Documentos de Académico
Documentos de Profesional
Documentos de Cultura
TABLE OF CONTENTS
Contents
Introduction ______________________________________________________________________________________________ 1
The Immigration Landscape of 2014 & the Critical Role of HR Managers ___________________________ 2
Labour Market Impact Assessment (LMIA) Basics ____________________________________________________ 6
LMIA Advertisement Checklist ________________________________________________________________________ 16
Tips for Successful LMIAs ______________________________________________________________________________ 17
Work Permit Applications _____________________________________________________________________________ 18
Keeping Track of Your Foreign Workers & Remaining Compliant __________________________________ 27
Preparing for Government Investigations ____________________________________________________________ 29
Employer Compliance Reviews (ECR) ________________________________________________________________ 31
Site Visits ________________________________________________________________________________________________ 36
Online Resources _______________________________________________________________________________________ 37
Company Information Holthe Tilleman LLP ________________________________________________________ 38
Introduction
In a country so diverse, full of opportunity and economic strength, it will come as no surprise that
despite the recent chill on the Temporary Foreign Worker Program across Canada, the demand for
skilled foreign workers continues to be high as Alberta employers struggle to fill labour shortages
in our Province. However, the process involved in sourcing and retaining essential foreign labour
is becoming significantly more difficult. With an ever increasing emphasis on employer
compliance through the use of compliance reviews and unscheduled job site visits, employers are
frequently finding themselves offside immigration regulations, despite their good intentions. As a
result, employers rely heavily on their Human Resource Managers to maintain compliance by
keeping track of their foreign workers and preparing for government audits while ensuring all
necessary documentation is ready when the call comes from Employment and Social Development
Canada (ESDC).
This handbook was designed by the lawyers at Holthe Tilleman LLP as a guide for Human
Resource Managers to use when hiring, retaining, and most importantly, maintaining
compliance within the ever volatile Temporary Foreign Worker Program (TFWP).
HANDBOOK UPDATES
For handbook updates, please visit our website regularly at www.ht-llp.com or contact us directly.
Updated October 2014
Page 1
Page 2
a new work permit from Citizenship Immigration Canada (CIC). A wage increase of more than 2%
could also trigger a finding of non-compliance unless the raise was contemplated within the
original LMIA/LMIA. Further, companies with multiple subsidiaries need to exercise caution to
ensure that compensation is flowing from the employer of record stated on the LMIA confirmation
and not another entity.
On December 31st, 2013, new Ministerial Instructions set out additional employer obligations and
conditions and specifically mandated an in-depth and lengthy employer record tracking system as
a component within the employer compliance process. As required by law, employers must now
retain any document that relates to compliance, including but not limited to those conditions
confirmed within the LMIA letter and annexes. This information must be retained and producible
for a period of six years, beginning on the first day the foreign worker commences employment.
Further, during this period the employer must demonstrate that any information they provided in
the context of the LMIA was indeed accurate.
Another significant development is the fact that ESDC now has the authority to conduct on-site
inspections without a warrant to verify an employers compliance with LMIA conditions at any
time throughout the respective six year period. Further, much greater emphasis has also been
placed on the training of Canadian citizens and permanent residents to fill positions currently held
by foreign workers. We anticipate that the establishment and presentation of detailed training
plans may become much more important within the LMIA process.
If an employer is found to have failed to meet the conditions to which no justification and
corrective action can be made, access to the temporary foreign worker program may be denied for
two years, barring the employer from hiring or retaining any foreign workers. ESDC and CIC may
publish the employers name, address and period of ineligibility as part of their list of ineligible
employers on a public ban list and any pending LMIA applications and previously-issued
LMIA/LMIAs may be denied or revoked. Currently, there are only a small number of employers
listed on the ESDC blacklist. However, the government has recently proposed a serious of
significant changes to the penalty mechanism with the TFWP. Monetary and other penalties have
been proposed for even the most innocuous non-compliance. Currently, employers who have been
found non-compliant by virtue of a clerical error or unintended mistake are given the opportunity
to take corrective action. However, the new proposed changes suggest a monetary penalty may
still be imposed where no finding of guilt or wilful error has been committed by the employer.2
Further, it has been proposed that employers under investigation for non-compliance may also be
placed on the ESDC blacklist while the investigation is pending. In effect, the government is
See Government Discussion Paper on Proposed Regulatory Changes:
http://www.esdc.gc.ca/eng/jobs/foreign_workers/consultations/discussion_paper.shtml
2
Page 3
proposing a form of public shaming on companies who have committed no offence and are
ultimately found to be fully compliant.
