on record JULY 2014 BUSINESS IMMIGRATION

Transcription

1 on record JULY 2014 BUSINESS IMMIGRATION Recent Changes to the Temporary Foreign Worker Program Criminal Inadmissibility Impaired Driving Charges Express Entry: The New Permanent Residency Plan Licensing Restrictions on Foreign Worker Recruitment Time Changes for Labour Market Opinions

2 2400, 525-8th Avenue SW Calgary, AB T2P 1G1 Phone: Fax: On Record Contents: See other BD&P articles under Publications on our web site 1 Recent Changes to the Temporary Foreign Worker Program 2 Criminal Inadmissibility Impaired Driving Charges 4 Express Entry: The New Permanent Residency Plan 5 Licensing Restrictions on Foreign Worker Recruitment 6 Time Changes for Labour Market Opinions BUSINESS IMMIGRATION, EDITOR-IN-CHIEF Rita R. Tripathy rrt@bdplaw.com BUSINESS IMMIGRATION, MANAGING EDITOR Rhonda G. Wishart rwishart@bdplaw.com GENERAL NOTICE On Record is published by BD&P to provide our clients with timely information as a value-added service. The articles contained here should not be considered as legal advice due to their general nature. Please contact the authors, or other members of our Business Immigration team directly for more detailed information or specific professional advice. Business Immigration Professionals Lawyers Rita R. Tripathy... rrt@bdplaw.com Jonathan Selnes... jselnes@bdplaw.com Paralegal Clara Liu... cliu@bdplaw.com

3 IMMIGRATION PAGE 1 Recent Changes to the Temporary Foreign Worker Program By Rita R. Tripathy Major changes have recently been announced for Canada s Temporary Foreign Worker Program ( TFWP ). Background In terms of background, a moratorium was announced in April 2014 on the access of the Canadian food service sector to the Temporary Foreign Worker Program. The reason for the moratorium was to consider changes to the TFWP to ensure that Canadian employees looked first to the domestic labour force to fill open positions. The changes were at least partially in response to frequent complaints by Canadian employees of perceived abuses in the TFWP by larger food industry companies. During the moratorium, now lifted, Employment and Social Development Canada suspended the issuance of any Labor Market Opinions related to this sector and also suspended any unused positions of Work Permit Applications that had not yet been approved. The Key Changes The former TFWP program had now been divided into two distinct programs: the TFWP and the International Mobility Programs ( IMP ). The Temporary Foreign Worker Program The TFWP has been narrowed. It will now only include foreign workers who enter Canada at the request of employers, after employers have obtained approval through a new Labour Market Impact Assessment ( LMIA ) which has replaced the former Labour Market Opinion. The changes to the LMIA include: More rigorous screening for employers seeking to hire foreign workers. For example there is a new requirement that employers, in their applications for temporary foreign workers, provide information on the number of Canadians that applied for a particular job, the number of Canadians who were interviewed for the job as well as an explanation as to why a Canadian applicant was not hired. Employers must now also attest that they are aware of the rule that Canadians cannot be laid-off or have their hours reduced at a worksite that employs foreign workers. Transition plans will be required to be submitted when employers seek to hire high wage temporary foreign workers. The officers will require employers to demonstrate, in these transition plans, how they will increase their efforts to hire Canadians, including offering higher wages, investing in training Canadian employees and executing more active recruitment efforts within Canada. Suggestions made by the federal government in relation to such heightened recruitment efforts included the example of a restaurant which might need an ethnic cook the suggestion was for the employer to consider lobbying the local cooking schools to offer courses for that particular ethnic food. Another suggestion was looking to the underemployed populations in the country to consider how certain groups of people could be better employed. The National Occupation Classification will be replaced with wage levels. Employers with 10 or more employees will be subject to a cap of 10% of low wage employees being temporary workers, to be phased in over the next few years.

