Mamann, Sandaluk makes submissions to the federal government regarding proposed amendments to the foreign worker program

December 9th, 2009

Maia Welbourne, Director
Temporary Resident Policy and Programs
Immigration Branch
Citizenship and Immigration Canada
365 Laurier Avenue
Jean Edmonds Tower South, 8th Floor
Ottawa, Ontario
K1A 1L1

Dear Ms. Welbourne,

RE: Representations regarding the
Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers)

Publication: Canada Gazette, Part I, published October 20, 2009

We are writing to you concerning the impact of the proposed amendments to the Immigration and Refugee Protection Regulations, published in the Canada Gazette on October 10, 2009. As lawyers, we represent a wide range of employers and employees who will be directly affected by any registered changes. While the proposed changes cover a wide range of issues, we are highlighting several concerns that we believe are of particular importance.

Specifically, we will address some issues within the following broader categories: the four year cap, the lack of transitional provisions and the proposed assessment of genuineness. Our recommendations are as follows:

• Provide an exemption from the four-year cap to foreign nationals applying under ss.206, 207 and 208;

• Eliminate the proposed R 200(5)(a). Concerns around "genuineness" can be addressed by requiring start-up companies to provide business plans, including strategies for hiring employees and locating physical premises.

• Amend the proposed R 200(5)(d) to provide some element of discretion when assessing the genuineness of a job offer, and create a specific penalty window similar to the one in R 200.1(1).

I. The Four Year Cap

(a) Four year cap not good for Employers of TFWs

Capping work permits will have serious consequences to employers, especially those in industries that rely heavily on Temporary Foreign Workers (TFW). Many will be unprepared or unable to prepare for the transition if and when the proposed regulations come into force.

With respect to the objectives of the proposed changes, it is not clear what this capping does with respect to protecting the foreign worker. It is also not clear how this four year cap will encourage employers to comply with the terms of their job offers.

It is clear, however, that the four year cap underlines the temporary nature of the employment for TFWs in Canada. But what is also clear is that employers who rely heavily on TFWs on a longer-term basis will suffer potentially serious economic consequences of losing a great part of their existing work force, and will have to hire and re-train new foreign workers. This is especially true when the demand for TFWs in a particular industry has been ongoing for years, and will continue for years to come.

One example is the horse racing industry. For years, ranches have had to rely on TFWs as horse trainers (i.e., to exercise and care for horses in preparation for and during the racing season, from around March to December of each year).

Many of these ranches have had TFWs in their employ for at least four years. With the coming into force of the proposed regulations, many of these TFWs will have exceeded the four year limit, and consequently will be refused extensions on their work permits.

The proposed regulations will result in workers in TFW-dependent industries being abruptly barred from further work permits. There is no assurance that these TFWs will be granted permanent residence before their current work permits expire, and employers will be left scrambling to find new workers in order to maintain their economic viability.

(b) Four year cap not good for TFWs who work continuously in Canada

In theory, this problem may be cured by the TFW applying for permanent residence under the Canadian Experience Class or the Skilled Worker Class. In practice, however, this may not be possible because processing times under both categories are only increasing. With respect to the Canadian Experience Class (CEC), the number of applicants to be approved in 2010, according to Canada's 2010 immigration plan, will drop dramatically by at least 50%. Fewer foreign workers will have received decisions on their permanent resident applications by the time they have reached the 4 year cap. With respect to the Skilled Worker Class, processing times for applications filed before February 28, 2008 are at least 2 years, while processing times for applications file after February 28, 2008 are at least one year but slowly creeping towards the two year mark. Thus, a TFW who has applied for permanent residence may need to continue working in Canada for more than four years waiting for a decision, and forcing that TFW to uproot and return to their home country will be unnecessarily disruptive.

