Temporary Foreign Worker Program: Employer Compliance
Temporary Foreign Worker Program: Employer Compliance
Canada is one of the world's most industrialized countries, with annual production expansion and an economy that has been growing steadily for decades. The rapid rise of industry and construction in Canada has resulted in a manpower shortage in the local labour market. The Canadian government has passed a law to recruit foreign employees to fulfil labour market demands. The bill permits major Canadian businesses to hire foreign workers in a number of manufacturing and service industries. The provinces with the greatest skills shortages are Ontario, Quebec, British Columbia, Alberta, Manitoba and Saskatchewan. Thousands of foreign employees arrive in Canada each year on work visas from all over the world. The Temporary Foreign Worker Program (TFWP) has been operating since 1973. The program allows Canadian companies to hire foreigners for short-term work in conditions of a shortage of labour, both from abroad and among people already in the country. It currently includes the following categories: Live-in Caregiver Program; Seasonal Agricultural Worker Program; other work permit holders such as High-skilled, Low-skilled and Low-Skill Pilot (LSP) specialists. For employers who have been unable to hire Canadian citizens or permanent residents, the TFWP opens the door to recruiting workers from overseas. Employers may also hire skilled foreign workers who are already in Canada, such as foreigners looking to contract with another employer or who have an open work permit that allows the employee to work with any employer in Canada. To be able to hire foreign workers, an employer must comply with government requirements and be inspected by government agencies such as the Employment and Social Development Canada (ESDC).
In most instances, a Canadian employer that wants to recruit a foreign worker under the Temporary Foreign Worker Program must first get authorization from the government. This is a condition that does not apply solely to Canada. Any country strives to protect its residents first and foremost, avoiding a situation in which they are denied employment due to foreign applicants ready to work for less money. To grant a Labour Market Impact Assessment (LMIA also known as Labour Market Opinion), Canadian government agencies must establish that hiring a foreign employee does not discriminate against Canadian residents and has no detrimental impact on the country's labour market. Simply said, the government needs proof that the employer tried his hardest to locate candidates for the position among Canadian citizens and permanent residents but was unable. So, the discovered foreigner will be recruited on conditions that are comparable to the industry's average (that is, the salary and social package are not underestimated). Whether the foreign employee recruited is high-paid (above the province average) or low-paid, the process for getting an LMIA differs (below the provincial average). For example, obtaining authorization to hire a low-paid foreign employee in a region of Canada when the unemployment rate is above 6% is unlikely to succeed. In any event, the company will have to provide the government prove that the position was aggressively advertised on major Canadian and provincial job search sites, as well as explain why every Canadian applicant who applied for the job was turned down.
The LMIA explains how the potential employee would influence the Canadian labour market and that hiring him will have no negative repercussions. It is an important part of employer compliance. If the hiring party can show the authorities that this specialist is needed, he will obtain a positive LMIA, often known as a "confirmation letter." The LMIA must demonstrate that no Canadian employees are available for this position and that only a foreigner can fill it, as well as show proof of how the firm searched for an employee in the form of recorded search procedures and that they made every attempt to locate one. For instance, a job may be posted in numerous sources. The employer is solely responsible for the assessment. Before hiring a foreigner, the employer must determine whether he needs an LMIA and, if so, apply for one. A foreign worker might also check on his own to see if an LMIA is necessary for his job. To do so, you must first answer the following questions: the types of work permits that a foreign worker may apply for; the procedures that an employer must complete before a foreign worker may apply for a work permit. Before a temporary worker files for a work visa, employers must acquire a Labor Market Impact Assessment (LMIA). The employee can apply for a work permit when the company obtains the LMIA. To apply for a work permit, an employee will need the following documents: a job offer letter, the agreement, a duplicate of the LMIA, and the LMIA number. After hiring a temporary foreign worker, an employer must keep all documents connected to their LMIA application, as well as any other paperwork that shows compliance with the program's standards, for a period of six (6) years.
In addition, any modifications or mistakes of an approved LMIA or a temporary foreign worker must be reported to Employment and Social Development Canada (ESDC)/Service Canada. Employers must evaluate their actions connected to the employment of temporary foreign workers regularly to verify that they are following the Temporary Foreign Worker Program requirements, and they must take steps to correct any errors or non-compliance as soon as they are identified.
Any firm using the TFWP in conjunction with their LMIA or LMIA request can be subjected to one of three types of reviews: inspection, Employer Compliance Review (ECR), or an assessment under Ministerial Instruction by Employment and Social Development Canada or Service Canada. LMIAs may be temporarily suspended during any type of assessment. While the review is underway, foreign employees will be unable to acquire a work permit from Immigration, Refugees and Citizenship Canada (IRCC).
