Immigration Law Update

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					                                       Immigration Law Update
         LAWYERS



    Changes to the Temporary                                                        these changes, government scrutiny of the employer’s
                                                                                    behaviour in relation to foreign workers will extend
    Foreign Worker Program                                                          throughout the period of a foreign worker’s stay in
    Regulations implementing several changes to the                                 Canada..
    Temporary Foreign Worker Program (TFWP) have
    been approved, with an effective date of April 1,                               “Crooked Consultants” Bill
    2011. These changes are significant for all non-                                Bill C-35, the Cracking Down on Crooked Consultants Act,
    Canadians (i.e. people who are not citizens or                                  had its first reading in the House of Commons in June,
    permanent residents) currently working in Canada.                               2010. The Bill proposes to amend the Immigration and
    One significant change is that non-Canadians will                               Refugee Protection Act (IRPA) by regulating the provision
    only be permitted to work in Canada for a                                       of advice or representation at any stage of the
    cumulative period of 4 years, unless the person                                 immigration process, including prior to the filing of an
    would be working under an international agreement                               application.
    (such as the North American Free Trade                                          Under the proposed law, lawyers and articling students
    Agreement), or the work “would create or maintain                               would be permitted to advise for a fee, as well as
    significant social, cultural or economic benefits or                            members of a to-be-determined regulatory body that
    opportunities” for Canadians. This change is                                    will take over from the current Canadian Society of
    intended to reinforce the premise of the TFWP,                                  Immigration Consultants. The Minister’s rationale for
    namely that it is for temporary, not permanent                                  the Bill is that it would curtail existing loopholes
    employment.                                                                     exploited by unethical consultants and serve to
    Another objective of the changes is to minimize the                             safeguard prospective immigrants from fraud and
    potential for temporary foreign workers to be                                   abuse.
    exploited by employers and third-party agents, by                               In a similar vein, the Saskatchewan Immigrant
    implementing stricter monitoring mechanisms in                                  Nominee Program (SINP) recently implemented a new
    order to encourage greater adherence by employers                               Code of Conduct for Representatives and Applicant
    to the terms of their offers with respect to wages,                             Declaration form. All applicants must complete the
    working conditions and occupations.                                             form and declare whether or not they used a
    The main amendments are as follows:                                             representative, whether paid or unpaid, and include the
                                                                                    name of the individual or organization that assisted
    o     A more rigorous assessment of the genuineness                             with the application. The form is intended to deal with
          of the job offer, applicable to both Labour                               problems associated with immigration consultants and
          Market Opinion (LMO) and LMO exempt cases;                                immigration fraud. One aim of the new Code of
    o     The employer’s past compliance with federal and                           Conduct form is to make applicants aware of the
          provincial laws that regulate employment and the                          minimum standards to which their paid representatives
          recruitment of employees will be reviewed;                                must adhere.
    o     A list of ineligible employers (based on non-                             Representatives who do not abide by the Code of
          compliance with the above laws) will be                                   Conduct will face the following actions for a period of
          published on Citizenship and Immigration                                  up to two years or longer at the SINP’s discretion:
          Canada’s web site.                                                        o     The SINP will not communicate with the
    o     Employers who are found to have negatively                                      representative.
          changed a foreign workers’ conditions of                                  o     In-progress and future applications will not be
          employment will be prevented from obtaining an                                  processed through the representative.
          LMO for a period of two years.
                                                                                    o     The representative’s professional association may
    The amendments will strengthen existing measures                                      be notified for further action.
    to improve employer compliance and increase
                                                                                    The form came into effect on May 26, 2010.
    protections for temporary foreign workers. With


 www.mlt.com                     Regina                |          Saskatoon              |                  Calgary              |        Edmonton


This Update is provided as an information service by MacPherson Leslie & Tyerman LLP. The articles are general in nature and do not constitute legal advice.
Advertising material. This is a commercial Solicitation. (This notice required by Law Society of Saskatchewan Rule1602.1(2)).
                                                                                                                                                           Page 2



