Canadian Immigration Year-In-Review Part II: Temporary Residence

Last Updated on abril 7, 2017

The plight of Canada’s temporary foreign workers and the businesses that employ them has been a regular agenda item of the federal government throughout 2016.

The Temporary Foreign Worker Program inherited by the Liberals from the Conservatives appeared to frustrate everyone – from workers, to employers and human rights campaigners.

Throughout the year, Immigration Minister John McCallum and his team at Immigration, Refugees and Citizenship Canada have been assessing what changes were needed to make the program more suited for its purpose.

The aim was to achieve the difficult balancing act of fulfilling the needs of businesses while not giving away jobs to foreign workers brought in from abroad that Canadians could be hired to fill.

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Did You Know?

Both Immigration Minister John McCallum and Prime Minister Justin Trudeau have used the TFWP in their personal lives, the former to hire a caregiver from the Philippines for his 92-year-old mother, and the latter to bring in two nannies for his children.

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A Standing Committee report into the TFWP, delivered in September after a series of hearings in which all stakeholders were allowed their say, made 21 recommendations for improvements that should be made.

The government’s main point of action has been to abolish the four-in, four-out rule that limited the total amount of time workers could remain in Canada under the TFWP. More changes are expected in 2017.

In this report, immigration.ca looks back on a year of evaluation of the TFWP affecting temporary workers in Canada.

Early 2016: Frustrations With TFWP

• Workers

A key challenge of the TFWP is maintaining workers’ rights while delivering a program intended to bring them to Canada temporarily, and at the same time ensuring no Canadians are losing out on employment opportunities.

One of the main issues with the program is the power this gives employers over employees, especially those on employer-specific contracts. There have been many reports of temporary workers reluctant to raise complaints against an employer because of that power.

Reports have included workers working seven days a week without overtime, or being housed in poorly maintained accommodation. Avenues to complain exist, but go unused with workers fearing they will lose their jobs and be sent back to their home countries.

Elsewhere, backlogs with provincial nominee programs, particularly Alberta, saw temporary workers reach the four-year time limit before applications for permanent residence were processed, forcing them to return to their home countries or become illegal.

• Employers

High-profile cases of abuse of the TFWP saw the Conservatives impose some strict limitations on use of the program in sweeping 2014 reforms. The reforms created the International Mobility Program and raised the cost of a Labour Market Impact Assessment (LMIA) – the process of assessing whether a Canadian is available to do a job – from $250 to $1,000. Further changes saw caps put in place designed to eventually reduce the number of foreign workers to 10 per cent of a company’s workforce.  The Conservative changes saw the numbers of temporary workers in Canada dramatically reduced, from almost 120,000 in 2013 to under 75,000 in 2015.

As a result of the changes, and particularly the caps, businesses including meat processors in Alberta and fish cleaning plants in the maritime provinces could no longer operate at full capacity – no Canadians wanted the jobs and caps meant they could not bring in workers using the TFWP.

Mid-2016: Federal Government Relaxes Caps

The Liberals relaxed the planned 10 per cent cap ahead of July 1, 2016, when it was due to be imposed. The government recognized employers were already struggling to fill positions with the cap at 20 per cent, and decided not to reduce it further. In reality, the relaxation of the cap came too late for many businesses who had already made the necessary adjustments in anticipation of the caps being imposed. Many were left back at the start of the hiring process after laying off foreign workers.

Summer 2016: Standing Committee Review

Throughout the summer, a government Standing Committee conducted a review of the TFWP and how it could be changed to solve some of the problems experienced by workers and employers. The committee heard from a number of stakeholders in conducting the review, although it also faced criticism for not being thorough enough on what is a crucial program for Canada’s economy. One of the key aspects of the review was whether temporary workers should be given a pathway to permanent residence, an issue that polarized opinion.

September 2016: Standing Committee Recommendations

The committee found it difficult to attain balance in its recommendations for TFWP. It stopped short of recommending a direct path to Canadian permanent residency for all temporary workers, which would have been untenable.

