Agenda. Part I: Basic Principles and Terminology. Part II: LMIA and Employer Compliance Review

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2 Agenda Part I: Basic Principles and Terminology Part II: LMIA and Employer Compliance Review Part III: The Impact of NAFTA/GATS and the Canada European Trade Agreement Part IV: Detailing the CETA 2 2

3 BC Labour Market Outlook * published by Work BC More than 935,000 openings are expected in British Columbia in the decade Labour supply and demand are expected to grow at approximately 1.2% per year for the next 10 years 75% of jobs will require a post secondary education, either college or Trades Training or a university degree By 2024, 68% of job openings will come from replacement demand due to retirement and death 3 3

4 BC Labour Market Outlook * published by Work BC (cont d) Issue How will these job openings be filled? If the available domestic supply falls below the demand in a particular sector, employers look at the availability of foreign workers The admissibility of foreign workers is the legal responsibility of the Federal Government The policy approach of the Federal Government when it issued the revamped Temporary Foreign Worker Program in July 2014 is set out at p. 10 of Policy Document The admission of Temporary Foreign Workers is a last and limited resort to allow employers to bring foreign workers to Canada on a temporary basis 4 4

5 Context: Where do Foreign Workers fit into the Immigration Scheme Rights of Canadian Citizens and Permanent Residents Canadian citizens and every person registered as an Indian under the Indian Act have an absolute right of entry (s. 19) Permanent residents of Canada have a qualified right of entry Can lose PR status: Conviction for a serious criminal offence Entered fraudulently Reported for misrepresentation Failed to maintain PR status: you must be physically present for 730 days in a five year period (e.g. work transfer, multinational firm) 5 5

6 Foreign Workers are a Subset of the Temporary Resident Classification All temporary residents must report to a Canadian Port of Entry on arrival Must be entering for a temporary purpose as a worker, student or visitor Demonstrate they will leave Canada at the end of their stay Temporary Resident Visa ( TRV ) is required by a significant number of foreign nationals A specific list of countries are exempt from TRV under R. 190 which is subject to change at the discretion of the Federal Government 6 6

7 Permit vs. Temporary Resident Visa Permit allows a person to visit, work or study in Canada Permits are issued electronically at the Port of Entry Visa: Formerly a stamp impression but now a scanned impression placed in the foreign national s passport by a visa officer at a Canadian consulate, High Commission or Embassy No TRV then no entry even with valid work permit unless entering Canada from contiguous territory such as the US, St. Pierre or Miquelon 7 7

8 TRV Exempt Countries Examples Nationals of Western European countries (e.g. France, Belgium, Switzerland) The United States of America Australia New Zealand Japan Singapore South Korea 8 8

9 Work Permits Work an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents Work Permits written authorization issued by a diplomatic post or now more likely a letter issued by a diplomatic post that advises the bearer to present the letter to an officer at the Port of Entry for issuance of the work permit. In Canada, extensions filed through CPC Vegreville * Can work without a permit in specifically enumerated cases under s. 186/187 of Regs most common is business visitor 9 9

10 Implied Status Provided an application for a work permit extension is filed at CPC Vegreville before the existing work permit expires, then the person has implied status to remain in Canada to work until a decision on the extension is made DO NOT LEAVE Canada on implied status 10 10

11 PART II LMIA New labour Market Impact Assessment ( LMIA ) Process for bringing Temporary Foreign Workers to Canada 11 11

12 Labour Market Impact Assessment ( LMIA ) Terminology Formerly referred to as the Labour Market Opinion ( LMO ) Process was revamped significantly in July 2014 In most cases an LMIA will be required Unless an exemption applies from the LMIA process, no work permit will be issued until the Canadian employer has obtained labour certification for the temporary foreign worker by way of an LMIA 12 12

13 LMIA, Generally/Failure to Comply An obstructive process so look for an LMIA exempt category Do not ignore LMIA process and simply bring in the worker Working without authorization is a non compliance violation once unlawful worker leaves Canada, the violation ceases but an officer may bar issuance of work permit for 6 months on re-entry Severe consequences for work without authorization: Individual is subject to removal by exclusion order which means unable to return to Canada for one year; if there is an established allegation of misrepresentation, a two year ban will be imposed 13 13

14 Sanctions Against Employees Types of Removal Orders Exclusion Order 1 or 2 Year Bar Deportation Order Permanent Bar Departure Order For loss of Permanent Resident Status Note: Work violations result in the exclusion order but the failure to obtain permission to return to Canada while under exclusion will result in a permanent bar through removal order 14 14

