Permanency for Temporary Workers – The Outcome of Recent Changes

Last Updated on August 29, 2016

The following is a summary of recent developments in the Canadian Immigration industry which appeared in the April edition of the Canada Citizenship and Immigration Bulletin.

Introduction

Over the past 12 months, the Canadian immigration landscape has undergone a considerable amount of change. The biggest of these changes was Employment and Skills Development Canada’s (ESDC) plan to reform the Temporary Foreign Worker Program (TFWP) by restricting the number of foreign migrants coming to Canada for short-term employment opportunities.

Simultaneously, Citizenship and Immigration Canada (CIC) provided an ever-expanding list of permanent residence options to foreign nationals, who also had Canadian work experience. By doing so, it began moving from a guest worker type model to a model where foreign nationals felt encouraged to immigrate and establish themselves successfully in Canada.

The History and Growth of the TFWP in Canada

Historically, Canada had often recruited migrant workers for employment in specific sectors. The Non-Immigrant Employment Authorisation Program (NIEAP), which came into being in 1973, changed that. It established a formal regime for recruiting foreign workers to address short-term labour shortages.

Initially, the TFWP enabled Canadian employers to recruit highly skilled workers. These workers needed to have the relevant education and experience, which was not readily available in Canada at the time. With the passage of time however, employers began to rely increasingly on the TFWP to fill routine job openings.

Guest Worker Programs

Guest worker programs enable a country to recruit foreign workers for addressing labour shortages. However, these guest workers do not have the rights and privileges accorded by the country to those individuals who obtain permanent residence.

Guest worker programs are often temporary in nature. This means that foreign workers would work in the host country for a fixed span of time. Upon completion of their fixed tenure, these workers would then return to their native countries.

Traditionally, the Canadian government followed the guest worker-type model. Thus, they brought migrant workers to Canada for:

• Creating an economic benefit or,
• Addressing short-term labour shortages

Changes to the TFWP / Labour Market Opinion (LMO) Application Process

The authorities announced the first wave of changes to the LMO application process in the Economic Action Plan 2013. Under these changes:

• The ESDC suspended the Accelerated Labour Market Opinion process
  • This process enabled trusted employers to obtain LMOs on an expedited basis with minimal paperwork
• Then, the ESDC also got rid of the controversial rule that permitted employers to pay foreign workers up to 15 percent less wages than the prevailing average wage
  • This rule applied in situations where the employer could prove that they were paying the same wages to Canadian workers in the same role

The ESDC implemented the second series of LMO-related changes on July 31, 2013. These changes included:

• Introducing provisions that prescribed stringent advertising requirements for employers who needed LMO confirmations
  • Earlier, employers merely advertised their jobs on the National Job Bank and on another forum for a minimum duration of two weeks
  • Thereafter, they would file an LMO application
  • The current regulations require employers to advertise their jobs in at least three forums, including the National Job Bank
  • They would need to advertise these jobs for a four-week period
  • Only after the lapse of this four-week period, can employers submit an LMO application
  • The regulations also mandate that at least one of these advertisements must be national in scope
• Introducing a new $275 fee for each temporary foreign worker position for employers seeking to hire temporary foreign workers
• Mandating that employers would only list English and French as eligibility requirements for the purpose of LMO applications, except for jobs where foreign language skills were an essential part of the job profiles

The third series of changes to the TFWP occurred via a series of Ministerial Instructions. These instructions came into being on December 31, 2013. These changes:

• Authorised the ESDC to suspend an LMO during its validity period, before the authorities issued the corresponding work permit in situations where the ESDC:
  • Judged that an employer had obtained the LMO through misinformation or,
  • Believed that there were reasonable grounds for suspecting that the employer had not adhered to the TFWP
• Authorised the ESDC to revoke LMOs before or after the authorities issued the corresponding work permit in cases where the ESDC:
  • Judged that an employer had obtained the LMO through misinformation or,
  • Came into possession of new information that suggested that the employment of the foreign workers had a negative effect on the labour market opinion
• Authorised the ESDC to stipulate that all employers needed to retain all records concerning LMO applications for a period of six years
• Authorised the ESDC to:
  • Conduct warrantless site visits
  • Compel employers to provide the relevant documentation and,
  • Interview foreign workers and other employees at the employer’s workplace

On December 31, 2013, the ESDC also introduced a new and more comprehensive LMO application form. The new form requires employers to provide very detailed information of:

• Any potential outsourcing or offshoring arrangements and,
• The impact of these arrangements on the Canadian workforce

In addition, the ESDC also wanted employers to:

• Provide 18 attestations that would demonstrate the employer’s compliance with the TFWP
• Commit to reviewing the salaries of their foreign workers on an annual basis

These requirements aim to force employers to hire Canadian workers preferentially. They also aim at reducing the dependency on the guest worker class of employees.

Changes to the Canada Experience Class (CEC) Permanent Residence Stream

The CIC announced specific changes to the CEC on November 08, 2013. One of these was the introduction of the maximum cap of 12,000 new applications. Therefore, under the new regulations, the CIC can only process a maximum cap of 12,000 new applications for the permanent residence stream. This cap is applicable for the period from November 09, 2013 to October 31, 2014.