These sanctions are new additions to the existing penalties under the Immigration and Refugee
Protection Act, SC 2001, c 27, that state Employers who employ a foreign national in a capacity in
which the foreign national is not authorized to be employed, may be fined up to $50,000 and
imprisoned for up to two years.
These consequences bring public shame and embarrassment to the penalized corporation and
may severely hinder their operations, existing contracts, and relationships. Further, without
access to the foreign worker program, employers may be severely restricted in their international
trade, recruitment and sourcing of skilled labour.
Employers must be aware that the conditions and actions under one work permit can in fact
threaten the employment of all of their foreign workers. The Ministerial Instructions issued on
December 31, 2013, set out specific public policy considerations that allow ESDC to suspend,
revoke or refuse an LMIA/LMIA application. Accordingly, if there are reasonable grounds to
suspect that the employer is not complying with the conditions in respect of a work permit or any
other work permit and the failure to do so cannot be justified, then any subsequent and pending
LMIA applications for any of the employers foreign workers may be in jeopardy.
Following a determination of non-compliance, employers may be issued negative LMIAs on any
pending LMIA applications and may have previously-issued LMIAs revoked. Further, any work
permits associated with revoked LMIAs could also be cancelled. Therefore, the impact of noncompliance in one application can severely impact all foreign workers under that employer. As a
result, employers need to be aware of the specific restrictions placed on them when hiring a
foreign worker and take steps to properly document their obligations and prove compliance.
BEST PRACTICES
Best practices for employers to ensure they remain compliant include:
retaining all documents for a period of 6 years to demonstrate full compliance with the
information on the LMIA application and the terms and conditions set out in the LMIA
letter and annexes;
contacting ESDC before making any changes to conditions set out in the LMIA letter and
annexes;
cooperating fully with ESDC during compliance reviews;
working with authorized representatives. Bill C-35 restricts those eligible to provide
immigration advice and assistance. Be careful when turning LMIA and work permit
Page 4
applications over to recruiters unless you know they are authorized to do so. CIC has a list
of authorized representatives; and
regularly checking ESDC and CIC websites for updates and changes to employer
obligations.
Page 5
Tip: Pay close attention to the specific requirements under each NOC. If a minimum
education level or experience is set out in the NOC, you will not be able to accept candidates
with lower credentials. ESDC may approve the LMIA, but CIC will refuse to grant the WP.
Page 6
STEP THREE: DETERMINE WHETHER THE POSITION IS CLASSIFIED AS A HIGH OR LOW WAGE
As per the June 20, 2014 changes, the streams for LMIA will now be assessed as either High Wage
or Low Wage, instead of being classified as High-Skilled or Low-Skilled. (Please note that
currently all permanent resident qualification requirements will continue to follow the previous
high/low skill distinction.) The government claims that wage is a more objective and accurate
reflection of skill level and labour need in a given area. Positions where the prevailing wage is
below the provincial/territorial median wage will be considered low-wage, while those positions
where the prevailing wage is at or above the provincial/territorial median wage will be considered
high-wage.
The starting point for any Alberta Employer hiring a foreign worker will now be: Are you offering
an hourly wage that is higher or lower than $24.23/hour, our provinces median hourly wage? If
you are offering a wage that exceeds this, your application will be considered under the highwage stream, and subsequently, should you offer a wage that is lower than this, you will be placed
in the low-wage stream, keeping in mind, the prevailing wage rate is still applicable to any and
all applications under the LMIA, which means that you must be offering a wage that meets or
exceeds the prevailing wage rate for the specific region where you intend to employ the foreign
worker.
