On May 4, 2013, Citizenship and Immigration Canada (CIC) began accepting applications under the “new and improved” Federal Skilled Worker Program.
By way of background, the Federal Skilled Worker Program (FSWP) is one of the Government of Canada’s main permanent immigration programs. Under this program, applicants are selected based on a points system that assesses applicants’ overall capacity to adapt to Canada’s labour market, based on factors which include: age, education, work experience, proficiency in Canada’s official languages and other criteria that have been shown to help immigrants become economically established in Canada. In June 2012, the Government placed a temporary pause on most new applications to the FSWP while they sought to re-design the program, with the goal of moving towards a faster, more flexible immigration system.
Over the past several months, the CIC has released details of the new FSWP, which include a number of significant changes from the program that was previously in place. Key changes include:
If you would like to discuss your options for a Permanent Residence Application under the Federal Skilled Worker Program, or any other Canadian or US immigration matter, we invite you to contact the Bomza Law Group at 416 598 8849.
On April 29, 2013, Canada’s Minister of Human Resources and Skills Development, together with the Minister of Citizenship, Immigration and Multiculturalism, announced several major reforms to the Temporary Foreign Worker Program (TFWP). These changes, some of which have been implemented with immediate effect, are intended to afford greater opportunities to Canadians by encouraging companies to recruit and train Canadians to fill vacant positions, while limiting the employment of foreign workers in Canada to situations where there are acute labour and skills shortages.
As part of this announcement, the Government has introduced the following key changes:
1. Immediate Suspension of the Accelerated Labour Market Opinion Process
Perhaps the most notable among these reforms is the immediate suspension of the Accelerated Labour Market Opinion (A-LMO) process. The A-LMO initiative was originally introduced by the Government a year ago to address excessive processing times for LMO applications (which were reaching upwards of 16+ weeks in some provinces). The A-LMO initiative, which was available to employers who had previously been issued at least one LMO in the previous two years and who were seeking to fill a high-skilled occupation, facilitated expedited processing (in 10 business days or less) by allowing companies to submit a more simplified application. As part of the A-LMO process, companies were also required to sign off on a series of attestations, confirming that they had met all standard requirements of the LMO process (such as mandatory recruitment efforts) and promising to participate in a post-compliance review at a later date.
With the immediate suspension of the A-LMO process, companies will need to include much more documentation, including proof of business establishment and recruitment efforts at the time of filing each application. This will result in more detailed reviews by Service Canada officers for each application and as such, is anticipated to result in significantly longer processing times.
2. Immediate Elimination of Wage Flexibility Provision
In 2012, the Canadian government implemented a new provision that provided companies with flexibility to pay foreign workers a wage that is up to 15% less than the reported prevailing wage for the industry where it could be demonstrated that the reported wage did not accurately reflect the actual wage earned by Canadians in the industry and region. In recognizing that wages can sometimes vary within niche industries and markets, the Government afforded companies flexibility to ensure that foreign workers were paid a wage that was comparable to that of Canadians working in similar positions in the industry and region. Effective immediately, this provision has been eliminated and all companies are now required to pay foreign workers at least the prevailing wage as reported in Service Canada’s national and provincial databases, regardless of the actual wages earned by Canadians in the relevant sector.
3. Introduction of new Application Forms and Transition Plan Requirements
In an effort to ensure that companies are not using the Temporary Foreign Worker Program to facilitate the outsourcing of Canadian jobs, new application forms are expected to be released, including questions to target potential outsourcing situations. At the same time, companies will now be required to provide detailed information on their plans to transition to an all-Canadian workforce instead of relying upon foreign workers.
4. Increase in the Government’s Authority to Suspend and Revoke LMOs and Work Permits
Amidst allegations of widespread misuse of the temporary foreign worker program, the Canadian government has announced its plans to increase the Government’s authority to suspend and revoke both work permits and Labour Market Opinions where it has been found that the program has been misused. Compliance reviews and investigations are expected to be ongoing to ensure full compliance and discover instances of program misuse.
5. Limit to Language Requirements in Job Postings
Effective immediately, the only languages that may now be identified by companies as “required” languages for a particular position in Canada are French or English. While some companies may find knowledge of a third language to be advantageous for a particular position, they may no longer require such knowledge as a means to hire a foreign worker.
6. Introduction of Application Fees for LMO Applications and Increased Fees for Work Permit Applications
Further to the release of Canada’s 2013 Federal Budget, the Government concluded its Monday afternoon announcement by confirming its intention to implement additional application and processing fees. LMO applications, which had previously been processed free-of-charge, will soon require an application fee from the employer. Similarly, government fees for work permit applications – which are typically paid by the foreign worker and are currently set at CAD$150 – are expected to increase. Full details on when the increases will become effective and the precise amount of each fee are expected to be forthcoming.
The above reforms will apply to all occupations, with the exception of the Seasonal Agricultural Worker Program and other primary agricultural occupations. Employers seeking to hire foreign workers in these occupations will be subject to the reform that will increase the Government’s authority to suspend and revoke work permits and LMOs if they are being misused but will be unaffected by the remaining reforms, as there are proven acute labour shortages in this industry and the unfilled jobs are truly temporary.
Moving forward, it is recommended that all companies plan their anticipated immigration needs far in advance and, where an LMO may be required, commence the recruitment and application process as early as possible. Companies are also encouraged to develop a formal plan or policy to transition to a Canadian workforce, if one is not already in place.
Human Resources and Skills Development Canada (HRSDC), the governmental body responsible for developing, managing and delivering social programs and services in Canada as well as for protecting Canada’s labour market, has made recent, unannounced changes to its directives for the processing of Labour Market Opinion applications. Specifically, HRSDC has implemented changes to the minimum advertising and recruitment efforts that must be conducted by employers seeking to hire a foreign worker in Canada.
