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New Employer Immigration Compliance Obligations Effective September 26, 2022 – General Immigration



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The Government of Canada recently passed legislation to amend
the Immigration and Refugee Protection Regulations, which will be
effective on September 26, 2022. Some of these amendments expand
existing program policies and will enhance the protection of
foreign workers by setting new employer requirements and conditions
and improving the ability to hold employers accountable for
non-compliance with immigration laws.

Background

With the growing labour shortage across Canada, employers are
turning to foreign workers more and more in an effort to fill
record-high level of job vacancies in numerous sectors across the
country. Since April of 2022, the Government of Canada has
implemented a number of facilitative measures to various
immigration programs to help employers bring in more foreign
workers to meet their operational needs and help alleviate the
sustained labour shortages. Following the implementation of these
facilitative measures, the government has now announced new
regulatory amendments to the existing employer immigration
compliance regime to enhance the protection of foreign workers
against abuse and exploitation.

Overview of the New Obligations

The regulatory amendments include the following new employer
immigration compliance obligations:

  • Private Health Insurance: For employers who
    hire foreign workers via a Labour Market Impact Assessment (LMIA)
    through the Temporary Foreign Worker Program (TFWP), employers will
    be required to obtain and pay for private health insurance that
    covers emergency medical care for any period before the temporary
    foreign worker is eligible for provincial or territorial public
    health insurance.

    Since most provincial health insurance regimes impose a waiting
    period of a few months prior to foreign workers becoming eligible
    for public health coverage, it is important that employers make the
    necessary arrangements to provide private health coverage for
    emergency medical needs when planning for the arrival of the
    foreign worker or, in certain circumstances, when renewing a work
    permit under the TFWP. Employers are prohibited from recovering
    these costs from the foreign workers in any form, including through
    pay deductions or charge back clauses in their employment
    agreements.

  • Charging/Recovering Processing Fees: Employers
    will be clearly prohibited from charging and recovering government
    processing fees in relation to an LMIA application, the Employer
    Compliance Fee, and other fees related to recruitment. These
    prohibitions were previously mentioned in Employment and Social
    Development Canada (ESDC)’s policies on the TFWP, but had not
    been prescribed by regulation until now.

    The amendments also specify that employers must ensure that any
    recruiters they use do not charge or recover the above mentioned
    fees. As such, global mobility teams need to be aware of the new
    requirements for their relocation expense clauses.

    It is important to note that it is also prohibited to recover
    government processing fees for a Quebec Acceptance Certificate when
    hiring a temporary foreign worker for a job located in Quebec.

  • Health Care: Employers will be required to
    provide foreign workers with reasonable access to health care
    services when they are injured or become ill at the workplace. For
    example, ensuring there is a phone available to the foreign worker
    to call emergency services. This applies to work permit
    applications made under the IMP and the TFWP.

  • Employment Rights Information: Employers will
    be required to provide foreign workers with the most recent
    information about their rights in Canada, on or before the first
    day of work. Employers will be required to make this information
    available to the foreign workers throughout their period of
    employment in Canada. This applies to work permit applications made
    under the IMP and the TFWP.

  • Employment Agreement: Employers who wish to
    hire a foreign worker under the TFWP or the IMP will be required to
    provide foreign workers with a signed employment agreement that
    outlines the occupation, wages, and working conditions, on or
    before the first day of employment. As such, employers who send
    their employees to work in Canada on short term assignments will
    need to have secondment agreements in place prior to submitting a
    work permit application. Prior to this amendment, except in Quebec,
    employers were not required to submit employment agreements with
    all work permit applications. For example, it was possible for
    employers to finalize the employment agreement in accordance with
    the terms of an LMIA after it was approved. For intra-company
    transferee work permits, it was possible to simply include an
    existing employment agreement with the affiliate and outline the
    terms of the transfer to Canada in the Employer Portal.

  • Workplace Free of Abuse: Employers who hire
    foreign workers under the TFWP or the IMP are required to make
    reasonable efforts to provide a workplace that is free of abuse.
    The new amendments will add “reprisal” to the definition
    of abuse to respond to concerns of foreign workers fearing reprisal
    from employers, such as demotion, threats of demotion, disciplinary
    measures or dismissal, if they decide to report the employer’s
    possible non-compliance with the program requirements.

  • Increased Due Diligence during the LMIA Application
    Process:
    LMIA application process will be strengthened to
    ensure that all employers applying for an LMIA meet the program
    requirements in order to prevent foreign workers from entering an
    abusive workplace. Accordingly, employers who have not used the
    TFWP in the last six years will be assessed under additional
    requirements. ESDC will ensure that employers are not an affiliated
    to an organization that is ineligible to participate in the TFWP or
    in default of any amount payable for an administrative monetary
    penalty. Additionally, the processing of the LMIA applications may
    be suspended if there is reason to suspect that an employer is not
    complying with or has not complied with certain program conditions
    and that the employer’s failure to comply with any of these
    conditions would put at serious risk the health or safety of the
    foreign national.

  • Document Verification from Third Parties: ESDC
    and Immigration, Refugees and Citizenship Canada (IRCC) will have
    the authority to require documents from third parties, such as
    banks and payroll companies, to verify the employer’s
    compliance with the regulatory conditions, such as those relating
    to a foreign worker’s wages.

Conclusion

Employers must be aware of these new employer immigration
compliance obligations when deciding to hire temporary foreign
workers to mitigate risks in the event of an immigration audit or
inspection. Employers are also encouraged to consider how these
regulatory amendments will interact with their existing HR and
global mobility policies. If you have any questions regarding how
the new employer immigration compliance obligations may apply to
your company, please contact the authors or your regular Fasken
lawyer if you have any questions.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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