Minister Kenney’s August 18 2010 Press Release: changes to temporary foreign workers, including live-in caregivers – An Analysis

By Author: Admin | August 24, 2010

I previously blogged about proposed changes to Canada’s temporary foreign worker program Here.  As can be seen in the August 18 2010 News Release, those proposed changes are now law.

A significant change from the previous  law relates to more specific guidelines for a Service Canada officer when assessing the genuineness of a job offer.   The specific criteria for assessing genuineness that is now set out in subsection 200(5) of the proposed amendments as follows:

  • whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
  • whether the offer is consistent with the reasonable employment needs of the employer;
  • whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
  • the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

The new regulations are generally helpful by being more specific than before.  Under the previous law,  Service Canada did  not have clear or detailed guidance on the issue of genuineness.  The consequence was that visa officers overseas would conduct their own assessment of whether the job being offered was genuine – with often unfair results.  Unfair results included failing to contact an employer to confirm details about the place of work, or the job to be performed.  It is hoped that visa officers will now be satisfied with leaving this task to Service Canada officers who work in Canada, and hence are better placed to assess the genuineness (or ‘bona fides’ in lawyer jargon) of a job offer.

One cause for concern is the issue of the past compliance of an employer with applicable federal or provincial laws.  On the face of it, compliance with the law should be a welcomed and obvious criterion to use when figuring out if a job offer is genuine.  However, employers would consequently have to tread very carefully when seeking out a foreign worker for temporary employment, as some mistakes may ultimately end of as evidence of a lack of past compliance.  This would be a good opportunity to emphasize the usefulness of a representative like a Canadian Immigration Lawyer when considering a foreign worker.

A registry of these non-compliant employers will be  effect (on immigration Canada’s website).  Thus, the entire reputation of a business can be in jeopardy if a labour market opinion application is bungled.  Picture someone googling “ABC company” and finding one hit for said company on immigration Canada’s website showing non compliance with the law.

Employers can also end up on this public blacklist of sorts for providing “significantly different” wages, working conditions or job duties.  I’m not too worried about this provision; given that the Federal Court would be governed by what is ‘reasonable’,  I would interpret the term ‘significantly’ to be one that would shield employers from spurious findings or frivolous accusations.  The downside is that the phrase “significantly different” would likely have to be litigated before some consensus on its meaning is obtained.

It is also logical for the government to impose a four year cap on the availability of these work permits.  Specifically, it is proposed that a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada would be required, with exemptions under certain circumstances.  The exceptions appear to be people whose work permit was issued to on the basis of conferring a ‘significant benefit’ (Regulation 205 (a)), and a permit issued under an international agreements (Reg. 204 a)) and seasonal agricultural workers.  All others, such as low skilled workers and those under LMOs, or other Reg. 205 workers (such as reciprocal employment, or spouses of workers and students) would be subject to this four year cap.  I understand the cap applying to low skilled workers, but can see that spouses of work permit holders and spouses of study permit holders (who obtain a work permit) may get caught under this provision with no corresponding enforcement benefit to Canada such as the protection of foreign workers or maintaining of Canadian wages.

Minister Kenney’s August 18 2010 Press Release: changes to temporary foreign workers, including live-in caregivers – An Analysis

I previously blogged about proposed changes to Canada’s temporary foreign worker program Here. As can be seen in the August 18 2010 News Release, those proposed changes are now law.

A significant change from the previous law relates to more specific guidelines for a Service Canada officer when assessing the genuineness of a job offer. The specific criteria for assessing genuineness that is now set out in subsection 200(5) of the proposed amendments as follows:

§ whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;

§ whether the offer is consistent with the reasonable employment needs of the employer;

§ whether the terms of the offer are terms that the employer is reasonably able to fulfill; and

§ the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

The new regulations are generally helpful by being more specific than before. Under the previous law, Service Canada did not have clear or detailed guidance on the issue of genuineness. The consequence was that visa officers overseas would conduct their own assessment of whether the job being offered was genuine – with often unfair results. Unfair results included failing to contact an employer to confirm details about the place of work, or the job to be performed. It is hoped that visa officers will now be satisfied with leaving this task to Service Canada officers who work in Canada, and hence are better placed to assess the genuineness (or ‘bona fides’ in lawyer jargon) of a job offer.

One cause for concern is the issue of the past compliance of an employer with applicable federal or provincial laws. On the face of it, compliance with the law should be a welcomed and obvious criterion to use when figuring out if a job offer is genuine. However, employers would consequently have to tread very carefully when seeking out a foreign worker for temporary employment, as some mistakes may ultimately end of as evidence of a lack of past compliance. This would be a good opportunity to emphasize the usefulness of a representative like a Canadian Immigration Lawyer when considering a foreign worker.

A registry of these non-compliant employers will be effect (on immigration Canada’s website). Thus, the entire reputation of a business can be in jeopardy if a labour market opinion application is bungled. Picture someone googling “ABC company” and finding one hit for said company on immigration Canada’s website showing non compliance with the law.

Employers can also end up on this public blacklist of sorts for providing “significantly different” wages, working conditions or job duties. I’m not too worried about this provision; given that the Federal Court would be governed by what is ‘reasonable’, I would interpret the term ‘significantly’ to be one that would shield employers from spurious findings or frivolous accusations. The downside is that the phrase “significantly different” would likely have to be litigated before some consensus on its meaning is obtained.

It is also logical for the government to impose a four year cap on the availability of these work permits. Specifically, it is proposed that a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada would be required, with exemptions under certain circumstances. The exceptions appear to be people whose work permit was issued to on the basis of conferring a ‘significant benefit’ (Regulation 205 (a)), and a permit issued under an international agreements (Reg. 204 a)) and seasonal agricultural workers. All others, such as low skilled workers and those under LMOs, or other Reg. 205 workers (such as reciprocal employment, or spouses of workers and students) would be subject to this four year cap. I understand the cap applying to low skilled workers, but can see that spouses of work permit holders and spouses of study permit holders (who obtain a work permit) may get caught under this provision with no corresponding enforcement benefit to Canada such as the protection of foreign workers or maintaining of Canadian wages.

.

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