session 8b how to handle an h1 b audit_advise from the canada ringside_larry linton

PwC Law LLP | Copyright © 2015 INSZoom Immigration Conference

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INSZOOM Immigration Conference 2015Empower Employees for Immigration Compliance

About the Author: Larry Linton

Larry Linton is a Senior Lawyer in the Immigration Law practice at PwC Law LLP. Larry has extensive

experience in providing immigration advice and assistance to businesses from a wide range of industry

sectors, including telecommunications and information technology, engineering, banking and financial

services, manufacturing, retail, education, oil and gas and professional services.

Larry regularly works with Human Resource professionals and internal mobility teams on policies and

procedures related to recruitment, retention, and related immigration matters. He also has experience

in helping private clients meet their immigration needs.

Furthermore, Larry has significant experience interacting with domestic processing centers, Canadian

Ports of Entry, and Canadian Consulate Generals, High Commissions and embassies abroad. He

provides training to human resource professionals on immigration compliance and the development

and implementation of related policies and procedures.

In addition to his call in Ontario, Larry is a duly admitted Attorney in South Africa and was called to the

Bar in New Zealand. He graduated with a Bachelor of Arts and a Bachelor of Laws degree from the

University of the Witwatersand, in South Africa. He is a member of the Law Society of Upper Canada

and the Immigration and Citizenship Section of the Canadian Bar Association.


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Canadian immigration compliance

PwC Law LLP

Bengaluru

October 28, 2015

www.pwc.com/ca/immigration-law

Canada’s new immigration compliance and enforcement regime

Changes to Canada’s immigration compliance program at a glance

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2011 –Changes to regulations placing increased scrutiny on employers

2012–Introduction of employer compliance reviews and increased penalties

2013 –Increased authority to conduct on-site inspections

2014 and 2015 -Increased enforcement, new compliance measures & implementation of more draconian employer penalties

Government investigative and enforcement powers

Investigative and enforcement powers

• Increased number and scope of inspections:

• One in four employers will be subjected to an inspection each year

• An employer may be selected for an inspection as a result of:

An anonymous tip;

Employer being classified as “high risk” of offending; and/or

Random selection.


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Investigative and enforcement powers

CIC, ESDC, and CBSA are now responsible for conducting three types of compliance reviews to assess employers’ adherence to program conditions and requirements:

1 Employer Compliance Reviews (“ECRs”)

3Review under Ministerial Instructions (“RuMIs”)

2 Inspections


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A finding of immigration non-compliance


• Non-compliance occurs when:

An employer fails to demonstrate, on a balance of probabilities, that they are in compliance with Canadian immigration laws, regulations, or program requirements; and

The employer has failed to provide an acceptable justification; or

The justification provided requires the employer to provide compensation to the foreign worker and the employer has refused to pay the compensation or has not made sufficient efforts to pay the compensation.

• A finding of non-compliance may also be made if an employer refuses to provide documentation which has been requested or is otherwise uncooperative during an inspection

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Defences to immigration non-compliance

• Employers may have an opportunity to correct the non-compliance, i.e. repayment of wages owed

• Non-compliance may be “justified” (i.e. excused) in certain and limitedcircumstances

• Non-compliance may be justified if it results from:

A change in federal / provincial law

A change to the provisions of a collective agreement

Measures implemented by the employer in response to a dramatic change in economic conditions

An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national

An unintentional accounting or administrative error

Force majeure (e.g. natural disasters)


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Voluntary disclosure of non-compliance


• Employers may voluntarily disclose instances of non-compliance to

ESDC

• This does not mean that the employer will not face penalties

• The penalties may be reduced

• Disclosure must complete and timely (before any investigative or

enforcement action is started)

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Penalties for immigration non-compliance

Penalties for immigration non-compliance

Warning Letter

AMPs

Bans

Criminalcharges

Prison sentence

Revocation or suspensionof an LMIA

Revocation or suspension

of work permit

Employer name ispublished on a

government “blacklist”

Bans of 1, 2, 5 or 10 years, with permanent bans being possible

Fines of up to $100,000 per offence (max of $1 M per year per employer)

Criminal charges and possible prison sentences

Revocation or suspension of pending LMIAs and work permits

Warning to be considered in assessment of future AMP penalties


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AMPs – Points system


Type ofviolation

Voluntarydisclosures

Employer‘ssize

Severity ofviolation

Compliance history

AMP points system

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AMPs – Case study

• Employer in the energy sector was selected for a site-inspection after the issuance of an LMIA work permit. During the inspection, an interview is conducted of randomly selected employees, including foreign workers. One foreign national complains of continued verbal threats from other employees and that he has not been paid the wage that he was promised in his employment contract

• The Employer is requested to provide documents related to its policies on workplace harassment and abuse, as well as documents related to the foreign workers salary. All requested documents are provided without undue delay

• The employer has no previous findings of non-compliance

• The Employer is found to have not provided a workplace free of abuse and that the pay and working conditions of the foreign national is not substantially the same


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AMPs – Case study

Type of

Violation

PointsPenalties

History Severity

Changes to working

conditions and pay B 1 0-6 $0 - $30,000

Did not demonstrate

reasonable efforts to

provide a workplace

free of harassment

C 2 0-10 $2,000 - $80,000


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AMPs – Violations


• An employer who is found to be non-compliant without adequate justification has committed a violation

• Violations of a single obligation which impact more than one foreign worker will be treated as separate violations for each foreign worker

• Violations of multiple conditions involving one foreign worker will be also treated as separate violations

• New LMIA and work permit applications will not be accepted until the employer has paid the AMP

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Contact Details

Larry Linton

[email protected]

PwC Law [email protected]

1-800-993-9971http://www.pwc.com/ca/law


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mailto:[email protected]

http://www.pwc.com/ca/law

This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the

information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the

accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, PwC Law LLP, its members, employees and agents

do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the

information contained in this publication or for any decision based on it.

© 2014 PwC Law LLP. All rights reserved.

Thank you!


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