(c) Four year cap not good for TFWs who have worked in Canada previously

Under the proposed regulations, the 4 year period is calculated on a cumulative basis. An immigration officer would review an applicant's work history in Canada, and if the applicant has already worked in Canada for, say, 1 year in 1999, then he or she can now get a new work permit for no more than 3 years. Indeed, this may be sufficient in some instances, but again for industries that rely heavily on TFWs, and will continue to rely on TFWs for years to come, this can be devastating. What happens when the applicant has already worked in Canada previously for at least 2 years or 3 years back in 1991? An employer would therefore be able to employ this TFW for just 1 or 2 years before the four year limit will be met. Thereafter, the TFW will be unable to renew his or her work permit for another 6 years.

If a four year cap is to be implemented, it is important to apply this provision only on a prospective basis, with all TFWs currently in Canada on work permits and those who have had past work authorizations in Canada being given a clean slate.

(d) Four year cap not good for Live-In Caregivers

Under the proposed regulations, TFWs who come to Canada under the Live-in Caregiver Program ("LCP") will also be limited to receiving work permits for a period of 4 years from original entry.

Under the LCP, a caregiver must work for 2 years within 3 years of their original entry in order to be eligible to apply for permanent residence from within Canada. If it takes the caregiver 3 years to fulfill the 2 year requirement, then the caregiver can only continue to work for 1 year because thereafter, she will be barred from getting an extension for at least 6 years.

This may not be a problem if the processing of a caregiver's application for permanent residence only takes 1 year to complete. However, in most cases, applications take more than 1 year to complete. In fact, for caregivers with family members overseas, applications for permanent residence could take at least 2 years to complete. While waiting, a caregiver will not be eligible for further extensions on their work permits after 4 years of work in Canada. In the end, they will be barred from working for at least 1 year, often more, before they and their family members are granted permanent residence. They will also be disqualified from applying for permanent residence under the live-in caregiver class as they are required to be in possession of a valid work permit at all times in order to be granted permanent residence.

(e) Four year cap not good for foreign nationals eligible for work permits under ss. 206, 207 and 208 of the Regulations

Under the proposed regulations, foreign nationals who are eligible for work permits under ss. 206, 207 and 208 of the Regulations will also be limited to 4 years on their work permits.

Section 206 of the Regulations authorizes the issuance of work permits to refugee claimants and failed refugee claimants, and to those who are the subject of removal orders that are unenforceable. The rationale here is to allow foreign nationals who have no other means of support to work instead of becoming a burden on the welfare system. The proposed regulations' wide net will be cast over these foreign nationals at the expense of provincial coffers.

Currently, failed refugee claimants from countries under the Temporary Suspension of Removals (TSR) may be in Canada for well over four years, as they cannot be deported. If they are not granted permanent residence by the four year mark, they will be barred from further work permits until they do get permanent residence (though permanent residence is never guaranteed), or until the TSR is lifted and they are deported.

The ever increasing backlog of refugee claims before the Refugee Protection Division raises a similar concern to this 4-year cap.

Section 207 of the Regulations authorizes the issuance of work permits to caregivers, spouses and humanitarian applicants who have been "approved in principle" and to protected persons who are not yet permanent residents. These are individuals who have been granted permission to remain in Canada, but are waiting on CIC's processing times. As discussed above however, under the proposed regulations, if the individuals have been working in Canada for more than four years, they will be barred from working for at least 6 years, even though they are entitled to remain in Canada.

Section 208 authorizes work permits to destitute students and Temporary Resident Permit holders. As in the above situations, there is no exemption from the 4-year cap/6-year bar for these classes of applicants.

Any proposed changes to the Regulations must exempt, at a bare minimum, all foreign nationals applying under the authority of ss.206, 207 and 208 of the Regulations.

II. No Transitional Provisions

According to the Regulatory Impact Analysis Statement, the establishment of a four year cap "would emphasize to both workers and employers that employment under the TFWP is intended to be temporary in nature, and encourage the use of appropriate programs and pathways to permanent residence where available."

