2. IMMIGRATION UPDATE
Presented to:
Franchisees
Evelyn L. Ackah, Managing Lawyer
June 27, 2012

3. Immigration Update
• International recruitment becoming more common
• Canadian economy requires more skilled workers
• HR the first to know about potential immigration needs
• How to work successfully/efficiently with external
immigration law providers
3

4. Part I
TEMPORARY WORK PERMITS
4

5. Canadian Work Permits
• The temporary foreign worker program - governed by web
of statutes, regulations, policies and programs
• Significant discretion of immigration /border officers leads
to inconsistencies
• With security and economic concerns, entry to Canada has
also been more difficult
• The new normal is “constant change”
• Employers must be proactive – not reactive
5

6. Canadian Work Permits
• Assessment of Type of Work Permit:
a) Is a work permit required? (The answer is almost always
"yes" if the person is being recruited to work in Canada)
b) If yes, is there an applicable LMO exempt work permit
category under the IRPA, a treaty (e.g. NAFTA, GATS), or a
special program?
c) If not, a LMO (Labour Market Opinion) must first be
obtained from HRSDC (Service Canada)
6

7. Immigration and Refugee Protection Act (IRPA)
• Work defined as: “an activity for which
wages are paid or commission is earned, or
that is in direct competition with the activities
of Canadian citizens or permanent residents
in the Canadian labour market”
• Under Canadian immigration law, foreign
nationals are prohibited from engaging in
work or assuming employment without first
obtaining a work permit (there are limited
exceptions to this rule)
7

8. Using NAFTA – LMO Exemption
• The preferred tool to facilitate cross-border
movement between Canada and the U.S.
• Used for temporary entry - not permanent
• Must be a U.S. or Mexican citizen
• Three main categories:
1) business visitors
2) professionals
3) intra-company transferees
8

9. NAFTA: Business Visitors
• Intended for short-term entry –
meetings, training, sales activity
• Should ensure foreign nationals always have
business visitor letter when crossing border
• Remuneration must be paid from outside
Canada
• Cannot be engaged in “work” activity
• Must ensure foreign national is prepared before
attending at port of entry
9

10. NAFTA: Professionals
• Renewable indefinitely (can apply for permits up to 3 years
at a time)
• Must meet educational or experience criteria
• Must be exercising the skills of the profession
• Must have an offer or contract
• NAFTA lists 66+ professions including Engineers,
Geophysicists, Computer Systems Analyst, Scientific
Technician - “Manager” or “Director” are not eligible
positions
10

11. NAFTA Intra-Company Transferees
• For employees at “executive” or “managerial” level, or
those who have “specialized knowledge”
• Must have worked 12 continuous months in preceding 3
years for the foreign related entity
• Must prove proper corporate affiliation of entities
• Time caps: Up to 5 years for specialized knowledge
workers and 7 years for managers
• Non-NAFTA Intra-Company Transfer category for those
who are not American or Mexican
11

12. Part II
Labour Market Opinions
12

13. The New TFW Regulations
• “New” Immigration regulations became effective
as of April 1, 2011
• Changes focus on “compliance” –
strengthening protection for FWs and limiting
the duration of temporary employment in
Canada
• Minimize the potential for FW exploitation and
implementing stricter employer monitoring
mechanisms
13

14. LMO Based Work Permits
• To increase employer monitoring,
HRSDC/CBSA/CIC have increased data
collection and access, closer monitoring of FW
conditions, capped work terms
• Priorities:
–
–
–
–
Accurate Employer Information
Genuineness
Compliance
Cumulative Duration
14

15. LMO Based Work Permits
Employer Information
• Database for history of each employer
• Signed statement that employer will abide by
Program requirements and have abided by
requirements
• Copy of business license/permit; proof of
legitimate existence as an active business
15

16. LMO Based Work Permits
•
•
•
•
•
Genuineness
Increased documentary requirements in
determining employer genuineness
Actively engaged in business
Offer must be within reasonable business
needs of the employer
Employer must be able to fulfill terms of offer
Employer must show past compliance
16

