Immigration Update – Summer 2014

July 7th, 2014 by

Citizenship and Immigration Canada (CIC) and Employment & Social Development Canada (ESDC) have been extremely active over the past year, and this summer will continue to see the implementation of new policies relating to the Temporary Foreign Worker Program (TFWP) and other programs. While it is impossible to provide a detailed analysis of each of the new rules within the confines of this Newsletter, following is a chronological summary of select recent and forthcoming changes, provided for informational purposes.

June 9 – Intracompany Transferees

Since changes to Canada’s TFWP were announced last summer, employers must pay close attention to the categories of foreign workers who may be brought to Canada.

One example is the Intracompany Transferee category, which allows multinational companies to move to Canada foreign employees from a related company abroad, who are managers or executives, or who possess specialized knowledge.

On June 9th, CIC released new rigorous guidelines, effective immediately, making it more difficult to demonstrate specialized knowledge. Following are some highlights:

• Workers with specialized knowledge must now demonstrate a “high degree of both proprietary knowledge and advanced expertise”;
• Proprietary knowledge means company-specific information that has not been divulged to the public;
• The skill or knowledge should be “highly unusual” in the industry and the company attempting to transfer the employee;
• The employee’s work should be critical to the company;
• The employee should be considered “key personnel” and not just highly skilled;
• The employee should receive an above-average wage that is consistent with his or her level of expertise, compared to a comparable Canadian wage. This salary requirement does not apply where the transfer is pursuant to any current or future free trade agreement with Canada.

The updated specialized knowledge guidelines may present a challenge for companies seeking to transfer employees to Canada. Employers and foreign nationals must be prepared to provide evidence that they meet the new eligibility standards.

June 20 – Overhaul of The TFWP

On June 20, Employment Minister Jason Kenney and Immigration Minister Chris Alexander announced significant reforms to the TFWP. The reforms, which took effect immediately, are primarily focused on low-skilled, low-wage occupations, but they also increase the government’s investigative and enforcement powers.

The current Foreign Worker Program is now reorganized and split into two groups: The new Temporary Foreign Worker Program (new TFWP), previously known as the Labor Market Opinion (LMO) process, will be administered by ESDC; and the International Mobility Program will be administered by CIC.

The new TFWP will be subject to stringent requirements to ensure employers give Canadian workers preference, with foreign workers considered a last and limited resort to fill vacant positions. Wage levels are replacing the National Occupation Classification as the main criterion for administering the new TFWP by distinguishing between “high-” and “low-” wage workers.

The LMO is being replaced by a new Labor Market Impact Assessment (LMIA) as the screening mechanism for employers seeking to hire temporary foreign workers. The LMIA will require that employers provide information on the number of Canadians who applied for the position, the number of Canadians interviewed, and an explanation as to why each was not hired. The LMIA fee is C$1,000, a considerable increase from the LMO fee of C$275.

With limited exceptions, employers seeking to hire high-wage temporary foreign workers will now be required to submit transition plans to demonstrate how they will increase efforts to hire Canadians.

The International Mobility Program includes the Intracompany Transferee category, referred to above, and entry processes under free trade agreements, as well as others exempt from the LMIA requirement, based on the competitive advantages and reciprocal benefits that Canadians are afforded in other countries.

Under this program, employers must include job offers in its applications. The program will be subject to a new compliance monitoring program, which will be funded by the addition of a $230 work permit fee. “Open” work permits will be subject to an extra $100 in fees.

Both ESDC and CIC will be empowered to ensure employers comply with rules under both new temporary work programs. One out of four businesses will be inspected each year for immigration program compliance. The government will have expanded authority to blacklist employers who have been suspended and are under investigation. Monetary fines will be increased to up to C$100,000 or five years’ imprisonment.

August 1 – Age of Dependency

Effective August 1, 2014, children aged 19 and over will no longer qualify for immigration benefits as dependents under any Canadian immigration program. Once the new rule is implemented, children aged 19 and older will be able to qualify for benefits as dependents only if they are financially dependent on their parents due to mental or physical disabilities. There will be no exceptions to the maximum age for full-time students.

Currently, Canadian citizens and permanent residents can sponsor a dependent child for permanent residence up to his or her twenty-second birthday, and temporary foreign workers may be accompanied or later joined by a child under the age of 22. CIC will continue to consider children aged 19 to 21 as dependents for applications submitted before August 1, 2014.

The new policy may complicate upcoming relocations to Canada for foreign workers who wish to travel with young adult children. After August 1, children over the age of 19 will be regarded as independent applicants and will have to qualify for status and apply separately to join their parents in Canada. For example, if such individuals intend to study in Canada, they must be able to evidence enrollment in an approved program and financial means to support their tuition. For permanent residence applications, children 19 years old and older will be excluded.

Long Range Future Planning

Commencing April 1, 2015, some foreign nationals working temporarily in Canada will be required to cease working and depart the country and may not be able to work in Canada again for up to four years. These limits on work duration apply to non-exempt foreign nationals who were approved for temporary work permits on or after April 1, 2011 and who have worked in Canada for a cumulative period of four years since the work permit was issued. Not included in the cumulative four-year limitation are any periods of more than one month spent overseas or on an authorized work break such as parental leave and extended unpaid leave.

The Immigration Law group at Devry Smith Frank, LLP can assist employers now to develop strategies to meet future staffing needs in light of the current and upcoming changes. We can provide advice and support on compliance and record keeping obligations, as well as preparation of applications which meet the new specialized knowledge guidelines and new LMIA requirements.

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