                                                                   Immigration Law Update


     Changes to Labour Market Opinion                                                provincial nominee programs, and others. It is
                                                                                     important also consider these potential options because
     Advertising Requirements                                                        using the exemptions may often be more appropriate
     In most circumstances, Canadian immigration law                                 than using the LMO process, and the exemptions can
     requires employers who want to hire foreign workers                             also save employers considerable time, effort and
     to first apply to Service Canada for a labour market                            money.
     opinion (LMO) before the worker is eligible to apply
     for a work permit. Generally, in order to qualify for                           Information Technology Specialists
     an LMO, Canadian employers have to demonstrate,                                 Program Ends September 30, 2010
     among other things, that they have made efforts to
                                                                                     Service Canada has announced that the program
     hire Canadians for the job that is offered to the
                                                                                     for facilitated work permit processing for information
     foreign worker (usually through advertising).
                                                                                     technology (IT) specialists will come to an end on
     The advertising requirements depend on the skill                                September 30, 2010. Under the facilitated process, an
     level of the position, in accordance with the National                          employer was not required to obtain a labour market
     Occupational Classification (NOC). Before starting a                            opinion (LMO) in order to hire foreign workers in
     recruitment process, it is necessary to identify the                            seven specific IT occupations.
     NOC code that corresponds to the position to be
                                                                                     Effective October 1, 2010, work permit applications
     filled. Occupations are classified in five levels: 0
                                                                                     will require an LMO for the IT occupations that were
     (management); A (university education usually
                                                                                     previously exempted under the facilitated process.
     required); B (either a college education or
                                                                                     Therefore, employers who wish to hire temporary
     apprenticeship training usually required); C
                                                                                     foreign workers previously eligible for IT facilitated
     (secondary school and/or occupation-specific
                                                                                     processing will now be required to apply for an LMO
     training usually required); or D (on-the-job training
                                                                                     and satisfy all advertising requirements in advance of
     usually provided).
                                                                                     the employee’s arrival in Canada.
     In May, 2010, Service Canada introduced “Minimum
                                                                                     This update is presented by MLT’s Immigration Law
     Advertising Requirements for LMO applications”,                                 Group. For further information contact:
     making it clear that demonstrating sufficient
     Canadian recruitment is now Service Canada's
     primary consideration when assessing LMOs.                                      Chris Veeman | cveeman@mlt.com | (306) 975-7102
     Posting a job advertisement at Service Canada's                                 Stephanie Yang | syang@mlt.com | (306) 347-8451
     National Job Bank (www.saskjobs.ca for                                          Kelli Lemon | klemon@mlt.com | (780) 969-3503
     Saskatchewan) is mandatory before hiring a non-
     Canadian in any position at skill level B and lower,                            To Unsubscribe: Email ImmigrationLaw@mlt.com,
     unless an explicit exemption applies. These                                     Subject: "Immigration Law Update Unsubscribe".
     occupations also now require both advertisements on
     the Job Bank and evidence of recruitment activities
     consistent with the practice within the occupation.
     In order to meet the advertising requirements for
     occupations at levels 0 or A, employers must conduct
     recruitment activities consistent with the practice
     within the occupation.
     Advertising properly to fill a position is critical to
     ensure that Canadians and permanent residents are
     aware of the job opportunity, and failure to properly
     advertise compromises the attempt to hire the
     foreign national into the position. There are
     numerous exemptions to the obligation to obtaining
     an LMO, such as the use of international treaties,


      www.mlt.com                     Regina               |           Saskatoon              |                  Calgary              |        Edmonton

This Update is provided as an information service by MacPherson Leslie & Tyerman LLP. The articles are general in nature and do not constitute legal advice.
Advertising material. This is a commercial Solicitation. (This notice required by Law Society of Saskatchewan Rule1602.1(2)).

				
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