CANADA INTRODUCE CHANGES TO STRENGTHEN EMPLOYER ACCOUNTABILITY UNDER THE INTERNATIONAL MOBILITY PROGRAMby Jean-Noel Benhamou, Managing Partner
On February 9, 2015, Citizenship and Immigration Canada (CIC) published a Notice on their website announcing a significant and fundamental change to processing work permits under the International Mobility Program (IMP) which includes NAFTA professionals and intra-company transfers. Applications under the IMP do not require a Labour Market Impact Assessment (LMIA) or advertising to support a work permit application. Prior to the announced change, visa-exempt nationals submitted their work permit applications and documentation to the Canada Border Services Agency (CBSA), which typically adjudicated the application and issued the work permit immediately at the port of entry.
Effective February 21, 2015, employers intending to hire visa-exempt foreign nationals must first submit the following information to CIC in advance of the worker presenting himself (with a receipt and the completed documentation) to the CBSA Officer upon arrival, where the work permit will ultimately be issued:
- Employer business information via online Form IMM5802: “Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment,” including sufficient information to demonstrate that the applicant qualifies under the IMP http://www.cic.gc.ca/english/pdf/kits/forms/IMM5802E.pdf; and
- Payment of a $230.00 CAD employer compliance fee online.
In the same Notice, the CIC announced that, also effective February 21, 2015, a new fee applies for open work permit applicants in the amount of $100.00 CAD. This fee will be paid at the same time as the work permit processing fee and can be paid online.
This Notice announces one of several initiatives advanced over the past few months to crack down on noncompliant employers. In June 2014, the government of Canada announced a sweeping reform of its Temporary Foreign Workers Program (TFWP), which resulted in major changes for employers seeking to hire foreign nationals. One of the changes implemented was the creation of two separate programs, namely: (1) the TFWP, for temporary employment offers requiring a LMIA and (2) the IMP, for temporary employment offers that are exempt from the LMIA process
The IMP includes, among many others, intra-company transferees, International Experience Canada participants as well as workers eligible under NAFTA. The IMP is coordinated by CIC whereas the TFWP is led by Employment and Social Development Canada. Since these changes came into force, the main focus of governmental authorities has been reforming the TFWP, while the IMP had, up until recently, remained somewhat under the radar. The goal of the announced change is to establish a legal regime under which all employers, whether they are using LMIA-exempt foreign nationals or temporary foreign workers through the LMIA process that has determined that there are no Canadians available for the job, will face the same level of scrutiny in their hiring and treatment of foreign workers.
The new employer compliance fee of $230.00 CAD is in addition to the regular work permit application fee currently set at $155.00 CAD. The employer compliance fees collected are intended to offset the cost of introducing “robust employer compliance activities featuring inspections of thousands of employers.” When an inspection finds that an employer is non-compliant, the employer could face an administrative monetary penalty, a ban from hiring foreign workers, and, in serious cases, a criminal investigation and prosecution.
Employers will be exempt from paying the new compliance fee when the foreign nationals they wish to hire are themselves exempted from the payment of the regular work permit application fee. Further, in the event the work permit application is ultimately refused or if the employer withdraws the offer of employment before a work permit is issued, the compliance fee will be reimbursed to the employer, according to CIC.
The new $100.00 CAD fee for open work permit applicants will be paid at the same time as the regular work permit application fee current set, as stated above, at $155.00 CAD. The open work permit applicant fees are intended to offset the cost of new initiatives to improve data collection on the role of open work permit holders in the Canadian labour market, as well as increased promotional activities to encourage open work permit holders to apply for permanent residence.
Foreign nationals will be exempt from paying the new fee if they are exempted from paying the regular work permit application fee. CIC has also announced that the compliance fee will be reimbursed to the foreign national if the work permit application is ultimately refused or if the foreign national withdraws his/her application. As this fee applies to work permits that are not employer specific, the main streams of the IMP that are affected by this change include the working holiday portion of International Experience Canada, the Post-Graduation Work Permit Program, spouses or common-law partners of highly-skilled foreign workers and international students, and certain foreign nationals who are already in Canada waiting for the finalization of their applications for permanent residence.
CIC has also announced that an “Employer Portal” will be put in place in July 2015 to facilitate these new changes. Once this portal is in place, employers will be expected to submit their offers of employment electronically to the CIC.