17. LMO Based Work Permits
Compliance
• Increased enforcement of regulations through
Employer Compliance Reviews (ECR)
• Employers must demonstrate past compliance
by proving they met substantially the same
terms and conditions of employment as set out
in previous LMO
17

18. LMO Based Work Permits
Compliance
• Employers must meet the substantially the
same test (STS):
• Complied with the wages, working conditions,
and occupation set out in the original offer of
employment for each foreign worker employed
by the employer
• This is retroactive going back 2 years!
18

19. LMO Based Work Permits
What Records Should be Kept to show
Compliance?
• Wage and benefit information
• Each FW’s name, address, telephone number, job
title, detailed job description and location of work
• Expenses incurred (directly or indirectly) during a
recruiting process (including proof of who was paid)
• Copy of LMO and WP
• All contracts/agreements entered into with foreign
workers and external recruiters
• Record keeping is a must to be able to successfully
pass an ECR
19

20. LMO Based Work Permits
Compliance
• With every new LMO application, HRSDC has
authority to review past compliance for every
foreign worker employed in the past 2 years
• If found not to have met compliance
requirements, must provide “reasonable
justifications”
• If found not to be compliant, can be listed on
public website as “non-compliant employer” and
banned from using TFW program for 2 years
20

21. LMO Based Work Permits
Compliance – “Bad Employer” List
• Public non-compliance list maintained by CIC:
– To be posted on CIC website
– Includes names/addresses of employers found
non-compliant by either CIC or Service Canada
– Employer will be notified of non-compliance first
21

22. LMO Based Work Permits
Cumulative Duration – “Cap”
• foreign worker is permitted to work in Canada
for an accumulated total of 4 years:
– Can apply again once 48 months has elapsed since
the date that the FW accumulated 4 years of work
– Several exceptions apply to the 4 year cap
22

23. LMO Based Work Permits
Cap Exceptions
• FWs in Managerial (NOC 0) and professional
(NOC A) occupations
• FWs who have applied for permanent
residence and received a positive assessment
• FWs who are employed under an LMO exempt
category - such as NAFTA based work permit
or other international agreements
23

24. LMO Based Work Permits
ALMOs – Trusted Employers
• Starting April 25, 2012, “trusted employers” are eligible to
apply for “accelerated” LMOs reducing processing times of
LMOs to about 10 working days
• Attestation based LMO – must consent to undergo ECR –up
to 20% of employers using this program will undergo ECR
• To qualify for A-LMO employers must:
– Have applied for and received approval for LMO within the past 2
years
– Must be able to pass the Substantially the Same (STS) test and
have a clean record of compliance with the program for 2 years
– Must comply with all workplace laws (provincial and federal)
– Request is for a NOC O, A or B level position
24

25. LMO Based Work Permits
Changes in Evaluating Wages
• Employers continue to be required to pay foreign
workers the same wages they pay Canadian
workers performing the same job in the same
location
• The wages paid to foreign workers can now be up
15% less than the “average wage” for skilled
positions and up to 5% less than the “average
wage” for low-skilled positions if this amount is
equal to the wage being paid to Canadians
25

26. Part III
PERMANENT RESIDENCE
26

27. Permanent Residence
CANADIAN EXPERIENCE CLASS
• Temporary Foreign Workers with at least two years of fulltime (or equivalent) skilled work experience in Canada are
eligible to apply for permanent residence through the CEC
(will change to one year by end of 2012)
• Post-Secondary Graduates (at least a two year program or
one year Master’s program)
• Unlike other programs, the CEC allows an applicant’s
experience in Canada to be considered a key selection
factor when immigrating to Canada
27

28. Permanent Residence
CANADIAN EXPERIENCE CLASS
• Have knowledge of English or French and take a language
test
• Have worked at least 24 months of full-time work experience
or the equivalent part-time experience within the 36 months
preceding date of application
• The work experience must have been in NOC O, A or B –
managerial, professional, skilled or technical occupations
28