15 Sanctions Against Employers IRPA Section 124 Unauthorized employment of Foreign Nationals: Maximum of a $50,000 fine and a term of imprisonment for a term not more than two years or both an employer who fails to exercise due diligence to determine whether employment is authorized under this Act, is deemed to know that it is not authorized 15 15

16 LMIA Process 3 Step process required to hire a foreign national: 1. The employer applies to Employment and Social Development Canada ( ESDC ) for validation of the offer of employment 2. If the employment offer is validated an LMIA will be issued 3. The foreign national applies for the work permit attaching the LMIA 16 16

17 LMIA Requirements that existed in the age of the LMO that still apply: The job offer must be genuine (as set out in R200(5)) and have a neutral or positive effect on the labour market (as set out in R. 203(3)) Specifically, a job offer will have a neutral or positive effect if it can be established that: Jobs are created for Canadians; Skills and knowledge are transferred; A labour shortage is alleviated; The wage offered is consistent with the prevailing wage rate for the occupation; and The employer made reasonable efforts to hire or train Canadians or permanent residents

18 LMIA (cont d) Federal Court of Canada Case: 2013 FC 512, The Murray River Decision The Honourable Mr. Justice Zinn held: 1. It is not necessary that an applicant meet every one of the factors listed 2. The decision maker must examine and assess each factor and then perform a weighing exercise to decide whether the LMO will issue 3. With respect to the accuracy of recruitment efforts an employer must be given some latitude in its hiring even within the TFWP 18 18

19 LMIA (cont d) Federal Court of Canada Case: 2015 FC 1075, The Canadian Reformed Church of Cloverdale B.C. Decision In allowing an application for judicial review and ordering another officer to reconsider the assessment made by ESDC, The Honourable Mr. Justice O Reilly stated (at para. 11): The officer did not determine whether the Church had actually made reasonable efforts to hire or train a Canadian in accordance with the regulatory standard but rather rejected the assessment for the solitary reason that the advertisements lacked a business address. The officer appears to have treated the guidelines as mandatory obligations. 19

20 The new LMIA Labour certification was revamped by the Federal Government in July 2014 and designed to crack down on the use of temporary foreign workers by employers and to emphasize the Canadians first policy Noteworthy changes brought by the new LMIA: Using wages rather than the National Occupations Classification to classify position Cap on low-wage positions Refusing applications in areas of high unemployment Reducing the duration of work permits Transition plans required for temporary high-wage workers 20 20

21 Overhauling the Temporary Foreign Worker Program ( TFWP ) published July 2014 the TFWP is no longer being used as it was intended to be used as a last and limited resort to allow employers to bring foreign workers to Canada on a temporary basis to fill jobs for which qualified Canadians are not available 21 21

22 Overhauling the TFWP (cont d) Cap to limit the proportion of low wage TFWs a business can employ Cap is designed to restrict access to TFWP Employers with 10 or more employees are subject to a cap of 10% on proportion of workforce consisting of low wage temporary foreign workers as of July 1, 2016 Cap applied per worksite and is based on total hours worked 22 22

23 Overhauling the TFWP (cont d) Restrictive Approach An LMIA application will not be processed if all the following criteria are in play: Applying in an economic region with an annual unemployment rate of over 6% Seeking an LMIA in Accommodation/Food Service or Retail Sales Seeking an LMIA for light duty cleaners, cashiers, construction labourers, janitors, etc

24 Primary Categories under the New TFWP 1. Low wage category: if the prevailing wage (the statistical median wage) is below a specific hourly rate, as calculated by each Province, it is low wage In British Columbia the median wage is $22.60 per hour as of April 29, High wage category: in BC above $22.60 per hour 3. Primary Agricultural Stream (general farm workers, harvesting labourers, nursery and green house workers includes seasonal agricultural workers from Mexico and the Caribbean) 4. Live-in caregivers (unchanged) 24 24

25 Primary Categories under the New TFWP (cont d) 5. Highest demand workers (i.e. in demand skilled trades) 6. Highest paid (top 10% of wage earners by province) In BC the top wage amount is $41.63 per hour *as of April 30, 2016 (subject to change) 7. Short duration (120 days of employment or less) Fast track 10 day processing time for categories 5, 6 and 7 Outside of categories 5, 6 and 7 standard processing times will take at least 3 months. It will be 8 to 10 weeks after filing the LMIA before ESDC calls the employer 25 25