Foreign nationals may have already applied for permanent residence, or given the proposed changes, intend to do so in the very near future. Neither of these groups however, is guaranteed to have their permanent resident applications finalized prior to the expiry of their four year cap.

According to the CIC's website, the current overall average processing time for Federal Skilled Worker applications received before February 27, 2008 is 60 months. In Buffalo, the visa office responsible for foreign nationals legally residing in Canada, the processing time is only 26 months. However, many TFWs in Canada did not, or could not use Buffalo as their visa office. Instead their applications are being processed at the visa offices such as Damascus and New Delhi, where processing times are 73 months. Clearly, there is a high probability that these applicants will max out the four year cap before their landing applications are finalized.

Even Federal Skilled Worker applicants who applied after February 27, 2008 are at risk of maxing out the cap. When the new Skilled Worker program was announced it was anticipated that processing times would be approximately six to twelve months. However, according to a recent Auditor General report, the visa offices are unable to meet this time frame. In November, 2009 we received an email from the Buffalo office advising that it currently takes 52 weeks to conduct the initial review of an application. This time frame does not include the finalization of an application - just the initial review. To date we have not received an estimate of the overall processing times for new Skilled Worker applications in Buffalo or any other visa office.

Under the proposed regulations TFWs would be required to leave Canada after reaching the four-year cap, regardless of the status of their permanent residence application. Naturally, this will be a major hardship for the Temporary Foreign Worker who may lose their job and have nothing to return to in Canada when their application for landing is finally completed. However, it will also have a negative impact on the employer and by extension, the Canadian economy.

Most employers will not be willing to keep a position open while their TFW waits for the six-year period to elapse, or until their permanent residence application is finalized. Employers will be required to bear the expense of training a replacement. In fact, finding a replacement itself may be difficult given the fact that the employer has already demonstrated a labour shortage when they received the initial Labour Market Opinion. The time and expense of training a replacement would have a negative impact on both the employer's business and the Canadian economy.

If a four year cap is to be implemented, it is important to apply this provision only on a prospective basis, giving all those currently in Canada on work permits a clean slate. In the end, however, this does not address the underlying concern that foreign nationals and their Canadian employers are not in control of CIC's increasingly lengthy processing times.

III. Proposed Assessment of Genuineness

The proposed R 200(5) sets out a number of factors upon which an officer shall determine whether any given job offer is "genuine" within the context of R 200(1)(c). This "genuineness" assessment will impact work permits issued pursuant to R 204 (international agreements) and R 205 (significant benefit), as well as those issued under R 203 (labour market opinions). Two of these factors are whether employers are actively engaged in their respective business, and the past compliance of the employer with federal and provincial laws. Both of these proposed changes may have unintended, yet serious, consequences for Canadian employers.

(a) Proposed R 200(5)(a)

Currently, work permits may be issued under R 203, 204 or 205 for "start-up" businesses. This allows new Canadian companies to bring in the most appropriate and qualified employees to spearhead the development of their new business. The proposed R 200(5)(a) will deem any offer of employment "not genuine", simply because the Canadian company is not yet actively engaged in its intended business.

This will be especially difficult for employers issuing offers under R 204 and 205 to intra-company transferees. It is common for international companies to choose some of their best and brightest to open up new offices in Canada. This often requires a transfer of executives or business development managers in order to bring the Canadian company to the point of being "actively engaged" in its business. We are concerned that the proposed R 200(5)(a) will have a chilling effect on the creation of Canadian branches, subsidiaries and affiliates of international companies.

We suggest that the proposed R 200(5)(a) be removed, and that start-up companies continue to remain eligible to issue offers of employment. The concerns around "genuineness" can be addressed by requiring that start-up companies provide business plans, including strategies for hiring employees and locating physical premises.