It did imply there was scope for more temporary workers to become permanent residents, especially those who have integrated into Canadian society and are fulfilling a labour market need. It is right to remove some of the barriers to permanent residency that exist simply because of the way the Canadian immigration system is structured.

All 21 Standing Committee recommendations are listed below. For full analysis, click here.

RECOMMENDATION 1

Extend work permits for caregivers in the low-wage stream from one to two years.

RECOMMENDATION 2

Review the LMIA application process with a view to increasing speed and efficiency, and taking into consideration the National Occupation Classification as well as the adequate allocation of resources towards training and meeting service standards.

RECOMMENDATION 3

Implement a Trusted Employer Program with the objective of reducing LMIA processing times for employers who have demonstrated trustworthiness in their use of the TFWP.

RECOMMENDATION 4

Review the policy with respect to foreign faculty members currently employed or seeking employment with a recognized Canadian academic institution, whose employment is currently dependent upon a LMIA, with a view to providing exemptions or accommodations for this class of foreign nationals.

RECOMMENDATION 5

Allow minor modifications to contracts between TFWP employers and employees with regards to the nature of the work and increases in wages if both parties consent, the changes do not disadvantage the worker, and Employment and Social Development Canada is adequately informed of any changes in short order. The changes must not violate the spirit of the job description.

RECOMMENDATION 6

Restructure the TFWP such that it achieves better overall economic and social benefit for Canadians and program participants. Re-establish the TFWP into more specific program areas and streams that adequately reflect the realities of labour market needs in Canada.

RECOMMENDATION 7

Study the impact of expanding the definition of primary agriculture as found in the Immigration and Refugee Protection Regulations.

RECOMMENDATION 8

Review and improve mechanisms in which migrant workers are brought into Canada to fill both temporary and permanent positions, preventing the use of the Temporary Foreign Worker Program to satisfy permanent labour needs.

RECOMMENDATION 9

Provide an exemption on the Transition Plan requirement for 5% of a business’s workforce that consists of high-wage temporary foreign workers.

RECOMMENDATION 10

Implement measures to ensure appropriate training and education resources are allocated in those fields most likely to present labour and skills shortages. Also, that appropriate apprenticeship targets be included as a requirement of the Transition Plan for employers to ensure they meet their recruitment and training obligations for Canadians.

RECOMMENDATION 11

Monitor labour market needs as to ensure skills, training, and educational output match Canada’s current and future employment needs such that reliance on foreign labour diminishes, and invest in better collection and retention of labour market information in Canada to adequately assess labour market needs.

RECOMMENDATION 12

Set the cap on the percentage of temporary foreign workers a business can employ at a minimum of 20 per cent, and further review sector and geographic considerations.

RECOMMENDATION 13

Take immediate steps to improve the collection of labour market data and review the geographic zones used for determining unemployment rates, with a view to aligning the labour market conditions of more localized economies with the requirements of the TFWP.

RECOMMENDATION 14

Take immediate steps to eliminate the requirement for an employer-specific work permit; provided that it implement appropriate measures to ensure temporary foreign labour is only utilized within the existing provisions of the LMIA process, including sector and geographic restrictions.

RECOMMENDATION 15

Provide multiple entry work visas for temporary foreign workers employed in seasonal work, with the objective of allowing these individuals greater mobility during off-seasons; that when a work visa is extended, the multiple entry visa must also be extended so workers can continue to enter and leave Canada.

RECOMMENDATION 16

1. a)  Review the current pathways to permanent residency for all temporary foreign workers, with a view to facilitating access to permanent residency for migrant workers who have integrated into Canadian society and are filling a permanent labour market need.
2. b)  Allocate adequate resources to allow for the timely processing of permanent residency applications for those migrant workers that are hired under the TFWP.

RECOMMENDATION 17

The IRCC should work with provinces, territories and other government departments to increase information sharing to create more harmonization with immigration and nominee programs to function in collaboration with one another. That these efforts aim to reduce duplication of work benefitting both the government and applicants.