As part of the LMO process, all employers are required to conduct recruitment for a minimum of 14 calendar days in the 3 months immediately preceding the date of the application to appropriately test the local labour market and demonstrate that they have been unable to find a suitably qualified Canadian to fill the position before looking to hire a foreign national. The scope of advertising required is dependent on the nature of and skill level of the position.
Former Recruitment Requirements
Previously, companies seeking to fill a professional or management-level position were required to advertise either on Service Canada’s Job Bank or conduct similar recruitment activities consistent with the practice within the occupation and industry. Meanwhile, companies seeking to fill a technical or skilled trade occupation were required to do both. In conducting “similar recruitment activities consistent with the practice within the occupation”, employers have previously relied upon internet job sites, industry journals and newspapers, as well as professional networking sites, company websites, and external headhunting firms or recruitment agencies who are able to conduct industry-specific and executive searches while maintaining a level of discretion for the company (particularly relevant for some companies seeking to hire senior executives).
The New Requirements
With HRSDC’s recent changes, the minimum requirements have become more stringent, particularly when it comes to an appropriate form of recruitment outside of Service Canada’s Job Bank website. Specifically, HRSDC now requires all recruitment to be conducted in a public medium to provide the broadest level of exposure of the vacancy to Canadian citizens and permanent residents:
1. Management and Professional Occupations – NOC Skill Type 0 and Skill Level A
To meet the minimum advertising requirements set by the Program, employers must conduct public advertising through one or more of the following methods:
The advertisement must be posted:
2. Technical and Trade Occupations – NOC Skill Level B
To meet the minimum advertising requirements set by the Program, employers must conduct public advertising through the following methods:
The advertisement must:
If HRSDC determines that additional advertising may yield more results from qualified Canadians, they may also require the company to advertise in more locations or for a longer duration.
Proof of Advertising
The above advertising requirements apply for all LMO applications, including those filed through the new Accelerated LMO (A-LMO) initiative. Employers are required to keep records of all recruitment efforts (including copies of advertisements as well as results of their efforts such as applications and notes from the reviewing HR personnel) for a minimum of 6 years. HRSDC may request this information in processing future LMO applications or compliance reviews.
The Department of Homeland Security, through U.S. Citizenship and Immigration Services, recently issued a new edition of Form I-9 on March 8, 2013. The previous edition expired on August 31, 2012, but employers had been allowed to use the expired form while the new edition was being produced. Employers should now begin using the March 8, 2013 form, although the two previous editions (forms dated 02/02/09 and 08/07/09) will still be deemed acceptable until May 7, 2013.
U.S. employers are required to complete Form I-9 upon hiring a new employee (or rehiring a former employee in certain circumstances) to verify the identity and employment authorization of that individual for employment in the United States. The Immigration and Nationality Act provides that it is unlawful for a person or other entity to hire for employment in the United States "an alien knowing the alien is an unauthorized alien" or to hire for employment in the United States an individual without complying with the Act's employability verification requirements. The Act's verification requirements, which are embodied in the Form I-9 process, provide that an employer must attest that an individual is not an unauthorized alien by examining documentation that establishes the individual's identity and employment authorization. A list of acceptable documents for purposes of verification is located on the last page of the new Form I-9.
An employer's Form I-9s are subject to being audited by U.S. Immigration and Customs Enforcement ("ICE"). Penalties and fines for substantive or uncorrected errors on Form I-9s can range from $100 to $1100 for a first offense. Similar penalties can also be imposed for failure to complete Form I-9. Thus, compliance with the Immigration and Nationality Act through proper completion of Form I-9 is an important process for every U.S. employer.
On March 21, 2013, U.S. Customs and Border Protection announced that it had submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully granted entry into the United States for a temporary period.
Canada’s federal government has released its budgetary plans for 2013. In it, the government has announced that there will be changes made to the Temporary Foreign Worker Program, which is the program that administers Labour Market Opinions.
The new selection system for the Federal Skilled Worker Program (FSWP) will take effect on May 4, 2013 at which time the program will re-open for applications, Citizenship, Immigration, and Multiculturalism Minister Jason Kenney announced today.
Citizenship and Immigration Canada (CIC) has proposed to introduce a Temporary Resident Biometrics Project, commencing in the Fall of 2013. Under this new project, nationals of certain countries will need to have their biometrics (including fingerprints and a digital photograph) taken in order to apply for any temporary resident visa, study permit, or work permit. Children, the elderly, and government officials and their family members travelling to Canada on official business may be exempt from this new requirement.
Today Citizenship and Immigration Canada (“CIC“) announced that effective January 1, 2013 skilled temporary foreign workers will be able to transition to permanent residence faster than ever before. The Canadian work experience requirement of the Canadian Experience Class (“CEC“) is being reduced from 24 to 12 months.
The TN is a work permit that allows Canadian citizens to legally work in the United States for a US employer or client. Canadian citizens are eligible for a TN work permit if they will be entering the US to work in a profession that is listed in Appendix 1603.D.1 of the North American Free Trade Agreement (NAFTA), and meet the experience and/or educational requirements for the profession per NAFTA requirements.
The United States Transportation Security Administration (TSA) has announced that its Pre✓ (pre-check) lanes are to be extended to Canadian NEXUS members.
For further information with respect to US and Canadian immigration or to find out if you or a company employee is eligible for temporary or permanent relocation to Canada or the US, we invite you to contact our experienced immigration lawyers and attorneys by contacting the Bomza Law Group at:
1-800-993-9971 or by clicking here: “Contact Us”.