Labour Market Impact Assessments Co m p l i a n c e a n d Co n s e qu ence s

P re s e n te d by :

S t e p hen Gre e n | s t e p h eng@g a nds.co m

Eva n Gre e n | eva n g@g an ds.co m

1. The Current Landscape – an Overview

i. Business Visitors

ii. Intra-Company Transfers

iii. NAFTA professionals

2. The New Temporary Foreign Worker Program

3. Labour Market Impact Assessments

4. Compliance and Consequences

5. A Note On Express Entry

6. Questions

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

Agenda

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

T h e C u r r e n t L a n d s c a p e :

B u s i n e s s V i s i t o r s

• Buy goods and services for a foreign business or government

• Attend meetings, conferences, conventions or trade fairs

• Provide after-sales service

• Train employees at a Canadian subsidiary of a foreign parent

• Be trained by a Canadian parent for employment at a foreign

subsidiary

• Attend Board of Directors meetings

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• Engage in employment that will provide services or create

competition within, or remove opportunities from, the Canadian

labour market.

• Receive any form of remuneration from the Canadian company

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• There must be no intent to enter Canadian labour market

• Business activity must be international in scope, a presumption of

underlying cross-border business activity

• Primary source of remuneration must be outside Canada

• Principal place of employer must be outside Canada

• Accrual of profits of the foreign employer must be outside Canada

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• Business Visitors do not require a permit

• Foreign nationals from non-visa exempt countries will still require a

Temporary Resident Visa (TRV) to enter Canada

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

I n t r a - C o m p a ny Tr a n s f e r s

• Work Permits may be issued to qualified employees of a multi-national

to work for a parent, branch, subsidiary or affiliate

• No Labour Market Impact Assessment is required

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• Transferee must be both:

• Currently employed by the multinational

• Continuously employed by multinational outside Canada in a

similar position for at least one year in the in the three-year

period preceding application

• And employment must fall in to one of three categories:

• Executive, Senior Managerial, Specialized Knowledge

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

Applicants in this category must now posses both:

• Knowledge at an advanced level

• Proprietary knowledge of the company’s product, service,

research, equipment, techniques or management

Applicants must be “key” personnel and not simply “highly skilled”

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• Employment must be temporary

• Qualifying relationship between Canadian enterprise and multi-

national enterprise

• Must be otherwise admissible for temporary entry

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

N A F TA P r o f e s s i o n a l s

• For professions identified under treaty

• Work permits up to 3 years, renewable

• Exempt from Labour Market Impact Assessment requirement

• Job is meant to be “temporary” in nature

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• Citizen of the United States or Mexico

• Profession identified in Appendix 1603.D.1

• e.g., Engineers, Technicians, Geologists

• Education must be aligned with professional, and certain designations

may be required

• Pre-arranged employment

• Otherwise admissible for temporary entry

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

T h e N e w Te m p o r a r y F o r e i g n Wo r k e r P r o g r a m

High Wage

At-or-above median wage (as determined by

ESDC)

LMIA required

Fee of $1000

Transition plan required

10 day processing available for some

occupation streams (highest demand, highest

paid or shortest duration)

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

Low Wage

Below median wage (as determined by

ESDC)

LMIA required

Fee of $1000

Phased in cap on % of TFW at any

worksite

No LMIAs for Food Service,

Accommodation and Retail Sectors in

regions of unemployment at-or-above

6%

LMIA valid for 1 year

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

High-wage occupations:

Wage is at-or-above median

wage

Low-wage occupations: Wage

is below median wage

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

T h e L a b o u r M a r k e t I m p a c t A s s e s s m e n t

• Procedural hurdle for the hiring of Temporary Foreign Workers

• Must provide information on:

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

How many Canadians applied for the job?

How many were interviewed?

Why were they not hired?

• Employers hiring TFWs must also attest that:

They are aware Canadians cannot be laid off

They are aware Canadians cannot have their hours

reduced

• High Wage LMIAs must now include a transition plan

• For High-Wage TFWs

• Transition plan is in addition to recruiting and advertising requirements in the LMIA that

ensure Canadians and Permanent Residents are hired first

• Employers must have a strategy to train, share skills with and/or transition to a Canadian

workforce through investment in training or hiring apprentices

or

• Commit to assisting the TFW transition to becoming a permanent resident

• Employers will be assessed on the implementation of their plan during audits and renewals

• Employers failing to implement their plan may be denied new LMIAs

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

Activities may include:

• Offering increased wages, flex-

hours or other benefits

• Campus recruitment

• Job Fairs

• Recruiting from

underrepresented groups

• Apprenticeship, Co-Ops and

other training

• Employers are fully liable for all third party recruiter activities,

including representations made to ESDC

• LMIAs in certain provinces may require licenses or registration

• Hiring from Visa Exempt countries may reduce processing times as

these individuals do not require a Temporary Resident Visa to enter

Canada

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

L M I A C o m p l i a n c e a n d C o n s e q u e n c e s

• All employers hiring foreign workers on LMIAs are subject to compliance

reviews

• There are no appeals, and rendered determinations are final

• Review standards is “substantially the same” (STS)

• Terms and conditions of the job should be STS as those laid out in the

LMIA

• ESDC will accept limited justifications for divergence from LMIA

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• 25% of all employers of TFWs will be inspected each year

• Authority to conduct onsite and warrantless inspections

• 6 years starting on the first day of employment

• Interview foreign workers and Canadian employees

• May demand production of any document necessary to demonstrate compliance

• Banks and Payroll companies can be compelled to provide records to verify information

provided by employers

• Tip-line being set up for people to report suspected abuse of program

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• Suspension of current LMIAs and new LMIA processing during investigations

• Revocation of LMIAs if rule-breaking is found

• Published on an ineligible employers list online

• List will include both employers who have been suspended and employers found to

be in violation of rules, and will include the consequences have been imposed

• Fines, and criminal charges (possible jail time), for misrepresentations to ESDC

• Information sharing by ESDC may trigger employment standards, occupational health and

safety, and other investigations

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

• Included in Budget Implementation Act (2014)

• Commonly used enforcement tool:

• Ontario Securities Act

• Environmental Protection Act

• “Non-Criminal” fines imposed without the benefit of a proceeding or hearing

• Imposed in cases of non-compliance with program, will involve publication of both the

nature of the non-compliance and the amount of penalty

• Range from $500 - $100,000 per violation

• Insurability is an open question

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

A N o t e O n E x p r e s s E n t r y

• Electronic Immigration Management System launches in January, 2015

• Replaces “first come, first served” process with a pool of applicants who will be ranked

against each other using a comprehensive point system

• 1200 points maximum: 500 for human capital factors/100 for skill transferability/600 for

an LMIA

• Mandatory for all applications for Permanent Residence under Canadian Experience Class,

Federal Skilled Worker, Federal Skilled Trades, and optional for Provincial Nominee Program

• Temporary Workers in Canada under LMIA-exempt streams (NAFTA, Intra-Company

Transferees) will be required to obtain a positive LMIA in order to be selected from the

pool by an employer

• Promises a processing time of 6-months for selected candidates

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

R e c r u i t i n g F o r e i g n P r o f e s s i o n a l s

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