Important Amendments to the Immigration and Refugee Protection Regulations Regarding Temporary Foreign Workers
Citizenship and Immigration Canada has announced that it will implement amendments to the Immigration and Refugee Protection Regulation pertaining to Temporary Foreign Workers on April 1, 2011. Most notably, the Amendments impose a new four-year maximum cumulative duration for work permits for temporary foreign workers, with certain exceptions. The objectives of the regulatory changes are to reduce the potential for exploitation of temporary foreign workers by employers and third-party agents, implement stricter employer accountability mechanisms in order to encourage greater adherence by employers to the stated terms and conditions of offered jobs, and highlight that employment facilitated through the Temporary Foreign Worker Program is designed to be temporary in nature.
The following is a summary of important changes to the regulations:
- A four-year maximum cumulative duration of work permit for temporary foreign workers followed by a period of at least four years not working in Canada is outlined in section 200(3)(g) indicates that a work permit is intended to be temporary in nature. There are exemptions to this rule – for example, in the case of internationally commuting workers. The worker will be able to make the case that they have not met the four-year maximum period.
- Expanded concept of “genuineness” by instituting specific factors on which the genuineness assessment is to be made in section 200(5). The purpose behind the “genuineness” test is to avoid shell corporations from obtaining permits. New employer declaration form will be added to the application.
- Section 183(1)(b.1) restricts an employer’s eligibility to access the Temporary Foreign Worker Program for two years where the employer, at the time of the application or request, has been found not to have provided wages, working conditions or an occupation to a temporary foreign worker during the period beginning two years from the application or request that were not substantially the same as the terms and conditions of the job offer, and for which a reasonable justification has not been provided.
- An employer who is found not to have complied with the terms and conditions of offered employment will be given an opportunity to justify a finding of non-compliance as per section 203(1.1). The issue of non-compliance will only be considered when there is an active application. The employer will be notified that the application is non-compliant and may decide not to offer employment and withdraw the application.
- Where an employer has been found to be non-compliant with the offered terms and conditions of employment, CIC will publish a list of ineligible employers, including the employer names, addresses and period of ineligibility on CIC’s external website. Employers will be notified prior to being named on the website.
- In work permit applications that require an opinion by HRSDC, HRSDC will have the authority to introduce a provision indicating a period of time during which their opinion is in effect.
The amended regulations will be forward-looking only. The amendments will only apply to situations on or after April 1st. However, if a complaint is received on or after April 1st, CIC will examine the complaint.