26 Additional Changes to the LMIA Process Information provided by employers now must include: Actual number of Canadians that applied for the job Number of Canadians interviewed Crucially, why a Canadian was not hired for the job The duration of low wage workers work permits will be limited to one year High wage workers receive two year permits For high wage position (above $22.60 per hour) most employers need to provide a transition plan and employers have to invest in skills training to provide for employment opportunities for Canadians unless employer will support permanent residence application 26 26

27 Changes to Advertising Requirements Minimum advertising requirement for most employers: A minimum of 4 weeks advertising that must continue up to the point of approval of the LMIA Government of Canada s Job Bank and at least 2 or more recruitment sites consistent with normal practice for the occupation. We recommend advertising nationally on at least two sites such as monster.ca or Workopolis Advertisements must include the company name, address, title of position, job duties, location, terms of employment, education and work experience requirements and, most importantly, minimum wages for the position Failure to include all elements of the advertising requirements may lead to rejection 27 27

28 Changes to Advertising Requirements (cont d) Advertising requirements vary by profession: Example: for on-farm primary agricultural workers, advertising is 14 days At the moment, there is no advertising requirements for Digital Media Occupations in BC and Ontario which includes Software Engineers or Graphic Designers Check Service Canada guidelines every time you apply 28 28

29 Fees For labour certification between 1973 and 2013 there was no charge Between April 2013 and July 2014 it was $275 Now, the fee per application is $1,000. No refunds if refused

30 Change Implemented in April 2011 R. 200(3)(g) No work permit will be issued: If a foreign national has worked in Canada for one or more periods totalling four years unless: A period of 48 months has elapsed since the day on which the foreign national accumulated four years of work The foreign national intends to perform work that would create or maintain significant social cultural or economic benefits or opportunities for Canadian citizens or permanent residences The foreign national intends to perform work pursuant to an international agreement (such as NAFTA) - the way around the 4 year cap on work permits (e.g. NAFTA Intra Company executive) 30 30

31 The STS Regulation R. 203(1)(e) Imposes on the employer at the request of an Immigration or Service Canada officer, an obligation to demonstrate that in the six year period before seeking the LMIA it had provided to all foreign workers in its employ in the same occupation as that set out in the foreign national s offer of employment and with wages and working conditions that were substantially the same as but not less favourable than - those set out in the offer of employment unless the failure was justified 31 31

32 The STS Regulation (cont d) R. 203 (1.1) A failure is justified if it resulted from: a. A change in federal or provincial law; b. A change to the provisions of a collective agreement; c. The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the business of the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer; 32 32

33 The STS Regulation (cont d) R. 203 (1) A failure is justified if it resulted from (cont d): d. An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer provided compensation or if it was not possible to provide compensation, made sufficient efforts to do so to all foreign nationals who suffered a disadvantage as a result of the error; e. An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or if it was not possible to provide compensation, made sufficient efforts to do to all foreign nationals who suffered a disadvantage as a result of the error; f. Circumstances similar to those set out in paragraphs (a) to (e ); or g. Force majeure 33 33

34 The STS Regulation (cont d) R. 203(5) If an officer determines that an employer did not provide the same occupation or wages and working conditions that were substantially the same as those offered, Service Canada will notify the employer and add the employer s name to the blacklist R. 200(3)(h) The effect is to ban foreign worker hiring for two years from date of the determination 34 34

35 The Employer Compliance Review Changes in 2011 followed by further changes in 2013 and 2014 make employer obligations on hiring temporary foreign workers comprehensive Methods to verify Employer Compliance: An inspection (after the issuance of a positive LMIA on or after December 31, 2013); An Employer Compliance Review (As part of an LMIA application); and/or A review under Ministerial Instruction (when ESDC receives new information that may justify revocation for policy reasons. See Appendix I 35 35

36 Is LMIA the only option? No but LMIA exempt work permits now demand the employer pay a $ fee in advance of seeking the LMIA exempt work permit Alternatives to the LMIA process which leads to work permit issuance: NAFTA General Agreement on Trade in Service (GATS) Immigration Regulation 205 (significant benefit) CETA Other Free Trade Agreements 36 36

37 North American Free Trade Agreement (NAFTA) and Chapter 16 NAFTA January 1, 1994 United States, Mexico and Canada Abolished tariffs and other trade barriers Chapter 16 NAFTA deals with the temporary entry of selected business persons Category of business persons (that are LMIA Exempt): Business Visitors Professionals Intra-company transferees Traders and Investors 37 37

38 Permissible NAFTA Business Visitor Activities Consultation/business meetings Contract negotiations Sales negotiations Research Participation in educational activities Business conventions or seminars 38 38

