Changes to the Temporary Foreign Worker Program

Changes to the Temporary Foreign Worker ProgramIn 2010, a record 283,096 people were living in Canada as temporary foreign workers. In recent years, the Canadian government has greatly expanded the foreign worker program, most significantly through the introduction of the post-graduate work permit.

However, on April 1, 2011, regulatory changes came into effect that all temporary foreign workers and their employers will want to review. It is likely that these changes will reduce the attractiveness of the temporary foreign worker program to many

The four-year cap

The first significant change is the introduction of a four-year cap for how long a foreign worker can work in Canada. What is measured is not the days that someone actually works, but the period that his or her work permit authorizes. Once a foreign worker reaches the cap, he or she will not be allowed to participate in the temporary foreign worker program for four years.

It is beyond the scope of this article to go into detail about which types of foreign workers are affected by the cap. However, if the cap does apply to you, then not only will you not be able to enter into a new contract once your four years are up, you will also not be able to continue working for your current employer.

The four-year clock started ticking on April 1, 2011, so if you are encompassed by the cap, and want to stay in Canada for longer than four years, then you should start exploring more permanent options.

The genuineness test

The second change is that all employers wishing to hire a temporary foreign worker will now have to demonstrate the genuineness of the job offer. The four factors that will be considered are:

1. whether the job offer was made by an employer who is actively engaged in the business

2. whether the job offer is consistent with the reasonable employment needs of the employer

3. whether the employer is reasonably able to fulfil the terms of the job offer

4. whether the employer has shown past compliance with employment regulations

The substantially-the-same test

While the above two changes are certainly significant, the most significant change to the foreign worker program is the introduction of the STS test. Short for "substantially the same," the STS test involves an assessment of whether, during the two years prior, an employer has provided to foreign workers wages, working conditions and employment in occupations that were substantially the same as those items set out in the employer's offers of employment.

In order to conduct the STS analysis, the Canadian government may require employers to provide copies of payroll records, time sheets, employee contracts and other information.

The employer blacklist

Employers often ask if there are any consequences to them breaching the terms offered in a job offer or labour market opinion. The regulatory changes make it clearer than ever that the answer is "yes." Under the new regulations, employers are ineligible to participate in the temporary foreign worker program for a period of two years if it is determined that they have failed, without reasonable justification, to meet the STS requirements.

The practical implications of being ineligible to participate in the temporary foreign worker program are that all work permit applications by that employer will automatically be refused, existing foreign workers will be unable to extend their work permits, and the employer's name will be published on the Citizenship and Immigration Canada as being a company that is ineligible to hire foreign workers.

Prior to these changes, many employers and foreign workers regarded the labour market opinions and job offers contained in their work permit applications as being mere pieces of paper. The regulatory amendments should shatter that perception, and employers and foreign workers interested in continued participation in the foreign worker program need to start reviewing their previous applications and ensure past compliance.

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