Bill MacGregor
Partner
Certified Specialist - Citizenship & Immigration Law (Immigration)
Article
6
On April 29, the Canadian government announced major changes to the Temporary Foreign Worker Program (TFWP).
Some reforms were expected based on an announcement in the recent Economic Action Plan 2013. However, changes have been introduced sooner than expected in response to recent criticisms of the TFWP, and the reforms appear to be more significant than anticipated.
Overview of Main Changes
The government’s news release states that legislative, regulatory and administrative changes will be introduced which will:
The Seasonal Agricultural Worker Program and other primary agricultural occupations will generally not be affected by these changes.
The details of the changes have not yet been set out, and it is unclear whether the A-LMO program will be brought back, revamped or scrapped entirely.
Further Information on Changes
Although details on the changes have not yet been provided, it is clear that requirements of the TFWP are being tightened up. The LMO regime has always been about balancing the needs of Canadian employers to address temporary labour shortages by hiring foreign nationals, with the need to protect and enhance the Canadian labour market.
For example, employers were always required to try to recruit qualified Canadians before applying for an LMO. The new rules will place more emphasis on this by requiring employers using the LMO program to provide human resource plans to address how positions will be filled by Canadians in future. The LMO process will therefore become more complicated, given the need to provide transition plans when an application is made.
Details of what will be required in providing a transition plan, and what exceptions (if any) may apply, have not yet been provided. The news release sets out that:
The details of a transition plan will vary depending on whether the employer is seeking to fill a lower- or higher-skilled position, the type and size of the industry and the regional unemployment rate, as well as the particular job being advertised.
Amendments to the LMO application form will ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs. It remains to be seen what those changes will be, and what sort of criteria Service Canada will use to determine whether a situation represents an instance of outsourcing. It has always been the case that an LMO was not supposed to be issued where it would have a negative effect on the local Canadian labour market.
Given that legislative changes will provide the government more ability to rescind LMOs and work permits, Service Canada will have increased tools to use to punish non-compliant employers. The parameters of these new powers have not been set out yet.
As mentioned earlier, the A-LMO program is suspended, immediately. This program allowed eligible employers to obtain an LMO within a couple of weeks, which is much faster than the regular LMO process. All employers will now need to use the regular LMO process, which will likely increase processing times for everyone.
Implications for Employers
The full impact on employers seeking to hire foreign nationals in Canada will need to be assessed once the details of the proposed changes are provided.
In the meantime, for employers using the LMO regime to hire foreign nationals, we note the following:
If you have any questions on these changes, please do not hesitate to contact a member of the Gowlings Immigration Practice Group.
For more information on the government’s announcement, please follow these links:
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