New Rules for Temporary Foreign Workers as of April 2011

Effective April 1, 2011, employers who hire foreign workers began facing increased scrutiny of their business operations. The Government of Canada has introduced more stringent criteria for allowing Canadian employers and foreign workers to participate in Canada’s temporary foreign worker programs.

Under the new rules, three government departments—Human Resources and Skills Development Canada, Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency—can be involved in assessing whether a Canadian employer can hire a temporary foreign worker.

These departments have concurrent powers to assess whether Canadian employers have made a genuine offer of employment to a foreign worker that is consistent with Canadian employment standards. And, for employers who have previously hired foreign workers, these departments now have the power to retroactively assess—for a period of two years—an employer’s past compliance with respect to wages, working conditions and occupations to ensure they are substantially the same as the terms set out in their initial job offers. Without adequate justification for departing from the original job offers, employers will be barred from hiring temporary foreign workers for two years and will have their name displayed on CIC’s web site.

Foreign workers are ineligible to enter into an employment agreement or extend an existing one if their employer has been found non-compliant. The onus is now on foreign workers to ensure that their Canadian employers are eligible to hire them.

As of April 1, 2011, many foreign workers will be authorized to remain in Canada for a cumulative period of only four years. Those affected by this four-year limit are foreign workers in the Skill Level B, C and D occupations—as ranked by the National Occupational Classification (NOC) system.

Skill Level B occupations usually require a college education or apprenticeship training. Skill Level C occupations usually require secondary school and/or occupation-specific training. For Skill Level D occupations, on-the-job training is usually provided.

Consult the National Occupation Classification Matrix to determine if an occupation is subject to the four-year limit.

Skill Level B, C and D workers who have completed four years of work in Canada are ineligible for another work permit until an additional four years has elapsed.

But, it is important to know that many workers may be exempted from this four-year limit. They include:

• Workers in managerial (NOC O) and professional (NOC A) occupations
• Workers whose presence offer significant benefits to Canada such as intra-company transferees and emergency service providers, regardless of their occupational NOC code
• Workers working under international free trade agreements such as North American Free Trade Agreement (NAFTA)
• Permanent Resident Applicants who have applied for and received a positive selection decision, regardless of their occupational NOC code
• Individual not requiring a work permit to work in Canada
• Foreign students who work while authorized to study full-time in Canada

It is more critical than ever for Canadian employers to know how the new rules affect them and their ability to hire foreign workers. For employers and employees alike, getting advice from skilled Canadian immigration practitioners is key to managing these changes. Contact Capelle Kane and let them help you handle Canada’s new work permit rules with ease and confidence.