Immigration Law Seminar

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1 Immigration Law Seminar New Regulations Effecting Employers of Temporary Foreign Workers June 22, 2011

2 1. Genuiness Is the job offer "Genuine"?

3 Factors to consider: the job offer is made by an employer who is "actively engaged" in the business;

4 the job offer is consistent with the reasonable employment needs of the employer; the employer is reasonably able to fulfill the terms of the job offer; and

5 the employer, or their authorized recruiter, has shown past compliance with Federal/Provincial/territorial laws that regulate employment or recruitment in the province where the foreign national ("FN") will be working.

6 2. Substantial the Same ("STS") This is an assessment of whether the employer has provided to their foreign workers that they have employed, wages, working conditions and employment that was substantially the same as those items set out in the employer's offer of employment. This assessment covers the two year period of time prior to the receipt of the LMO application or work permit request.

7 Non-Compliance Justification Factors: A change in Federal or Provincial law or a change to the Collectively Agreement; Changes that were made in response to a dramatic change in economic conditions and any change in terms and conditions must not have been directed disproportionately at foreign workers;

8 Goodfaith employer error, provided that the employer has made sufficient efforts to provide compensation for any resulting disadvantage that the foreign worker encountered; Administrative accounting error by the employer provided that the employer has provided compensation for the error; and

9 Circumstances similar to those set out above.

10 3. Cumulative Duration This provision establishes a maximum period of employment of four years in Canada for certain Temporary Foreign Workers.

11 Exemptions: foreign national and their spouses who are seeking to work in managerial (NOC O) and professional (NOC A) occupations; and occupations which fall under international agreements such as professionals and intra-company transferees under NAFTA, GATS Professionals, and traders and investors.

12 Also exempt are: Canadian interests. This include GATS intra-company transfers, emergency repairs, entrepreneurs, youth exchange programs and other items to be designated by the Minister. This category also includes charitable or religious workers;

13 Self support. This includes refugee claimants and foreign nationals under unenforceable removal officers;

14 Permanent residence applicants in Canada. This includes the live-in care giver class, spouse and common-law partners of Canadian citizens, protected persons, Section A(25) exemptions and all family members; and

15 Humanitarian reasons. This includes destitute students and holders of temporary resident permits which have a minimum validity of six (6) months.

16 CANADIAN TAX ISSUES RE: TEMPORARY FOREIGN WORKERS J. Scott Bodie Bennett Jones LLP June 22, 2011

17 Will a Temporary Foreign Worker be Subject to Canadian Tax? If the worker is a resident of Canada, the worker will be subject to tax on world wide income. Unless treaty relief is available. 2

18 Residency Residency for income tax purposes is not dependant on immigration status. Rather it is based on the location of the workers Primary Residential ties. Secondary Residential ties. Additionally, worker will be deemed to be a resident if physically in Canada for more than 183 days in a taxation year. Even if the worker is a Canadian resident under Canadian law, the worker may be deemed to be a non-resident under "tie breaker rules" of an applicable tax treaty. 3

19 Taxation of Non-Resident Worker Only taxable on income earned from employment in Canada. If duties are performed inside and outside of Canada, salary must be allocated on a per diem basis between duties performed in Canada and duties performed in the other jurisdiction. 4

20 Relief Under Canada US Tax Treaty US Resident performing services in Canada will be exempt from Canadian tax if: Canadian source income does not exceed $10,000 in a calendar year; or The worker is not present in Canada for more than 183 days during any 12 month period and his remuneration is not paid by or on behalf of a person resident in Canada. 5

21 Compliance Regardless of whether or not a treaty applies, the payor, whether Canadian or not, must withhold on employment income allocated to Canada. Unless a waiver is obtained. Hefty penalties for non-compliance. 6

22 EI and CPP Not subject to treat relief. But there may be relief for CPP available under a Social Security Totalization Agreement. Canada US Social Security Agreement provides that a US employee transferred from the US will be exempt if expected to be in Canada for less than 60 months. 7

23 Directors Non-resident directors coming to Canada to attend meetings are subject to general withholding tax requirements. Relief from CPP payments may be available. Relief from EI payments may be available. 8

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