39 Permissible NAFTA Business Visitor Activities (cont d) International business activities related to research and design Growth, manufacturing/production, marketing, sales, distribution After sales service and general service No work permit required for business visitors 39 39

40 NAFTA Professionals Provide pre-arranged professional services: As salaried employee or By contract between the person and the Canadian employer or the person s company and the Canadian based employer Only about 60 professional occupations qualify. Must be performing services in Canada in their profession NAFTA Professionals do require a work permit Professionals may receive a work permit for up to three years at the discretion of the immigration officer 40 40

41 NAFTA Intra-Company Transferees Foreign Nationals employed by US or Mexican enterprise as a manager or executive or who possesses specialized knowledge to be transferred to the parent, branch, subsidiary or affiliate to provide services in a similar capacity (*But employed at least one year in the past 3 years by the foreign entity) Intra-company transferees are exempt from the LMIA process, but require a work permit Validity periods vary for work permits could be engagement specific, or range from 1 to 3 years Maximum validity period is 7 years for executives and managers 5 years for specialized knowledge workers Open for new companies to transfer an executive, manager, or person with specialized knowledge 41 41

42 GATS The General Agreement on Trade in Services permits temporary entry of business persons in 3 categories business visitors, intra company transfers and professionals Business visitors and intra company transfers entering under GATS qualify under general immigration Regulations s. 186 and s. 205, respectively However, the professional category is limited to 9 occupations and 90 days of entry within 12 months The 9 occupations include: engineer; agrologist; architect, forestry professional; geomatics professional; land surveyor; foreign legal consultant; urban planner; and senior computer specialist

43 Regulation 205 Permits entry by foreign workers on LMIA exempt work permits if the work would create or maintain significant social, cultural or economic benefits or opportunities for Canadians or permanent residents Typical examples: intra-company transferees self employed worker emergency repair personnel 43 43

44 CETA September 26, 2014 the Canada European Free Trade Agreement signed Not yet implemented Trudeau announced February 19, 2016 that the likelihood of implementation is very promising Provides for labour mobility amongst the signatories Will permit the entry of key personnel from European signatories Key personnel will include managers, investors, inter-corporate transfers, and independent professionals who are self-employed 44 44

45 Other Free Trade Agreements Chile Peru Colombia Korea All have labour mobility clauses 45 45

46 Questions? 46 46

47 SEPTEMBER 26, 2014 Free Trade Agreement Signed Comprehensive Free Trade Agreement Trade in goods Trade in services Trade in investments Government procurement Dispute settlement Tariff and non tariff barriers Intellectual property protection Sustainable development coordination 1 st FTA concluded between the EU and a G7 country In the context of the commencement of the EU / USA FTA negotiations in July, 2013 Could it result in the Canada / EU FTA being superseded by a NA / EU FTA the way the Canada / US FTA (1987) was superseded by NAFTA (1994)? 47

48 Mobility Rights Primer Must comply with each country s immigration laws Visa requirements are not a violation of the agreement Work permits will more than likely be required Expedited processing for the 8 categories of business travelers operating in the 11 recognized fields of business activities Each EU country and Canada will exchange entry and exit information this enhancing enforcement capacities Mutual recognition of professional qualifications 48

49 Mobility Rights Under CETA Eight categories of business travelers Business travelers for investment purposes Investors Intra-corporate transferees Senior personnel Graduate trainees Contract service providers Independent professionals 49

50 Mobility Rights Under CETA Short Term Visitor Eleven categories of recognized commercial activities Meetings and Consultations Research and Design Marketing Research Training Seminars Trade Fairs and Exhibitions Sales Purchases After Sales or After Lease Service Commercial Transactions Tourism Personnel Translation and Interpretation 50

51 Mobility Rights Be Advised Entry into Canada only one set of rules Entry into the EU 28 sets of rules Not the same rules from one country to the next Many countries have issued reservations Requires a pre-travel verification Exemptions for key personnel 37 categories of activities for independent professionals 51

52 Mutual Recognition of Professional Qualifications Goal To ease the mutual recognition of professionals from one jurisdiction to another Very complex Agreement is negotiated by the Federal government Professional are governed under provincial legislation and self regulated entities Quebec example with France Mutual Recognition Agreements (MRAs) Professional order to professional order Basic professional qualification evaluation 52

53 Next Steps The Route to January 1 st, 2017 Translation into the 22 other languages of the EU Approval by the Council of the European Union Approval by the European Parliament Approval by the Parliament of Canada (not formally required) Implementation act by the Parliament of Canada Implementation acts by each province of Canada Not sure at this stage whether approval is required of EU Member States but at this time expectation is that no approval is required 53

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