Under the Temporary Foreign Workers Program (“TFWP”), CIC facilitates the temporary entry of foreign workers needed to address labour market shortages and to provide other economic opportunities for Canadians, such as job creation and the transfer of new skills and knowledge. With a few exceptions, foreign workers must have an approved job offer and a work permit before arriving in Canada. CIC works with HRSDC to ensure that the admission of foreign workers does not adversely affect employment opportunities for Canadian citizens or permanent residents.
The TFWP program is made up of four streams: high-skilled workers, low-skilled workers, the Seasonal Agricultural Worker Program, and the Live-In Caregiver Program.
At the LAW OFFICES OF COLIN R. SINGER, we frequently assist employers and job seekers in securing favourable HRSDC labour opinions and thereafter, in applying for a Canada work visa.
Readers who have received a temporary offer of employment in Canada and require our assistance to procure a work permit are invited to complete the following questionnaire for our review and evaluation at no charge.
The hiring of a temporary foreign worker begins with employers requesting Human Resources and Skills Development Canada (HRSDC) for a positive "labour market opinion" (LMO). Without an approved LMO, Citizenship and Immigration Canada cannot issue a work permit.
The LMO assessment includes verifying whether the foreign worker fills a labour shortage, whether the employer has advertised the job for a minimum of 14 days on the national Job Bank, and whether wages offered are commensurate with what Canadians or permanent immigrants are earning for similar work.
In addition to this, for low-skilled foreign workers – for jobs that require no more than a high school diploma or up to two years of on-the-job training – employers must sign a contract with the worker outlining wages and working conditions. The contract must also indicate that the employer will pay for travel costs from the home country and back, will not recoup recruitment costs from the worker, will help the worker find suitable and affordable housing, and will provide medical coverage until the worker is eligible for provincial health coverage. Taxes are deducted from worker pay cheques. But they're not eligible for welfare if laid off. They can receive unemployment insurance, but in practice, few who apply do. And in Alberta and Ontario, seasonal agricultural workers are barred from joining unions.
Under the Live-in Caregiver Program, Employers will be required to include mandatory clauses in their employment contracts that address employer paid benefits, accommodations, duties, and hours of work, wages, holiday and sick leave entitlements and conditions for termination. Caregivers will benefit from additional facilities that must be paid by their employers. This will include transportation costs from their country of residence to Canada, private medical insurance prior to provincial health coverage, workplace safety insurance and recruitment fees associated with their hiring.
Two year penalty for employers
To hire a TFW under the current process, an employer must satisfy a Service Canada officer that the offer of employment is “genuine” before obtaining a positive Labour Market Opinion (LMO). For an offer to be “genuine” it must meet various requirements including salary standards, the occupational description and the employer’s documented efforts to hire local Canadians.
In addition to existing requirements a more rigorous and far reaching standard is being applied to ensure that examining officers have the necessary tools to determine the “genuineness” of a job offer. Where the officer determines an offer is not “genuine” the employer could be barred from recruiting any TFWs for a period of two years.
Where an employer is found to have breached its commitments to the TFW, all of its work permit applications will be refused for a two-year period. Additionally, the employer’s name will be posted to a list on a public government website and foreign workers would be prohibited from accepting employment with listed employers. Even violations to provincial and federal labour laws can result in penalties for the employer. Under these new regulations, employers will bear responsibility to closely monitor all of its activities pertaining to their TFWs, hired directly or indirectly through a recruiter.
Changes in the terms and conditions of employment through promotions, salary increases or job descriptions must be carefully reviewed with Service Canada before implementation. Reliance on legal counsel will become more paramount for human resource managers.
Criteria for “genuine” of job offers
The government has established additional criteria to determine if a job offer is “genuine”. These criteria include the following:
- Whether the employment is being made by an employer that is actively involved in the field which the job offer is being made;
- Whether the offer is consistent with the employer’s labour needs;
- Whether the employer can reasonably fulfill the terms of the job offer; and
- Whether the employer, or recruiter acting on behalf of an employer, has previously complied with provincial and federal laws regulating employment or recruiting of workers.
Employers who incur a two-year TFW penalty will have all subsequent offers deemed to be “lacking in genuineness” for the duration of the penalty period, regardless of whether the above criteria are met. Prior violations of provincial or federal laws regulating employment (irrespective of whether those violations were connected to a TFW or a local worker) could also result in an officer determining that the job offer lacks genuineness.
The new rules appear far reaching and employers and by extension human resource managers will be required to maintain a close review of their foreign worker portfolios.
TFWs can work for a maximum of four years
The new rules will limit the number of years that a TFW may be authorized to work in Canada. Most foreign workers will be allowed to extend their work permit for a maximum cumulative period of four years. Once this cap is reached workers will be required to wait four years before they can reapply. However, certain categories of foreign workers are exempted from this limitation. These include workers employed in specific fields of significant social, cultural or economic benefits to Canada and TFW’s working under specific international agreements like NAFTA or GATS.