4 IMMIGRATION PAGE 2 Certainly the new rules are in their early stages; however, many employers are already critical of the changes, believing the end result will be business closures as a result of difficulty in finding employees in Canada and/or having to increase wages to an unsustainable level. Applications for lowest wage, lowest skill, entry level food service occupations and retail trade will be barred in areas of the country with high unemployment (6% or higher). LMIA for low wage temporary foreign workers will be reduced to a standard duration from 2 years to 1 year, although extensions can be applied for it will be in one year increments. LMIA application fees will be increased from $275 per worker to $1,000 per worker. The processing time for LMIA will be dramatically shortened for in-demand occupations such as the highly skilled occupations and highly paid occupations (top 10%). A very welcome change will be the 10 day predicted approval period for short duration applications of employees needed for 120 days or less. There will be stronger enforcements and higher penalties imposed. For example, the expectation is that there will be a 25% inspection rate. There will be an expanded ability to publicly blacklist employers who have been suspended, are under investigation or have had an LMIA revoked. An employer can now be subject to fines as high as $100,000 for abuses of the TFWP. In the past the black list for employers was rarely used. The International Mobility Program The second program is the IMP (which includes sections previously included in the TFWP). The IMP will apply to the foreign nationals whoare not required to obtain an LMIA to be able to work in Canada. These include the same streams that were previously in existence i.e.foreign workers entering Canada through Intra-company Transfers, the North American Free Trade Agreement ( NAFTA ) and the General Agreement on Trade in Services ( GATS ). Essentially, the guidelines provide that a much more rigorous definition of specialized knowledge will be imposed. There are also new mandatory wage requirements to be satisfied. Under GATS, an ICT Specialized Knowledge worker must possess knowledge at an advanced level of expertise and proprietary knowledge of the company s product, service, research, equipment, techniques or management. The expanded guidelines reinforce the fact that certain ICT applicants must demonstrate that they possess a high degree of both proprietary knowledge and advanced expertise. Proprietary knowledge alone, or advanced expertise alone, does not qualify applicants under the ICT Specialized Knowledge exemption. Proprietary knowledge is company-specific expertise related to a company s product or services. To qualify, an applicant must demonstrate either uncommon knowledge of the company s products or services relevant to the company s activity international markets or advanced expertise in the company s operations. Advanced expertise requires specialized knowledge gained through significant experience with the company within the previous five years and used by the applicant to contribute significantly to the employer s productivity. Applicants must demonstrate that they are key personnel rather than simply highly skilled. In assessing Propriety Knowledge and Advanced Expertise, officers are instructed to consider: whether the applicant s abilities, knowledge or expertise are unique and uncommon from those generally found in a particular industry; the availability in the Canadian labour market of equivalent knowledge or expertise, and the ease with which the knowledge or expertise could be transferred to another individual; and the knowledge or expertise is critical to the business of the Canadian employer and a significant disruption of business would occur without the applicant s expertise. In addition, if a worker possesses the high standard of specialized knowledge that is uncommon in a particular industry, it is expected that the worker would typically receive an above average salary. In the past this has not been a category that has been heavily scrutinized and employers may not have always provided the full information required. The new requirements will require a renewed focus by employers on the required substantiation. Concluding Thoughts These are definitely challenging times for employers who rely on foreign workers as is the case with many Alberta companies. Certainly the new rules are in their early stages; however, many employers are already critical of the changes, believing the end result will be business closures as a result of difficulty in finding employees in Canada and/or having to increase wages to an unsustainable level. Business leaders anticipate that consumers will also suffer because of the price increases that will be required by businesses to meet the higher wage requirements. The Alberta perspective is that the new rules will significantly affect a province that relies heavily on the TFWP.

5 IMMIGRATION PAGE 3 Criminal Inadmissibility Impaired Driving Charges By Rita R. Tripathy and T. Jason Hennig, Student-at-Law Introduction Foreign nationals seeking entry into Canada may be inadmissible because of a criminal conviction/record in their home jurisdiction. Charges, such as impaired driving, are relatively common and are an issue that immigration officials, officers and lawyers deal with on a regular basis. This article explores criminal inadmissibility by examining the consequences and potential remedies for a foreign national who has an impaired driving conviction (or its equivalent home jurisdiction offence). Ordinary or Serious Criminality The Immigration and Refugee Protection Act (the IRPA ) 1 sets out classes of individuals who will not be granted admission into Canada. One of the most common reasons for refusing entry under the IRPA is that the person applying for entry (the applicant ) has a criminal record. Criminal inadmissibility is broken down into three separate categories: serious criminality, ordinary criminality and organized criminality (the latter not addressed in this article).

