Corporate Immigration Compliance
Regulatory variations to the Temporary Foreign Worker Program
The Canadian Temporary Foreign Worker Program (TFWP)/International Mobility Program (IMP) have undergone a substantial development to a program of last resort, heavy on execution or more precisely, Canadian employer compliance. With an aim to the protection of Canada’s labour market and furnishing Employment and Social Development Canada (ESDC) the legal means to impose, instruct and ban non-complaint bosses. The changes have changed hopes, raised many fascinating legal issues and offered new challenges for companies and attorneys. Much of the disparagement focused to the developing compliance regime is related to the legal scope of the execution measures as well as certainty and transparency in Labour Market Impact Assessments and compliance.
Lawful Means to Assess Employer Compliance
The methods used to authenticate company agreement include an Employer Compliance Review (ECR); This review is to be conducted under Ministerial Instruction and an inspection, Normally the outcomes can result in a finding of “acceptable”, meaning that the owner has proved compliance with the examined conditions or has justified its non-compliance per the Regulations, or the company is found to be “non-compliant”.
Employer Compliance Review
ECRs are used as a mechanism to authenticate past compliance and started as part of an LMIA application process. The determination of an ECR is to approve ESDC, in the course of reviewing an LMIA submission; to perform a compliance review of all previously issued positive LMIA decisions for a company. An ECR assesses compliance with TFWP incomes, working situations, and job requirements.
Earlier employers were only required to prove that the salaries, working circumstances and jobs were “noticeably the same” as those offered in the offer of engagement. But recently in 2013 variations to the Regulations presented more severe requirements for bosses by imposing a condition on employers to certify that foreign workers are:
- Hired in the same profession that was mentioned or planned or given in the offer of employment;
- Provided with salaries that are considered the same but not less favorable than those mentioned in the offer of employment; and
- Provided with employed circumstances that are significantly the same but not less favorable than those mentioned in the offer of employment.
The modifications also improved the authority of ESDC to assess an employer’s compliance for up to six years former to the receipt of the LMIA application, up from two years. The six-year review period for past LMIA/LMO applications under an ECR does not seem to be backdated or retrospective. The supervisory modifications, as published in the Canada Gazette do not comprise transitional provisions with respect to this provision.
Companies found non-compliant at the end of an ECR are subject to the following penalties:
- A ban of two years from the TFWP and International Mobility Program;
- A negative LMIA issued for any pending applications; and/or
- Revocation of previously-issued LMIAs
What are Enhanced Enforcement Actions?
Now, tougher penalties for non-compliant employers who disrupt the conditions of the TFWP or the International Mobility Program (IMP) came into force. These differences comprise a new method of evaluating non-compliance, the chance for voluntary revelation, and a new formal opportunity for employers to reply to early findings of non-compliance. With respect to companies who have been found non-compliant as a consequence of a check from a violation that occurred prior to 1 December 2015, the following penalties may apply:
- Two years Ban from using the TFWP.
- Publication of their name, address and period of disqualification on a public website.
- A negative LMIA being delivered for any undecided applications; and/or
- Cancelation of earlier issued LMIAs.
Companies found non-compliant as an outcome of an examination for violations that happen on or after 1 December 2015 are now subject to the following penalties:
- one, two, five or ten years ban, or permanent bans for the most serious violations.
- Publication of their name, address and details of the violation(s) and/or consequence on a public website; and/or
- Cancelation of previously-issued LMIAs.
Administrative Monetary Penalties
In case of Any violation, AMPs can put penalties range from $5,000 to $100,000 per violation, up to a maximum of $1 million over one year, per boss. Each violation is different and distinct. The amount of the penalty is determined based on a demerit point system. The point system is considered based on the following points:
- What type of violation is it?
- What is the size of the employer’s business?
- Knowing the employer’s history of non-compliance;
- The sternness of non-compliance; and
- Whether the employer willingly revealed information about potential non-compliance before a review was initiated.
Publication of Employer’s Information
Employers who commit Violation, their names will be published on one or more Government of Canada websites. It is noteworthy that the present provision entails that a Notice of Final Determination is delivered prior to the company’s information being published. Also, the circumstances or conditions with which the employer failed to obey, the eligibility status of the employer, the AMP amount and the eligibility period of the employer will also be published.