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 | email@example.com | (306) 975-7102 Posting a job advertisement at Service Canada's Stephanie Yang | firstname.lastname@example.org | (306) 347-8451 National Job Bank (www.saskjobs.ca for Kelli Lemon | email@example.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)).