6 IMMIGRATION PAGE 4 The IRPA distinguishes between serious criminality and ordinary criminality on the basis of the potential sentence for the offence in question. If an applicant has been convicted outside of Canada for an offence which, if convicted in Canada, would be punishable by a maximum term of imprisonment of at least 10 years, the applicant will fall within the serious criminality provision. Offences with a shorter maximum term of imprisonment fall within the ordinary criminality provision. Accordingly, the equivalent offence in Canada must be found in order to determine the applicable sentence and the potential criminal inadmissibility of the applicant. Finding an equivalent offence may be difficult where the offence is unique or uncommon but in the case of impaired driving the equivalent section in the Canadian Criminal Code 2 (the Criminal Code ) is easily found. In Canada, a charge of impaired driving is made pursuant to Section 253 of the Criminal Code, Operation while impaired 3 ( OWI ). An OWI charge, if prosecuted by way of indictment, is punishable by a maximum 5 year term of imprisonment and would be considered an offence of ordinary criminality. Indictable Offence However, one must go one step further in the analysis of whether an OWI conviction renders a foreign national inadmissible. The IRPA makes a distinction between offences and indictable offences and classifies all hybrid offences as indictable offences. Since the Canadian Criminal Code classifies an OWI offence as a hybrid offence, the applicant with an equivalent OWI conviction would be inadmissible. Remedies to Circumvent Inadmissibility The next question would be whether there are any remedies available to circumvent this inadmissibility. The remedies available depend on the context of the conviction, specifically the timing, and whether the applicant has any subsequent criminal charges on their record. There are four options to overcome the criminal inadmissibility issue: Deemed Rehabilitation The IRPA Regulations (the Regulations ) 4 will, in some cases, deem an applicant with a foreign criminal conviction to be rehabilitated and in doing so make the applicant admissible. The Regulations list the requirements an applicant must satisfy to be eligible for deemed rehabilitation. the equivalent Canadian offence is punishable by a maximum term of imprisonment of less than ten years; ten years must have elapsed since the day after the completion of the sentence imposed for the OWI; the applicant cannot have been convicted in Canada of an indictable offence or outside Canada of another offence equivalent to an indictable offence (that is in addition to the OWI); the applicant cannot have been convicted in Canada of any summary conviction offence within the last 10 years or of more than one summary conviction offence before the last 10 years (excluding offences under the Contraventions Act 5 and Youth Criminal Justice Act 6 ); the applicant cannot have been convicted outside Canada of any offence that would, if committed in Canada, constitute an offence under an Act of Parliament within the last 10 years (excluding offences under the Contraventions Act and Youth Criminal Justice Act); and the applicant cannot have been convicted outside of Canada, before the last 10 years, of more than one offence that, if committed in Canada, would constitute a summary conviction offence. The duration of time that has passed since the conviction and whether there are any further criminal actions or convictions will determine whether this option is open to the applicant. Application for Rehabilitation If the applicant is not eligible for deemed rehabilitation e.g. ten years have not passed since the completion of the sentence, the applicant may be able to apply for rehabilitation if 5 years have passed since the completion of the imposed sentence. Similar to the deemed rehabilitation requirements, an applicant cannot have been convicted of any subsequent offences other than the OWI. Temporary Resident Permit If the applicant is not eligible for either avenue of rehabilitation he/she may apply for a Temporary Resident Permit ( TRP ). As indicated in its title, a TRP is only a temporary solution and if granted, will generally only permit a onetime entry. TRPs allow the immigration authorities to permit otherwise inadmissible persons entry into Canada. The decision to grant a TRP is highly discretionary such that predicting the result of an application is difficult. Although the immigration officers scrutinize these applications, especially when they deal with criminally inadmissible persons, the application can be sent to a visa office prior to the date of entry to avoid issues at the point of entry. Further, as of March 1, 2012, Canadian immigration may waive the application fee for a TRP if the applicant meets two requirements: having served no jail time and not having committed any other act that would prevent the applicant from entering into Canada. 7 Record Suspension A fourth option is available in some circumstances in that the applicant may apply for a record suspension in his/her home jurisdiction to get a criminal record expunged. The record expungement must be equivalent to a Canadian record suspension granted pursuant to the Criminal Records Act. 8 The process for a record suspension is beyond the scope of this article, but it is an option that may exist. Conclusion Although the applicant is initially barred from entering Canada due to an operation while impaired (or equivalent) conviction, there are a variety of options that may enable the applicant to overcome the criminal inadmissibility provisions in the IRPA. The options available to an applicant will be determined by the timing of the conviction as well as the presence of any other criminal actions and/or convictions. Footnotes 1 Immigration and Refugee Protection Act, SC 2001, c 27, [IRPA]. 2 RSC, 1985, c.c RSC, 1985, c.c-46, s SOR/ , s 18(2). 5 Contraventions Act, SC 1992, c Youth Criminal Justice Act, SC 2002, c 1. 7 Government of Canada Immigration website, What is the new policy on criminal inadmissibility August 16, 2013, < asp?q=143&t=8>. 8 RSC 1985, c C-47.

