Key changes to Canada’s Foreign Worker Program

This article will provide an overview of the key changes to the Temporary Foreign Worker Program, which became effective April 1, 2011. The Temporary Foreign Worker Program has been an important source of labour supply to Canadian companies to meet their human resources needs. In fact, in a typical year, Canada admits more than 100,000 temporary foreign workers on work permits. Therefore, these changes will have a significant impact to the human resources planning and strategies employed in businesses.

The regulations establish stricter guidelines by which an offer of employment will be evaluated. Stemming from this, on every new application an officer will be able to evaluate whether the terms of employment offered to every foreign worker in the two years preceding an application have been met with respect to working conditions, wage and occupation. Furthermore, any changes to working conditions (such as location and hours), wage (salary increase or decrease) and occupation (promotion or lateral transfer) must be reported after the work permit is issued.

The following example will illustrate the impact of the changes. If an employer brings a temporary foreign worker to Canada to work at its Toronto office, and the work permit indicates the location as Toronto, a subsequent transfer of the employee to its office in Vancouver without first obtaining a work permit amendment from Citizenship & Immigration Canada (“CIC”) would breach the regulatory standard. If CIC becomes aware of this breach, then that foreign worker’s application for a future work permit extension could be refused. Furthermore, that employer’s application for work permits for all foreign workers could be refused for two years – at all its offices across Canada.

The most significant change to the Temporary Foreign Worker Program to employers is the imposition of a two-year prohibition from hiring temporary foreign workers for employers who have been found to be in breach of the regulatory standard. Furthermore, these employers will be put on a public list of ineligible employers published on CIC’s external website.

The changes to the Temporary Foreign Worker Program also impact the foreign worker. For the first time a cumulative maximum total of four years is being imposed for the issuance of work permits. If the foreign worker does not have permanent resident status by the end of that four year period, or approval in principle / selection decision for permanent residence, then the foreign worker must leave Canada. Furthermore, that foreign worker is ineligible for a Canadian work permit for four years. The rule takes effect commencing April 1, 2011, thus the earliest date that a foreign national could reach the four-year cumulative cap is April 1, 2015. The accumulated time worked in Canada will be calculated based on the duration period of valid work permits issued to the foreign worker. If he/she has had gaps in employment during the validity period of a work permit, then he/she must provide proof (such as passport entry and exit stamps, tickets and boarding passes) for those breaks to be considered in the calculation of cumulative duration.

There are exceptions to the four-year cap on work permits. In particular, the cap does not apply to work permits issued pursuant to the following categories: international agreements such as the NAFTA, intra-company transfer, significant benefit to Canada, spousal work permits, Labour Market Opinion exemptions, and Labour Market Opinions for occupations coded as managerial (NOC O) and highly skilled (NOC A). However, the majority of foreign workers will be impacted.

It therefore becomes especially important for companies to have a solid plan for transitioning foreign workers to permanent resident status if in fact the decision has been made to employ them indefinitely.