By Amelia Chan, CHRP

The Canadian government is set to introduce new rules to regulate temporary foreign workers in Canada. The rules, which marks the first time consistent guidelines have been created for immigration-related departments and employers of temporary foreign workers, aim to protect foreign works by ensuring equal and fair treatment. In addition, the formalizing of these new rules brings the ‘temporary’ in temporary foreign workers to the forefront.

Citizenship and Immigration Canada (CIC) in cooperation with Human Resources and Skills Development Canada (HRSDC) and the Canada Border Services Agency (CBSA) will be implementing the following changes starting on April 1, 2011: 

• Four year cap on work permits
  Foreign workers will only be allowed a maximum four year work permit period at one time.  Foreign nationals are required to return to their home country for another full four years before being eligible to apply for subsequent Canadian work permits.  There will be no reprieve for individuals on a work permit awaiting their permanent resident status approval.
• Additional requirements for Labour Market Opinions (LMO)
  All Labour Market Opinions issued by HRSDC will have a validity period which expires (generally after six months).  If a foreign national does not apply for a work permit within the applicable time period, the employer will need to obtain a new LMO.  There is also an indication that LMOs will be issued for shorter periods of time than in the past.
• Genuineness of employment offer
  Officers will be required to review the genuineness of all foreign worker applications — whether LMO oriented or exempt.  The employment offers will be reviewed more vigorously and subject to greater scrutiny before a foreign worker application is approved.
• Two year ban for non-compliant employers
  Canadian employers who are found to be non-compliant with immigration or legislative requirements will be banned from employing foreign workers for two years.  This ban may apply over and above the current non-compliance penalty of a potential $50,000 fine and/or imprisonment.

What this means for Canadian employers
For most employers, this is simply reinforcing their usual standard operational procedures.  Those organizations that have astute human resources professionals just need to make sure their records are up-to-date and the HR plans are on track.  Managers who have foreign workers need to be more cognizant of their labour and resource planning relative to these particular employees.  If the overall plan is to find out whether the foreign worker will be a fit in the long run, a decision to support the individual’s permanent residency may need to be included or moved along quicker.  It is especially important for key management to be involved in the planning process of their work permit holders otherwise internal expertise and company investment will be lost.

What this means for temporary foreign workers
Those individuals who are on temporary work permits need to make a decision about their immigration status as soon as possible.  With the immigration queues for work permit extensions and permanent applications growing longer, it is vital for those who intend to stay in Canada permanently to start their applications sooner.  The days where work permits were extended for long periods of time or with relative ease is over.  The decision for the foreign worker to return home will not have much leeway for the employer or employee as the four year caps will be firm.  There are quite a few programs which foreign nationals may apply for Canadian permanent residency – the best options will depend on the individual’s eligibility and circumstances.

The Canadian government is encouraging permanent migration with these new regulations. By taking a look at our economy and growth rates, it is clear that temporary workers and immigrants will continue to play a large role in our future.  Canada is still a very welcoming nation for foreign nationals but it has realized that they want people to come here and make the decision to stay sooner rather than later.  Whether a temporary work permit is viewed as a short-term assignment or the first step towards Canadian permanent immigration, these rules will require the employer to play a more active role in its workforce planning and talent management.

More details on these regulation changes are available in the Canada Gazette.

Amelia Chan, CHRP, CICC, is an HR and immigration consultant who specializes in skilled foreign workers. She can be reached at amelia@hr-options.com.