Impact on Labour Market

•What’s changed?

• New questions added to the LMO application regarding the employer’s use of TFWs and the impact on the Canadian labour market

Assessment of Impact on Labour Market

• Types of questions:o Will it lead to job losses for Canadian workers?o Outsourcing or offshore practices?o What efforts were made in the past two years to

hire and/or train Canadian workers for the position?

• Negative LMO if there is a negative impact on the Canadian labour market

Reactions to the Changes

• Mixed reviews• Makes process less discretionary and more

predictable

• Not flexible enough for different labour markets across Canada

• Up to 60% of TFWs do not require a LMO

• Not enough monitoring of workplaces once TFWs are in Canada

• Lacks enforcement mechanisms

The Newest Changes – as of December 31, 2013

• New conditions imposed on employers• Retain documents for 6 years

• Authority to verify the employer’s compliance by:• Conducting warrantless on-site inspections• Interviewing foreign workers or Canadian

employees, by consent• Requiring employers to provide documents

that relate to compliance

The Newest Changes – as of December 31, 2013

• Penalties of non-compliance:• Employers could be subject to a ban of 2

years from the TFW program• Employer’s name, address and period of

ineligibility will be put on the CIC website• Any LMO application in progress will be

negative• Revocation of any previously-issued LMOs.

The Newest Changes – as of December 31, 2013

• Power to suspend/revoke LMOs or refuse to process altogether• Employer will be notified and given

opportunity to respond

• Suspension – If LMO suspended, cannot use to get a work permit.

• Revocation – permanent cancellation. Can occur before or after a work permit has been issued.

The Newest Changes – as of December 31, 2013

• New LMO application includes:• modified questions• Additional employer attestations regarding

responsibilities

Summary – A Brave New World?

• Canadian workers should be first choice, with foreign workers being a last resort

• No wage flexibility

• LMO processing fee and not accelerated

• Official language requirement restrictions

• More and longer advertising requirements

• Monitoring impact of foreign workers on the labour market