Canadian Corporate Immigration

Transcription

1 Canadian Corporate Immigration Ongoing Compliance Requirements Benjamin A. Kranc Presented by: Benjamin A. Kranc 425 University Avenue Suite 200 Toronto, Ontario M5G 1T6 Tel: (416) Web: LinkedIn: ca.linkedin.com/in/benjaminkranc

2 IRPA/R: Immigration and Refugee Protection Act/Regulations ESDC: Employment and Social Development Canada (previously HRSDC) Service Canada(SC): Administers ESDC Programs TFWP Temporary Foreign Worker Program LMIA: Labour Market Impact Assessment (previously LMO) NOC: National Occupational Classification CEC: Confirmation Exemption Code IRCC: Immigration, Refugees and Citizenship Canada (formerly CIC) CBSA: Canada Border Services Agency IMP: International Mobility Program (LMIA-exempt work permits) NAFTA: North American Free Trade Agreement GATS: General Agreement on Trade in Services CCFTA/CPFTA/CCoFTA/CSKFTA: Canada Chile/Peru/Colombia/South Korea Free Trade Agreement [Coming Soon?: European Union/Trans-Pacific Partnership]

3 Require LMIA and Work Permit Requirements Set Out in IRPR s. 203 Require Work Permit; LMIA Exempt (International Mobility Program [IMP]) Intra-Company Transferees NAFTA, GATS, CCFTA, CPFTA, CCoFTA, CSKFTA Professionals Other e.g. Reciprocal Benefit, Significant Benefit, IEC, Other Work Permit Exempt Business Visitors Other Exemptions [Ongoing Employer Compliance]

4 Whether: A - *Work is likely to fill a labour shortage B - *Work offered at prevailing wages and appropriate work conditions C - Employer will make reasonable efforts to hire/train Canadians D - Work is likely to result in creation/transfer of skills and knowledge to Canadians E - Work is likely to result in job creation/retention F - Work is likely to affect any labour dispute [Reasonable efforts in past to fulfill previous commitments re C, D, E]

5 Various Issues: Substantially the same Genuineness [4 year limit now removed] Recruitment requirements 4 weeks from 2 2 sources plus job bank; 1 ongoing Filing Fee $1000 per position High Wage vs. Low Wage Transition Plan for High Wage Caps for Low Wage

6 Require LMIA and Work Permit Requirements Set Out in IRPR s. 203 Require Work Permit; LMIA Exempt (IMP) Intra-Company Transferees NAFTA, GATS, CCFTA, CPFTA, CCoFTA Professionals Other e.g. Reciprocal Benefit, Significant Benefit, IEC, Other Work Permit Exempt Business Visitors Other Exemptions

7 Intra-Company Transfer Canadian company affiliated with foreign company Can be < 50% E.g.: relative majority shareholder Employee works in foreign affiliate for 1 Year in Last 3 (except 6 months for Peru) Currently employed Contract Scenarios Capacity: Executive/Senior Manager/Specialized Knowledge Proprietary Knowledge Controlled in Canada Note: NAFTA/GATS/FTAs/IRPR Convergence Various issues, e.g.: Caps: 5-year for specialized; 7-year for managerial

8 Professionals NAFTA; e.g. Management Consultant GATS; industry specific, 90 day maximum Other Reciprocal Benefit Significant Benefit Further Possibilities

9 Designated list Each has specific requirements e.g. Bachelor s Degree, membership in a professional association, etc. Review NOC for considerations of profession Do not need Canadian licence for profession Need pre-arranged employment with Canadian company employment is often a contract for services No self-employment

10 List of approximately 60 occupations Some more commonly used occupations: Engineer Computer Systems Analyst Accountant Scientist (various types) Scientific Technician Management Consultant

11 GATS Engineers, Computer Specialists 3 months CCFTA Engineer, Computer Systems Analyst CCoFTA Negative list no Pharmacists, Performing Artists, etc. CPFTA Negative list no Pharmacists, Performing Artists, etc. CSKFTA Contract Service Supplier Independent Professional European Trade Agreement? Trans-Pacific Partnership?

12 Theory: Neutral Labour Market Impact Some formal programs, e.g.: International Experience Class Working Holidays Can be used by individual company Need not be one for one Need not be direct (i.e. Canada sends to Germany, Ireland sends to Canada) Evidence: Rosters of Transfers In/Out; Global Mobility Policy

13 Significant Benefit Last Resort Allows for Creative Solutions; e.g. consider impact, time frame, etc. Emergency Repair Provincial Programs [Alberta Construction Workers (formerly)]

14 Effective Feb. 21, 2015, Employers must: Pay $230 compliance fee Provide an offer of employment Provide specific company information Effective October 26, Must be done via employer portal Effect of (later) non-compliance Upon Audit: Possible sanctions

15 Require LMIA and Work Permit Requirements Set Out in IRPR s. 203 Require Work Permit; LMIA Exempt (IMP) Intra-Company Transferees NAFTA, GATS, CCFTA, CPFTA, CCoFTA Professionals Other e.g. Reciprocal Benefit, Significant Benefit, IEC, Other Work Permit Exempt Business Visitors Other Exemptions

16 IRPR ss. 186/187 Examples: Clergy Foreign Journalists Certain Entertainers Emergency Personnel

17 Remuneration must remain abroad Principal place of business must remain abroad Benefit inures to foreign company Consider aspects of work, international in nature, etc. International Business activity/not entering labour market Examples: Buying Canadian products or receiving training re goods Intra-company training Selling not to the general public meetings

