On October 9, 2009, the Federal Government proposed major changes to regulations pertaining to Canada's Temporary Foreign Worker Program (the Program). These revisions are meant to strengthen protection for temporary foreign workers (TFWs) to ensure greater employer compliance with TFW employment agreements, and to underscore that TFWs are meant to be in Canada only for a limited duration to fill labour gaps. Here are some of the highlights of the significant planned changes:

Genuineness of Employer Offers: The new regulations would clarify the process and establish factors to be considered in assessing the genuineness of all offers of employment. These factors include whether the offer is made by an employer who is actively engaged in the business in which the offer was made, whether the offer is consistent with the needs of the employer, whether the employer is able to fulfill the terms of the offer, and past compliance of the Canadian employer. Examples of a breach of a genuine offer might involve paying a TFW less than indicated in immigration applications or failing to provide a TFW with adequate accommodations, if that is a requirement of the immigration category.

Employer Eligibility Restrictions: Currently, there are no enforceable provisions available to hold employers accountable when they have been found to have provided significantly different wages, working conditions or occupations than what was initially offered to a TFW. Under the new regulations, if these breaches occur, the employer will be banned from participating in the TFW Program for a two-year period. The violating employer's name and address will also be listed on Citizenship and Immigrations Canada's website, along with the reasons for their ineligibility.

Maximum Time Periods for TFWs: Because the purpose of the Program is to address temporary labour shortages, another proposed change to the regulations will limit a TFW to only being able to work in Canada for a combined term of four years. After these four years have been exhausted, the TFW would not be authorized to work in Canada for a period of at least six years before they can return to Canada. There would be a few exceptions, however, such as whether the work performed created significant social, cultural or economic benefits for Canada, or whether the work was being performed pursuant to an international agreement (e.g. NAFTA). Employers will need to consider what their long-term needs will be much sooner, and initiate the permanent residence application process for their TFWs.

Live-in Caregivers: Added requirements for an employer of a live-in caregiver include providing adequately furnished and private accommodations in the household for a TFW, and the employer demonstrating that he or she has sufficient financial resources to pay the wages offered to the TFW. Live-in Caregivers will be denied work permits in cases where the employer cannot prove they can fulfill these requirements.

Labour Market Opinion Time Period: Under the proposed regulations, Human Resources and Skills Development Canada (HRSDC) will be required to state a time period during which their labour market opinions will be in effect. Although these time periods were often stated anyway, it will now become a legal requirement outlined in the regulations.

Conclusion:

Although the proposed regulations have not yet become law, it is expected that they will come into force within the next two months, subject to any additional revisions.

It is important for Canadian employers to be aware that even a single violation can result in a ban that may impact their ability to employ TFWs to assist their operations. Employers should implement workplace measures to ensure full compliance with immigration processes and policies. The Business Immigration Law Group at Fraser Milner Casgrain LLP can assist you in developing a compliance strategy as well as a plan for moving your TFW into the permanent residence process as quickly as possible. We will keep you updated on any significant developments involving these proposed regulations. Feel free to contact us with any questions you may have.

For further information, please view the following news release from Citizenship and Immigration Canada:

Minister Kenney proposes improvements to the Temporary Foreign Worker Program

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.