So Your Company has Decided to Hire Foreign Workers… Now What?

Veronica K. Choy, Calgary

Navigation of processes and strategic planning in today’s business immigration world.

After placing countless advertisements in newspapers and websites, your company has decided to recruit workers from outside Canada.  You have already identified the countries where you are confident that you will find qualified workers.  You may have already identified the workers themselves.  Now what?

Going through your list of personnel, you realize that your company currently has several foreign workers on work permit status—work permits that are scheduled to expire within the next several weeks.  Your managers say that these workers must be able to continue working for the company past the expiry of their work permits.  What do you do?

In the process of applying for a Labour Market Opinion (LMO) to extend the status of one of your foreign workers, Service Canada asks whether your company has been compliant with the requirements and conditions of ALL of the work permits that have and are associated with your company over the past 2 years.  In truth, the company cannot state, with certainty, the number of foreign workers it has on payroll, where they are or the positions they hold.  What information must be provided to show that your company has been compliant?

While the Canadian immigration process has never been easy to navigate, today’s Human Resources Professional can no longer simply view business immigration as a means by which to fill positions.  Professionals must educate themselves on the various immigration options, processes and requirements associated with each step and also understand the strategic approaches the company actively must take towards the recruitment, management and retention of foreign workers.

On April 1, 2011, Citizenship and Immigration Canada (CIC) passed several key amendments to the Immigration and Refugee Protection Regulations (“Regulations”).  These amendments have serious implications for all employers of foreign workers and will have a direct impact on the ability of these Canadian companies to do business. 

One of the most significant amendments is the imposition of a 4 year cap on most work permit categories.  Temporary foreign workers within these categories are now restricted from renewing their work permits for more than 4 years.  Then they must refrain from working in Canada for another 4 years before they are eligible to apply for work permits again.  It should be noted that the 4 year cap is NOT applicable to ALL work permit categories, is NOT retroactive to before the amendment AND is calculated in a cumulative fashion.  However, with the various categories for the application of Permanent Residency taking between 12 to 24 months to complete (with no deemed work permit status for a foreign worker waiting on a pending application for Permanent Residency), the need for the company to create and monitor a strategic immigration and employment plan is more important than ever.

Another significant amendment to the Regulations was the imposition of potential serious sanctions on employers who are found in breach of the conditions set out in an LMO or Work Permit.  Employers seeking to hire or extend the work permit of a temporary foreign worker must pass the Substantially The Same (“STS”) test, which is an assessment of whether an employer has provided its current foreign workers wages, working conditions and employment in occupations that are substantially the same as those items set out in the employer’s job offer during the two years prior to the submission of an application for an LMO or a Work Permit. 

If an employer is found to be non-compliant, they may be provided with an opportunity to either rectify the “shortcoming” or be allowed to provide a “reasonable justification” for the non-compliance.  Employers who fail to provide reasonable justification may face serious sanctions including: the refusal of the LMO/Work Permit, ineligibility to hire or renew any temporary foreign workers for a period of two years; and/or the employer’s name will be listed on CIC’s website under the Temporary Foreign Worker Program’s Ineligible Employers list.

Another area of growing concern for companies employing foreign workers is the juggling and management of processing times for the various applications involved with work permit and permanent residency applications.  Over the past 6 months, the processing time for CIC to process a work permit for a worker to remain with the same employer has increased and decreased on a weekly basis—with the most dramatic drop occurring in the past 8 weeks from approximately 102 days to 41 days.  On the other hand, the processing time for Service Canada to process an LMO application has swelled from approximately 4 weeks to 12 weeks since June 2011.  This does not even take into account the changes and delays affecting the processing of work permits at visa offices outside of Canada.

Who is in the eye of this proverbial human resources hurricane?  You, the HR Professional, who must juggle the on-going assault of increasingly stringent requirements, looming expiry dates and ever-changing processing times—which, in the end, may be still somewhat more manageable than the demands of his/her business units and managers.  While the stress of researching the various immigration options and navigating through the immigration process may be largely alleviated by the assistance of an experienced immigration lawyer (nudge, nudge), the ultimate responsibility of educating the company of the processes and requirements involved as well as tempering expectations in relation to processing times falls upon you.  In today’s business immigration environment, HR Professionals must understand that the management of foreign workers extends far beyond getting them their first work permit and bringing them into Canada.  They must also be fully apprised of the status and conditions of the foreign workers they currently employ and eliminate or mitigate against the operational interruptions, and other costs associated with the temporary or permanent loss of an employee’s services.  The BUSINESS of business immigration is ever-evolving, and our ability to navigate the system relies heavily on ongoing adaptability and continuing education in this area.

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