29. Permanent Residence
ALBERTA IMMIGRANT NOMINEE PROGRAM
• Employer driven process created to help address critical
skills shortages in province
• Leads to permanent resident status on an expedited basis
(compared to regular Skilled Worker category)
• If nomination is granted, a work permit may be obtained
while PR application is processed
• Several streams: skilled worker, semi-skilled stream,
international graduate, employer driven, trades person,
engineer farmer
29

30. Permanent Residence
ALBERTA IMMIGRANT NOMINEE PROGRAM
• As of December 1, 2011 all Provincial Nominees
must apply for permanent residence through the
Citizenship and Immigration Canada (CIC)
Centralized Intake Office (CIO) at the Central
Processing Centre in Sydney, Nova Scotia, Canada
– no longer being processed by the Canadian
Consulates overseas – another recent change by
CIC
30

31. Permanent Residence
ALBERTA IMMIGRANT NOMINEE PROGRAM
• AINP has recently stopped accepting applications
for the Family Stream and the US Visa Holder
Streams
31

32. Permanent Residence
FEDERAL SKILLED WORKER
•
Selected as permanent residents based on their education, work
experience, knowledge of English/French and other criteria that go towards their
ability to become economically established
•
To be eligible for processing, must have:
– Valid offer of Arranged employment, or
– Have one year of continuous full-time paid work experience in at least one of
the 29 listed occupations or
– Be an international student enrolled in a PhD program in Canada (or
graduated from a Canadian PhD program within the past 12 months
32

33. Permanent Residence
FEDERAL SKILLED WORKER
•
Work Experience Minimum Requirements:
–
–
•
Work experience must be for at least one year, continuous and paid (full-time or the equivalent in
part-time) and
Skill type 0 (managerial) or Skill type A (professional occupations) or B (technical occupations and
skilled trades
Once Work Experience Requirements are met, application will be processed
according to the six selection factors in the skilled worker points grid:’
–
–
–
–
–
–
Education
Abilities in English and/or French
Work Experience
Age
Arranged Employment
Adaptability
Total points required is 67
33

34. Permanent Residence
FEDERAL SKILLED WORKER
• In addition, applicants must also show that they
have enough money to support themselves and
their dependents after arrival in Canada
• For the 29 eligible occupations as of May 8, 2012,
the maximum of 10,000 FSW application has been
reached – now waiting on Ministerial Instructions
• Only exception is for those with arranged
employment
34

35. Part IV
TIPS TO ENSURE SUCCESS
35

36. Practical Pointers
At the Port of Entry:
1. Educate the person crossing the border
2. Know the purpose of entry and your itinerary
3. Always be courteous with immigration / border
officers – they have a lot of power and
discretion
4. Always be honest. This avoids potential
misrepresentations
36

37. Practical Pointers
5. Always travel with proper supporting
documentation and package (this includes
Business Visitors)
6. Travel during regular business hours. Then help
can be contacted if there are problems
7. Never insist on entry if problems occur. May be
allowed to withdraw the application. This may be
better than a refusal
37

38. Why is immigration planning/compliance
important?
• Denial of LMO or work permits
• Could result in removal of foreign workers if
working without valid work permit
• Costly to employer reputation (“non-compliant
employer” list)
• Heavy fines for employers if engaging
unauthorized foreign workers
• With passing of Bill C-35 earlier this year,
employers must be careful to ensure HR
specialists are NOT working in capacity of
“immigration representatives”
38

39. Focus on Compliance - Summary
• Employers must establish a culture of
immigration compliance
• Obtain extensions for work permits well in
advance
• Keep up to date and accurate records
• Be aware of how provincial legislation may
relate to FWs (i.e. OH&S, Employment
Standards, etc.)
• Plan ahead – immigration applications take
time
39

40. Focus on Compliance
• Obtain extensions for work permits well in
advance
• Ensure compliance with special rules re:
external recruiters
• Keep up to date and accurate records
• Be aware of how provincial legislation may
relate to TFWs (i.e. OH&S, Employment
Standards, etc.)
• Plan ahead
40

41. THANK YOU!
QUESTIONS?
41

42. QUESTIONS?
Ackah Business Immigration Law
509 20th Avenue SW
Calgary, AB T2S 0E7
(403) 452-9515
evelyn@ackahlaw.com