18 EMPLOYER COMPLIANCE

19 Employers Due Diligence Requirement: Employing a Foreign National Without Authorization 2 Year Imprisonment/$50,000 Fine Aiding/Abetting/Counselling 5 Year Imprisonment/$100,000 Fine

20 Failure to Comply Must meet requirements of LMIA, Work Permit, and General Law Violations can include: Unapproved change of wages Breach of Provincial Employment Standards Failure to Maintain Records Therefore: Maintain Records: 6 Years, including: Wages Immigration Documentation Other Proactive Compliance Systems

21 Failure to Comply - Impact Non-compliance can lead to Publication on Black List Inability to Renew LIMAs and Work Permits 1, 2, 5, 10 Year and Lifetime Bans on Hiring Foreign Workers (new) Formerly 2 Year Bar Administrative Monetary Penalties (AMPs) up to $100,000 (new)

22 Inspection there is reason to suspect non-compliance (i.e. a tip was received); previous non-compliance; or random selection [25% chance] Employer Compliance Review Upon LMIA Application Ministerial Instruction Information re Violation of Specific LMIA

23 Three Factors to Determine Penalty: Type of Offence History/Severity Size of Business

24 Factor 1: Types of Violations Group A: Failure to demonstrate 6 years accuracy of work permit Failure to retain necessary documents Failure to comply with Compliance Review Group B: Failure to comply with applicable Federal/Provincial law Failure to provide foreign worker substantially the same wages and working conditions as set out in any application Failure to fulfill obligations (e.g. transition plan) upon which work permit was based Group C: Failure to keep workplace free from abuse Failure to establish that company is actively engaged in business under which employment was offered

25 Factor 2: Consider History/Severity Points Points are divided into 2 categories: History, and Severity For History: A or B first violation A or B violation beyond first 2 points C violations 1 point 3 points

26 For Severity: Employer derived economic benefit 1-3 points Financial harm to foreign national 1-4 points Abuse of foreign national 1 to 6 Negatively impact on labour market 1-4 points Deliberate attempt to mislead 6 points No attempt to mitigate violation 2 points No attempt to prevent recurrence 2 points Other factors to be listed 1-6 points

27 Factor 3: Size of Business For this, need to distinguish: Small Business: Fewer than 100 employees, OR Less than $5M in annual gross revenue Including Affiliates Large Business : Anything other than a small business

28 Example: Large company promised to try to hire/train Canadians as part of LMIA application. This is a second offence. This is a Group B violation History points: 2 Severity: Employer derived economic benefit 2 Financial harm to foreign national Abuse of foreign national Negatively impact on labour market 3 Deliberate attempt to mislead No attempt to mitigate violation No attempt to prevent recurrence 2 7 (Subtotal) Other factors to be listed Total: 9

29 Now (Finally), Assess Penalty: 1 point Type A Type B Type C Small Business Small Business N/A $500/No Ban $750/No Ban Large Business Large Business $750/No Ban $1,000/No Ban

30 5 points Type A Type B Type C Small Business Small Business Small Business $10,000/No Ban $35,000/No Ban $45,000/1 Year Ban Large Business Large Business Large Business $20,000/No Ban $50,000/No Ban $70,000/1 Year Ban

31 8 or more points Type A Type B Type C Small Business Small Business Small Business $100,000/5-10 Yr Ban $100,000/5-10 Yr Ban $100,000/5-10 Yr Ban Large Business Large Business Large Business $100,000/5-10 Yr Ban $100,000/5-10 Yr Ban $100,000/5-10 Yr Ban

32 Result: $100,000 Administrative Monetary Penalty 5 or 10 Year Ban Blacklist Non-renewal of existing work permits Some mitigating factors: (Voluntary Disclosure) Reasonable Efforts to Comply Unintentional Error/Promise to Redress Drastic Shift in Economy

33 Business licences /permits T2 Schedule 125 Income Statement Information, and, Schedule 100 Balance Sheet Information Commercial lease agreements, business permits, etc. Provincial/territorial employer and recruiter registration certificate/ licence Recruitment information Anti-abuse and whistle-blower protection policies/codes of Conduct/compliance policies Training polices and materials Payroll records Time sheets Pension and benefits enrollment documents Job descriptions Copies of work permits Documentation in relation to job creation, job retention, training or transfer of skills and knowledge, and Registration with provincial/territorial workplace safety/workers compensation clearance letter

34 Create policy to ensure that Foreign Worker Program is used only where necessary, (and follow all procedures in that regard) Implement a training plan documenting knowledge/skills transferred to Canadians by TFWs Appoint an Internal Compliance Officer accountable for, e.g.: Maintaining recruitment procedures Maintaining records and ensuring compliance in relation to changes in employment terms Verifying company support documentation Developing document retention practices Developing third party/vendor management polices Establish corporate protocols to respond to requests for Inspections and Compliance Reviews Maintain files containing key foreign worker information, document retention protocols, and centralized storage and retrieval processes (be prepared for timely ECR and Inspection response) Develop/circulate internal communications on anti-abuse or other compliance policies, as well as on whistle-blower processes to encourage credible reports from employees relating to complaints of abuse and the prompt and fair resolution of any complaint

35 Immigration, Refugees, and Citizenship Canada NOC Wages ESDC Foreign Worker Program

36 Canadian Corporate Immigration Ongoing Compliance Requirements Benjamin A. Kranc Presented by: Benjamin A. Kranc 425 University Avenue Suite 200 Toronto, Ontario M5G 1T6 Tel: (416) Web: LinkedIn: ca.linkedin.com/in/benjaminkranc