(b) Proposed R 200(5)(d)

In its current form, the proposed R 200(5)(d) would deem "not genuine" offers of employment from any Canadian employer who has ever violated any federal or provincial law that regulates employment. As specifically stated in the Regulatory Impact Analysis Statement, this would also "catch" employers who otherwise could be prosecuted under R 124(1)(c) - "employs a foreign national in a capacity in which the foreign national is not authorized". The implications of proposed R 200(5)(d) are far-reaching and will have deep ripple effects within our economy.

The administrative burden imposed on Canadian companies by this proposed will be enormous. In order to preserve their right to extend "genuine" offers of employment to foreign nationals, Canadian companies will be forced to implement policies to not only request proper work authorization from prospective employees, but to verify that this work authorization was issued to the right person. They will also be required to impose these procedures on any recruiting companies they use. Any fraudulent use of others' permits will have to be caught by the employer. For a small business with only a handful of employees, this may not be such a large burden. If however, you consider Canada's large, multinational companies, which hire thousands of people across the country, such a procedure will be prohibitively expensive and onerous. For example, the inadvertent hiring of one unauthorized office cleaner for a large multinational corporation would negate that company's ability to extend "genuine" offers of employment to other foreign nationals.

Another consequence of this proposed provision will be felt by the foreign nationals themselves. Those here without permanent status who have sought out employment, albeit not authorized, to support themselves and their families, will be very reluctant to file permanent residence applications. The forms require individuals to disclose their entire work history - authorized and unauthorized. These foreign nationals are already legitimately concerned about the impact that disclosing their unauthorized work could have on the employers who hired them. This concern is aggravated by the proposed regulations. Under R 200(5)(d), any employer who is listed on any foreign national's work history forms as having employed an individual without authorization, will be caught by this provision and forever barred from offering "genuine" offers of employment to foreign nationals. This will discourage employees from accurately completing permanent residence forms, or completing them at all as they will be faced with the fact that their disclosure will undermine their employer's ability to issue genuine employment offers in the future.

Finally, as currently written, there appears to be no time limit on how far back CIC can go in assessing a Canadian employer's "past compliance". While other proposed sections (see proposed R 200.1(1)) provide for a two-year window, following which the employer may once again issue "genuine" offers of employment, there is no such window on R 200(5)(d).

This punishment is severe and does not allow for discretion by the officer where it is clear that the punishment is disproportionate to the employer's offence. Further, the provision is retrospective, making companies currently responsible for all hiring actions taken by them at any time in the past.

The proposed R 200(5)(d) should be amended to provide some element of discretion when assessing the genuineness of a job offer, and should create a specific penalty window similar to the one in R 200.1(1).

CONCLUSION

As stated above, we believe that the proposed Regulations may have unintended, yet serious consequences for both foreign nationals and Canadian employers. We have highlighted some of our major concerns and recommend the following changes:

• If a four year cap is to be implemented, it should be applied only on a prospective basis, giving all those currently in Canada on work permits, and those who have held work authorizations in Canada in the past, a clean slate;
• Provide an exemption from the four-year cap to foreign nationals applying under ss.206, 207 and 208;
• Eliminate the proposed R 200(5)(a). Concerns around "genuineness" can be addressed by requiring start-up companies to provide business plans, including strategies for hiring employees and locating physical premises.
• Amend the proposed R 200(5)(d) to provide some element of discretion when assessing the genuineness of a job offer, and create a specific penalty window similar to the one in R 200.1(1).

We believe that these recommendations will alleviate some of the hardship that will be caused to foreign nationals, their Canadian employers and by extension the Canadian economy that would otherwise be brought on by the proposed changes.

Yours very truly,
MAMANN, SANDALUK

'Elise Bell'

Elise Bell, Barrister & Solicitor

'Rafael Fabregas'

Rafael Fabregas, Barrister & Solicitor

'Tabitha Holland'

Tabitha Holland, Member of the Canadian Society of Immigration Consultants

< Back to Previous Page