The wage distinction is crucial not only in the assessment process, but will also dictate the
limitations and restrictions imposed on you and the foreign worker. For example, LMIAs will only
be granted for a maximum period of one year for low-wage applications, rather than the previous
two year duration granted to low-skilled occupations. Below is a detailed chart we prepared that
explains the new restrictions imposed based on the wage class of your LMIA application:
Page 7
Page 8
Page 9
Tip: Ensure that each of the specific content requirements are included within all ads. ESDC
will not hesitate to refuse an LMIA if any of these requirements are missing regardless of
how insignificant they may seem.
Tip: Always maintain internal consistency within all ads, employment agreements,
application forms, etc. Internal inconsistencies can also cause an LMO application to be
refused.
Tip: If possible, go above and beyond these recruitment guidelines by posting more than
three advertisements, and using at least one of the paid online job websites. The more you
can show that you have reached out to Canadians/Permanent Residents, the more likely
your LMIA application will be approved.
***Please refer to the LMIA Advertising Checklist in this handbook which can be used as a
quick reference guide when creating advertisements.
Page 10
For your reference we have provided a sample spreadsheet that can be used as a guide in creating
one suited to the specific circumstances of your application.
Date
Applicant
Name
Place of
Residence
Education
# Years of
Experience
[REQUIRED
SKILL(S)]
Interview
(Y/N)
Reasons
Tip: As part of the application process, we always submit a detailed letter of support setting
out specific information about the employer, position, NOC Code analysis, prevailing wage
rate, all recruitment efforts as well as benefits flowing to the Canadian labour market when
hiring the foreign worker. Further, this letter provides you with an opportunity to explain
in detail why there are no qualified domestic candidates available and why you needed to
search for candidates abroad.
Page 11
Page 12
6. Assess previous job offers that the employer has made to a TFW within the 2 years
preceding the date of the new LMIA application. This is to determine whether the
employer has provided substantially the same (STS) wages, working conditions and
occupations as outlined on the previous positive LMIA letter and annex.
7. Ensure that the employer has met all the Program Requirements (i.e. Paid applicable
processing fees, review of Business Licence and other documentation.)
One of the most important aspects of the assessment process is the call you will receive from an
Officer related to your LMIA application. The call was first instituted for program integrity
purposes to combat fraud within the LMIA application process. At times, unscrupulous third
parties would submit fraudulent LMIA applications on behalf of unsuspecting employers in order
to secure illegal work permits for foreign nationals seeking to enter Canada. In order to combat
this, ESDC reserved the right to contact the employer directly to confirm information contained
within the LMIA application.
Unfortunately, this call has evolved to much more than a simple confirmation of the employers
desire to actually participate in the program. Employers can now expect something akin to an
interrogation in many instances. Information contained within the LMIA application is often
questioned or even outright challenged as to its accuracy. Often Officers will focus on the
recruitment efforts and why Canadians were disqualified from consideration. As such, it is critical
that you are prepared and ready to defend your need for an LMIA. A properly completed
recruitment tracking chart will help with your defence.
Many LMIA applications succeed or fail based upon the effectiveness of the contact person on the
call. Dont fall into the trap of placing upper level managers as the contact person unless they have
been actively involved in the recruitment process, preparation of the application materials and are
fully up to speed with the entire LMIA process. We often suggest that the contact person be the HR
Manager or other person directly involved with the application process. Senior management may
continue to remain the signing authority on the application; however, do not assume they also
need to be the main contact person.
Finally, if the contact person is going away on holidays, it is also recommended to include two
people as main contacts for the company so as to ensure a timely reply when the call comes from
ESDC. Applications may be refused if a voice message is not responded to within 48 hours.
Page 13
Negative LMIA: If a negative opinion is issued, this means that you have not met all of the
program requirements. Often the main reasons for refusal include the following:
1. deficiencies within the content criteria of advertisements such as a missing business
address or a failure to indicate whether the job was permanent or project based;
2. failing to offer the prevailing wage rate for the position; or
3. no labour shortage is found to exist within the occupation requested. This is the most
frustrating refusal because the Officer is stating, in effect, that they do not believe your
assertions that there are no Canadians or permanent residents available to fill the position.
Page 14
Note there will be additional steps for lower-skilled workers, such as arranging and paying for
transportation costs and arranging for accommodation.