As a result of this new cap employers will be encouraged to initiate the process of applying for permanent residence on behalf of their foreign workers well in advance of the four year limitation.
If you are authorized to work in Canada, your accompanying family members may be able to work in Canada by virtue of the permit you were issued. If they intend to work while in Canada, your accompanying family members apply for an “open” work permit.
Open work permits allow them to work in any job with any employer with limited exception. An open work permit also means that they may be hired without the employer having to obtain an LMO.
Generally your spouse’s eligibility for an open work permit depends on the skill level of your job.
If you are considered a high skill worker, your spouse or common-law partner could be eligible for an open work permit. You must also be authorized to work in Canada for a period of at least six months.
If you are considered a low skill worker, your spouse will only be eligible for an open work permit through an active pilot project.
In addition to this, your dependent children eligibility for an open work permit can only be determined through an active pilot project.
Accompanying family members must always apply for their own work permits. They should apply for one at the same time as you, before entering Canada. Should the decision to work occur only after their arrival in Canada, they can apply once they are in this country.
It's easier for high-skilled temporary workers to bring over their families while working in Canada than it is for those in low-skilled categories. High-skilled workers can also apply to become permanent residents under the Federal Skilled Worker Program or the Canadian Experience program, set up in 2008. Low-skilled workers must qualify under Provincial Nominee Programs.
For low-skilled workers, their best opportunity for permanent status is to apply through Provincial Nominee Programs. Some programs allow low-skilled foreign workers in designated industries to become nominated for permanent residency by their employers.
Live-in caregivers can apply for permanent status after accumulating over two years of work experience. Under the new rules they will have four years to meet this requirement. They may also avail their overtime working hours to apply for PR earlier. They will become eligible to apply for PR after working for two years at regular full-time rates or after accumulating 3,900 hours over a minimum of 22 months with a maximum of 390 overtime hours.
(The following is a list of occupations where there are confirmed labour market shortages in certain areas of Canada)
- Construction and Skilled Trades:
Construction project managers, project superintendents and project coordinators, construction superintendent, site coordinators, construction manager, construction site manager, construction schedule coordinator (flooring assistant install), construction labourer, construction labourer-cribber, various construction positions-engineering designer, engineering field supervisors, legal surveyors, construction field engineer, construction surveyors and subdivision inspectors, construction sheet metal worker-journeyman, fabrication welder, welder, renovation carpenter (kitchen cabinet installer), framing carpenter, framer helper-construction (residential homes), carpenter, wood frame house carpenter, cabinetmaker, carpenter (finishing), floor covering installer, stucco plaster (experienced) millwright-utilities, millwrights.
- Machining and Equipment Operators
CNC machinist, machinist, heavy equipment mechanic, heavy equipment combination mechanic, heavy duty equipment technical-welder, heavy mobile mining equipment mechanic-service technician, heavy duty equipment technician-service technician, heavy-duty equipment mechanic, machine tool operator-metal machining, precision machinists-CNC milling or turning centres, labourer-metal fabrication, Hydraulic Technicians Tool & Die Makers.
Automotive electronic accessories installer and repairer, motor vehicle diesel engine mechanic, engine mechanic-motor vehicle, auto body repairer, service technician-motor vehicle repair, automotive technician-engine and fuel systems, automotive technician-front-end systems, automotive technician-standard transmission systems, automotive technician-automatic transmission systems, automotive technician-brakes systems, heavy diesel engine mechanic (general truck repair), automobile mechanic, industrial instrument mechanic (journeyperson), journeyman/woman sheet metal worker, journeyman/woman.
- Engineering and Electrical, Industrial, Manufacturing
Electrician, electrical engineer, electrical technician, electrical mechanic, electromechanical technician, industrial electrician, electronics technician-household and business equipment, cable television service installation technician, civil engineering technologists and technicians, civil engineering design technologist-timber frame mechanical engineering service manager, second -class power engineer, design Engineers (metalworking & plastics industry), machinist for production of molds used in the plastics industry, design technicians (metalworking & plastics industry), electrical mechanics medical radiation technologists electronic service technicians (household and business equipment), mold makers for the plastics industry fabricators (metalworking & plastics industry), fitters (metalworking & plastics industry) refrigeration and air conditioning mechanics foundry engineers.
Floriculture grading and quality control, grain farm worker (seed cleaning operator), hog farm worker, swine herdsperson dairy farm labourer, long haul team driver (truck driver).
Veterinarians, nurses, technical and related occupations in health, doctors, social workers, dental hygienists, pharmacists, medical laboratory technicians, psychologists, respiratory therapists and clinical perfusionists.
If you are a Canadian employer wishing to hire a foreign worker, or have been offered a position by a Canadian employer, we invite you to complete our Free Online Evaluation to obtain an assessment of your qualifications for Canadian work authorization