7 IMMIGRATION PAGE 5 EXPRESS ENTRY The New Permanent Residency Plan By Rita R. Tripathy Commencing January 1, 2015 the Express Entry active recruitment model for economic immigration will be introduced. The federal government is promoting this system as one that will enable greater flexibility and responsiveness in addressing regional labor shortages and filling available jobs in situations where there are no available Canadian workers. Essentially, with Express Entry, the Government of Canada will be selecting the best candidates, the ones perceived to by most likely to achieve success in Canada as opposed to maintaining a system operating on a first come first served basis. Citizen and Immigration Canada ( CIC ) believes that this new system will better coordinate application volume. The Express Entry candidates who receive a valid job offer or nomination under the Alberta Immigrant Nominee Program ( AINP ) will be quickly invited to apply for permanent residence. This Express Entry system is intended for permanent residency as opposed to the Temporary Foreign Worker Program which is designed to address temporary labor and skill shortages. The first step in the Express Entry system is to submit an express entry application to CIC(?) online. Assuming that the candidate meets the eligibility requirements in one of the existing federal programs (specifically the Federal Skilled Worker Program ( FSWP ), Canadian Experience Class ( CEC ), the Federal Skilled Trades Program ( FSTP ) or the Provincial Nominee Program ( PNP )), the candidate will be entered into the express entry pool and be assigned a point score. Only the highest ranked candidates within the pool will be invited to apply for permanent residence. If the candidate receives an invitation to apply for permanent residence, the processing will occur in six months. To prepare for the launch of the Express Entry system, CIC has announced that there will be new caps for the FSWP, the FSTP and the CEC, the new caps having started as of May 1, For example, the FSTP cap will be increased by 1,000 applications. These latest caps will represent the last applications accepted under this current system before the launch of the Express Entry system. Express Entry will operate in a two-step process. In the first step, prospective immigrants will indicate their interest in coming to Canada by providing information about their skills, work experience and other biographical information. Express Entry will be a mandatory first step in all of the FSWP, the FSTP and the CEC. In addition, provinces and territories will have the option to use Express Entry to identify additional provincial nominees for the PNPs over and above their provincial nomination allocations to an overall and by-jurisdiction limit. Individuals who meet certain eligibility criteria will have an expression of interest placed in a pool and be ranked against others already in the pool. In terms of the second step of the process, CIC will invite the best candidates, including those with in-demand skills or with job offers, to submit an electronic application for permanent residence. Would-be applicants to the FSWP, FSTP, CEC and sub-set of PNPs, will not be allowed to make an application for permanent residence unless invited to apply. Critics of the Express Entry program identify concerns about a program that has no objective criteria and that is monitored only by CIC. Further expressed concerns are that all applicants are to pay a nonreturnable processing fee, there is no limit on the number of applicants and only a portion of the applicants will be approved. The Federal Government anticipates that the Express Entry system will be a major positive step in both attracting the required skilled workers to Canada, and doing so on a more timely basis.