Employer compliance: inspection
An inspection is carried out to check that the employer continues to comply with the requirements of the offer letter, the positive LMIA letter, and the annexes, ensuring that employees are not mistreated and that the Temporary Foreign Worker Program (TFWP) is being used as intended. The inspection can take place at any time after the end of the permitted working period for which the work permit was issued, which is six years. There are different circumstances when an inspection may occur. The first one is when the employer compliance was not followed, i.e. there was the previous experience when the hiring party did not follow the rules either of International Mobility Program or Temporary Foreign Worker Program. Another occasion when an inspection may be conducted is when employer compliance is checked by the officials using a random selection approach. However, if there was even one violation of conditions issued in the Immigration and Refugee Protection Regulations (IRPR), then an officer has the right to check employer compliance.
If an inspection occurs, the company must provide all of the necessary documents required by the officer, attend meetings, assist the officer and keep all records relating to employer compliance with the terms of the employment offer and LMIA application. During an inspection, an investigator may enter and examine any location where a foreign national works, as well as question any foreign or Canadian colleagues who are present in the office.
Businesses who are determined to be non-compliant for a violation may face a variety of penalties. These are calculated using a point system that takes into account the kind of infraction, the employer compliance history of the company, the severity of the violation, the size of the company and if the party voluntarily revealed information regarding potential non-compliance before an inspection was begun. The possible penalties for non-compliance may be monetary fines, several years bans and cancellation of previously granted LMIAs. If an inspector notices any suspicious trends or anomalies during the processing or granting of a work permit, they must report to the Case Management Branch (CMB), Investigations and Exceptional Cases Division (IECD).
Employers who are proven to be in violation will receive a notice explaining the infraction and the sanctions that will be imposed. The business will then have 30 days to reply in writing with further information about the infraction, the sanctions imposed, or both. This might contain an explanation for non-compliance, as well as any other aspect or concern the employer believes the officer should be aware of before making a final judgment. The companies may also request a response time extension beyond the first 30 days.
Before a final judgment of non-compliance is made, the employer must provide IRCC with information and supporting documentation that demonstrates how the non-compliance is justified. The employer may escape being declared non-compliant if the officer deems the reason satisfactory.
Employer Compliance Review
Unlike inspections, Employer Compliance Reviews (ECR) take place before the LMIA application is accepted to ensure that prior compliance with program criteria for salaries, occupation, and working conditions has been verified. On their LMIA application form, returning employers certify their previous compliance. Before receiving the LMIA application under the ECR, ESDC/Service Canada may assess an employer's compliance for up to six years. In this case, foreign workers must do exactly the same job with the same working conditions that were initially provided in the job offer.
Employers may be subjected to a document-based examination when reapplying for the Temporary Foreign Worker Program to confirm that they have satisfied the salary, working conditions, and occupation standards. Businesses will be required to submit certain papers to show that they are in employer compliance. They will have the chance to submit reasons for a preliminary report of noncompliance and to take corrective action during the review, if necessary.
Review under Ministerial Instruction
The goal of a Ministerial Instruction review is to see if new information obtained by ESDC/Service Canada supports revoking an already authorized LMIA. It can happen at any time after a positive LMIA has been granted. Employers are only chosen for this type of assessment when ESDC/Service Canada gets a tip about an LMIA that might warrant the suspension/revocation for public policy grounds. The permanent termination of an LMIA or the cancellation of one or more places on the LMIA is referred to as revocation. The LMIA can no longer be utilized to acquire a work permit from IRCC once it has been cancelled. If an LMIA is cancelled after a work permit has been granted, IRCC may withdraw the foreign national's work permit as well.
Any review results can be either satisfactory or non-compliant. If it is satisfactory, then it means a company demonstrates employer compliance with the examined conditions or adequately reasons for noncompliance. If a business is found as non-compliant, it means that the employer is unable to establish compliance with the examined conditions or provide acceptable justification for the non-compliance.
Employers that believe they may have broken the Temporary Foreign Workers Program's terms should take the appropriate steps to become compliant and voluntarily submit this information to the IRCC. The IRCC will next analyze the severity of the suspected violation and determine if an inspection is required based on the information supplied. Not every revelation will result in a visit. If an inspection is done after a voluntary disclosure and the employer is determined to be non-compliant, the penalty may be lowered or waived entirely. In such situations, the IRCC will look at a variety of criteria to see if the employer qualifies for a lower penalty. For instance, the factor if the disclosure is voluntary, promptness of a disclosure, and employer’s history are taken into account when an officer is reviewing employer compliance.
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