RECOMMENDATION 18

Amend the Immigration and Refugee Protection Regulations to remove the relevant provisions with respect to the “cumulative duration” rule.

RECOMMENDATION 19

Reform the Express Entry program to allow for fixed-term employment contracts to be allocated the same number of points as permanent work contracts, where there is a strong likelihood of continued employment.

RECOMMENDATION 20

Review current monitoring and enforcement mechanisms, with the objective of addressing gaps in employer compliance and the protection of migrant workers’ rights. In addition, an effort shall be made to move away from a complaint driven model of program enforcement. The review shall take into consideration the following specific measures:

1. a)  Increase resource and information sharing with provinces and territories.
2. b)  Increase frequency of on-site inspections while temporary foreign labour is being used.
3. c)  Creating an accreditation system for recruiters, which requires compliance with TFWP rules and from which employers could exclusively select.
4. d)  Establish a dispute resolution mechanism for migrant workers when conflict with an employer arises.
5. e)  Ensure, through on-site inspections, that labour laws and regulations are properly enforced where migrant workers operate
6. f)  Guarantee that any workplace injuries that require immediate attention be granted emergency care where deemed necessary in Canada.

RECOMMENDATION 21

Establish measures to ensure incoming migrant workers and their employers are informed of their rights and responsibilities under TFWP, including dispute resolution and abuse reporting procedures, as well as information on wages, benefits, accommodations and working conditions. This information should be provided in the language of preference of the migrant worker.

December 2016: Initial Action From Federal Government

• The four-in, four-out rule was scrapped with immediate effect, as recommended by the Standing Committee. Under the rule, temporary workers who had been in Canada for four years became ineligible to work here for the next four years.

Immigration Minister John McCallum said at the time: “In many ways, the four-year rule put a great deal of uncertainty and instability on both temporary workers and employers. We had the sense that it was an unnecessary burden on applicants and employers, and also on officers who process applications. We believe this important recommendation from the committee requires rapid action.”

• A work force cap of 10 per cent was maintained for employers who began using the TFWP after June 20, 2014. For those using the program since before that date, the cap was set at 20 per cent. The Standing Committee had recommended the 20 per cent cap be imposed across the board. The exemption on the cap for seasonal industries seeking temporary foreign workers for up to 180 days during the 2017 calendar year was extended until December 31, 2017.

• Low-wage employers will be required to advertise positions to under-represented groups including young people, those with disabilities, Indigenous people and new immigrants, ensuring Canadians are not losing out on opportunities. These changes are yet to come into effect, with the government saying it will notify employers when they do.

December 2016: Changes Welcomed

Unions and employers welcomed the initial changes. The United Food and Commercial Workers Union (UFCW), plus Canada-wide businesses in a variety of sectors, said the changes would help improve worker rights and help companies get the staff they needed to operate at full capacity.

Electronic Travel Authorisation (eTA)

Canada also found time to implement the Electronic Travel Authorisation (eTA) in 2016, after extending the leniency period as travellers said they were unaware of the new rules.

All travellers from visa exempt countries are now required to get an eTA before they travel to Canada by air, including those passing through.

Importantly, the change also meant Canadians with dual citizenship would now have to use their Canadian passports to fly here, a section of the new policy that caused particular confusion.

There remains a special authorization system in place for those caught out over the holidays. For more information, click here.

Technology Sector Announcement

Following repeated feedback from the technology sector saying processing times were too long for bringing in top talent, the government has announced its plan to introduce a Global Skills Visa early in 2017.

The new plan is to allow companies that qualify to get visas and work permits approved inside two weeks as standard.  Under the current system, the minimum processing time is six months.

Planned changes will also see the creation of a 30-day work permit that can be spread across a year, meaning companies can bring in workers for short stints without the need to apply for new paperwork each time.

The visa may not only apply to the technology sector, with a recent indication it could also include target businesses that are granted access by the federal government. This is one area to look out for in 2017.