8 IMMIGRATION PAGE 6 Licensing Restrictions on Foreign Worker Recruitment By Rita Tripathy and Paul Mereau, Student-at-Law Legislated Restrictions Recently several jurisdictions in Canada, namely Alberta, Saskatchewan, Manitoba, and Nova Scotia, have introduced legislation requiring employment agencies to obtain foreign worker recruitment licenses in order to recruit foreign workers. In both Alberta and Saskatchewan, prospective foreign worker recruiters are required to apply for a license and post a security bond, in order to receive a foreign worker recruiter license. 1 There is no restriction, aside from criminal background checks, on who can obtain a license, as long as a prospective licensee meets the requirements of the licensing regime. The foreign worker recruitment licensing regimes in Nova Scotia and Manitoba however, require that foreign worker recruiters are either members in good standing of a provincial Law Society or a member of the Immigration Consultants of Canada Regulatory Council. 2 If a prospective recruiter does not have either of those designations, the recruiter will not able obtain the license required to recruit foreign workers in those provinces. Nova Scotia In Nova Scotia, there is an exemption to the licensing requirements for certain employment positions. Section 2.14(d) of the General Labour Standards Regulations of Nova Scotia exempts employers from the requirement to hire a licensed recruiter with respect to National Occupation Classification O (Management) and A Level (University Education) employees. 3 Accordingly, it is possible for all recruitment firms, regardless of licensing, to recruit foreign workers for Nova Scotia employers if the employees have a National Occupational Classification of O or A. Manitoba In Manitoba, there is no such exemption. The Manitoba Worker Recruitment and Protection Act and corresponding Regulations do not include an exemption for the recruitment of National Occupation Classification O and A level employees. 4 Accordingly, a recruiter that is neither a member of the Law Society of the province nor a licensed member of the Immigration Consultants of Canada Regulator Council is prohibited from recruiting foreign workers. Implications for Alberta Based Foreign Worker Recruiters In order for an Alberta based recruiter to recruit foreign workers for employers in provinces outside of Alberta, the recruiter will need to ensure that he/she is licensed to carry on business and recruit in those jurisdictions and, in particular, ensure he/she is properly qualified and licensed to recruit foreign workers in that province. Otherwise, the recruiter will need to take steps ensure that he/she complies with the applicable legislative regime. In some instances, this may include engaging an individual licensed to recruit foreign workers in that jurisdiction. Footnotes 1 Employment Agency Business Licensing Regulation 45/2012 (AB), Foreign Worker Recruitment and Immigration Services Act, SS 2013 c F-18.1 (SK). 2 Labour Standards Code, RSNS 1989, c 246 (SK), Worker Recruitment and Protection Act, CCSM c W197 & Regulations, RM 21/2009 (MB). 3 General Labour Standards Code Regulations, NS Reg 298/90. 4 Supra note 2 In both Alberta and Saskatchewan, prospective foreign worker recruiters are required to apply for a license and post a security bond, in order to receive a foreign worker recruiter license.

9 IMMIGRATION PAGE 7 Time Changes for Labour Market Opinions By Rita R. Tripathy Employers need to carefully plan ahead if a Labour Market Opinion ( LMO ) is needed for a new employee. As of July 31, 2013, the advertising period had doubled from that of 2 weeks. The job advertisement must now be: posted for a minimum of 4 weeks starting from the first day the advertisement is published and accessible to the general public; and remain posted to actively seek qualified Canadians and permanent residents until the date a labour market opinion is issued. The actual processing time for a Labour Market Opinion application has also increased. In the past, one could count on 8 to 12 weeks for processing. Currently, Service Canada has recommended allowing for 12 to 14 weeks processing time. This increase is attributable to increased volumes and, more importantly, to the increased vigilance in ensuring regulatory requirements are met. In the past, applicants have been successful in making a case to expedite applications for highly skilled positions or urgent applications. Service Canada has now taken an official position that it is unable to accommodate requests to fast track applications. The first step in determining appropriate timing for filling an employee s position with a foreign worker is to determine whether the employee falls under an LMO exemption. If the prospective employee does in fact require an LMO, a prudent employer should plan on 4 to 5 months in total from the time a job offer is extended to the time the work permit is required.

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