Global Migration Digest

April 2014 (Vol. 2, No. 3)

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www.aila.org 3 by Stephen W. Green, LLB T here were many changes to the Canadian immigration landscape last year, and now in 2014, we have the opportunity to assess the effects these changes are having on the ground as companies and other organizations in Canada attempt to abide by strict new requirements and compliance burdens. Changes to both the Temporary Foreign Worker Program and the Immigration and Refugee Protection Act are already having an impact. But let's start at the beginning. In 2013 the Government of Canada, amid heavy criticism, revamped the Temporary Foreign Worker Program (TFWP) and implemented new, strict compliance measures. e changes came amid accusations that Canadian companies were exploiting the program in order to displace Canadian workers in favour of less expensive foreign workers. e new compliance measures were meant to ensure that companies, in obtaining a favourable Labour Market Opinion (LMO), have made genuine efforts to recruit local workers through widely accessible advertising, and are offering compensation that is at-or-above the local prevailing wage for that occupation as determined by Employment and Social Development Canada (ESDC). In order to ensure that local workers are not displaced by less expensive foreign labour, companies will also be required to put in place a plan to train or transition to local Canadian workers and, on demand, advise inspectors of their progress with respect to implementation. ESDC inspectors now have the authority inspect all records related to the hiring of a foreign worker under the program for up to 6 years. is may include on-site inspections without a warrant. e failure to abide by the terms of any LMO issued, including wage requirements and transition plan implementation, can result in a company being prevented from hiring foreign labour for 2 years and having their name included on a publicly disclosed blacklist of non-compliant companies. As information obtained through inspections is shared with other government agencies failure to abide by the terms of an LMO may result in additional sanctions if violations of employment law, human rights law, or other occupational law are discovered. In addition to changes to the TFWP, the government introduced changes to the Immigration and Refugee Protection Act (IRPA). One change in particular, s.91 of the IRPA, was intended to weed out crooked practices within the immigration consulting industry by prohibiting the offering of immigration advice, services or representation by anyone other than members in good standing with a provincial law society and certain other organizations designated by the Minister. e function of s.91 is similar to G-28 in the United States. While the law was meant to target immigration consultants, Citizenship and Immigration Canada has confirmed that neither Human Resources Personnel nor University International Student Advisors are authorized representatives within the meaning of the law and as such, cannot provide advice or guidance on immigration or permit options, or provide assistance in completing applications. As a result, companies and universities have had to seek outside legal assistance to provide services that were previously provided in-house. Both of these changes are already having an impact. In addition to the large administrative burden of complying with the TFWP, companies undergoing protracted audits have to slow, or even shelve, growth plans as they seek to justify to ESDC inspectors all business decisions that deviate from the LMOs. Universities and colleges are finding it difficult to recruit and retain qualified international students without the benefit of being able to provide clear guidance on navigating Canada's immigration system. Seeking outside counsel, while a solution, has proven an additional burden for cash strapped post-secondary institutions. And these changes are just the beginning. Early this year, the government tabled amendments to the Citizenship Act that would affect the rights and protections that attach to the citizenship of naturalized and expatriate Canadians. e government also, via the most recent budget, terminated the Immigrant Investor Program, while promising an as-yet-to-be-determined replacement. In the coming months, we will need to further assess this piece-meal, micromanaging approach to immigration reform. Stephen W. Green is a Partner at Green and Spiegel LLP. He is a past chair of the Citizenship and Immigration Section of the Canadian Bar Association. Canadian Immigration Reform: Trends, Unintended Consequences FOR MORE ON CANADIAN IMMIGRATION LAW: Canada Cracks Down on Foreign Nationals VOICE, November/December 2013

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