The CIC has also identified six NOC “B” professions and has listed them as being ineligible for participation under the CEC permanent residence stream. These six professions comprise:

• Cooks
• Food service supervisors
• Administrative officers
• Administrative assistants
• Accounting technicians and,
• Retail supervisors

In addition, the CIC has established sub-caps for each NOC “B” occupation. This means that with effect from 2014, the CIC would not accept more than 200 applications from any one NOC “B” profession.

Expression of Interest (EOI) System

In its Economic Action Plan 2012, the Government of Canada announced that it would implement an EOI system. This system would enable the CIC to identify immigrants, who have in-demand skills and experience.

Under the EOI submission process:

• Initially, foreign nationals would indicate their interest in obtaining Canadian permanent residence by submitting information about:
  • Their skills
  • Their education and,
  • Their work experience
• The officers would place all applications in a pool, where the system would rank each applicant against other candidates in the pool
• The officers would then, allow employers to access the application pool of candidates
• Thereafter, the employers would be able to screen and interview applicants who possess in-demand skill sets
• The CIC officers would thereafter, provide offers of permanent residence to candidates who have:
  • A job offer or,
  • High-demand skill sets

The CIC aims to process applications received via the EOI system in a period of six months or lesser. It also expects to implement the EOI system by the end of 2014 or early 2015.

Start-Up Visa (SUV) Program

The CIC launched the Start-Up Visa Program (SUV) Program formally on April 01, 2013. This SUV Program aims at attracting immigrant entrepreneurs to Canada. These immigrant entrepreneurs would:

• Establish innovative companies in Canada and,
• Generate employment opportunities for Canadians

It also committed to approving a maximum of up to 2,750 applications under this stream annually.

To qualify under this program, applicants would need to secure a commitment from:

• A designed business incubator confirming that it is accepting the applicant’s business into its incubator program
• A designated angel investor confirming that it is investing a minimum of at least $75,000 into the applicant’s business or,
• A designated venture capital fund confirming that it is investing at least $200,000 into the applicant’s business

Other criteria that SUV Program applicants would need to meet for qualification specify that the applicants:

• Possess demonstrable language skills in English and / or French
• Possess funds amounting to the equivalent of half the LICO amount necessary for supporting the applicant and their accompanying family members

Changes to the Federal Skilled Worker Program (FSWP)

On May 04, 2013, the CIC re-opened and amended the FSWP. Under the amended FSWP program, foreign nationals could qualify for permanent residence under one of three streams by:

• Gaining employment in one of 24 eligible occupations
• Having an arranged offer of employment or,
• Becoming eligible for applying under the PhD stream

The CIC has also established a new list of eligible occupations. This includes 11 professionals in science and engineering. It includes nine professions in health care too. Other occupations listed include:

• Land surveyors
• Computer programmers
• Industrial instrument technicians and,
• Inspectors in the domain of health and occupational safety

The CIC will now accept a maximum cap of up to 5,000 new applications under the eligible occupations list. This would be applicable from May 2013 to May 2014. In addition, the CIC has prescribed a sub-cap of 300 applications for each occupation. Under the rules prescribed within the revised FSWP, all applicants would need to continue scoring a minimum of at least 67 points on a 100-point grid.

Other Changes

The Elimination of the Immigrant Investor and Entrepreneur Program

The Immigrant Investor Program (IIP) enabled foreign nationals to obtain permanent residence. Similarly, the Entrepreneur program aimed at those foreign nationals, who wanted to establish and manage their own businesses in Canada. In July 2011, the CIC suspended these permanent residence streams. The Government terminated the two programs in Economic Action Plan 2014.

Changes to Age of Dependent Children for Immigration Purposes

On May 18, 2013, the CIC announced its intentions of changing the definition of the term “dependent child”. Under the changes proposed, the CIC would lower the age of a dependent child:

• FROM “Less than 22 years of age”
• TO “Less than 19 years of age”

The CIC has indicated that this change would be purely for immigration purposes. The CIC also plans to eliminate the exception given to full-time students currently.

The Parent and Grandparent (PGP) Sponsorship Program

The CIC closed the PGP sponsorship program in November 2011. On May 18, 2013, the CIC announced that it would:

• Re-open the PGP sponsorship program with effect from January 01, 2014 and,
• Amend the PGP sponsorship criteria as well by:
  • Raising the minimum necessary income for sponsorship to Low Income Cut-off plus 30 percent
  • Asking sponsors to submit tax documents proving that the sponsors have met the minimum necessary income for three successive years
  • Asking sponsors to agree to provide a sponsorship undertaking, which would be valid for 20 years
• Prescribing a maximum cap of 5,000 applications under the PGP sponsorship program for 2014

Conclusion

Over the past 12 months, the Government of Canada has implemented several major immigration changes. It appears that the Government of Canada is marking a policy shift away from the guest worker model, in which migrant workers come to Canada for temporary periods.

Instead, the Government of Canada seems to be heading for a model that encourages highly skilled workers to immigrate to Canada on a permanent basis. Thereafter, these highly skilled foreign workers could become a part of the mainstream of Canadian social and economic life. The latest amendments would help the Government of Canada seems to address the impending labour market shortages, by providing a permanent, stable and most importantly, a viable solution.

Source: Canada Immigration and Citizenship Bulletin