Tip: Conduct regular internal audits to ensure compliance with all conditions of the LMIA
confirmation by monitoring the expiry dates of work permits, keeping up to date copies of
contracts, work logs, payroll, job duties and location of work readily available. Keep records
when fulfilling the various activities within the Transition Plan. In this manner, you will
always be prepared for employer compliance reviews and other investigations.
Page 15
Page 16
Page 17
Page 18
In an effort to better prepare HR Managers for navigating the complexities of work permit
applications, we have set out below information designed to help you avoid some of the common
pit falls associated with this process. It is also important to note that we have focused our
discussion on LMIA based work permits and have not provided specific guidance on the many
LMIA exempt work options that exist (i.e. Intra-company transfer, NAFTA Professional, Working
Holiday, Reciprocal Employment, Significant Benefit, etc.)
A special section will soon be added to our new website which will set forth specific
guidance regarding the various LMIA exempt work permit options available as well as tips
and strategies designed to increase your odds of success.
Visit our website at: www.ht-llp.com
Page 19
Page 20
the challenges working within a virtual environment. The portal itself can often be down
leaving applicants with the frustration of wasting much time continually returning to the
site to see if it is back up. However, we have found that for the most part the online portal
is worth pursuing as filing is instantaneous when you are in a real time crunch (ie. LMIA is
expiring). Foreign Nationals will obviously need access to a computer and be able to
upload scanned copies of their supporting documentation in order to use this process. Our
office really likes this option because of the representative portal created by CIC. The
portal allows us to easily prepare application materials on behalf of clients all over the
world without the added headache of couriering original documents back and forth with
the client. As such, it does not matter where the foreign worker lives in the world, as long
as they are able to scan and e-mail their supporting documents to our office, we can
handle the whole process on their behalf giving them complete peace of mind.
4. Applying in person at a Canadian port of entry (POE) - If a TFW comes from a country
whose citizens require an entry visa to travel to Canada, this option is not available. If time
is an issue, which it often is, filing through the POE is likely your best option for visa
exempt foreign nationals. There are no specific application forms. However, the TFW must
bring with them all necessary supporting documentation to prove their eligibility for the
work permit including qualifications to work within the requested occupation. The POEs
are managed by the CBSA. The CBSAs primary mandate is border security. As such, TFWs
need to be prepared for a less than inviting experience depending upon the Officer they
appear before. In addition to the individual personalities of the Border Service Officers
(BSOs), each POE tends to have a culture of its own. As such, it is advisable to get to know
the tendencies of certain POEs and avoid those that have a reputation for being less
facilitative. Generally speaking, airports tend to be a little better than land crossings.
However, the Calgary and Edmonton airports do have a reputation for being less
facilitative than Vancouver, Toronto, and Montreal depending upon the type of work
permit you are requesting. LMIA based work permits tend to be fine at most POEs in
Canada. However, we would be remiss if we did not counsel everyone to avoid the Alberta
and Sarnia, Ontario land crossings. The strong enforcement culture that exists at these
ports of entry can make even the most straightforward applications a difficult and
stressful process for the TFW. If travelling by land to an Alberta destination, it is best to
route further east through Saskatchewan or west through BC prior to driving up. If
travelling into Ontario destinations, you have many choices available to you just avoid
Sarnia if you can.
Page 21
5. Paper application filed through the Temporary Foreign Worker Unit (TFWU)
seeking pre-approval of an LMIA exempt work permit - although this option is
exclusively for the expedited pre-approval of LMIA exempt work permits for visa exempt
nationals, we thought it would be important to include this. The processing units are
located in Toronto and Montreal. If you are uncertain as to whether or not a foreign
worker may qualify for an LMIA exempt work permit, and do not want to take the chance
at the POE, you may wish to consider this option. However, please note that the TFWUs
tend to be more strict than the POEs and processing times can be as much as 2 to 3 weeks.
As such, we generally recommend that if an application can be made at a POE, it is
typically best to do so versus the TFWU.
Page 22
3. If the checklist asks for it, include it. never fall into the trap of assuming something
doesnt apply to your situation. We have found that when in doubt, include it. Further, dont
just rely on the generic CIC work permit checklist to know what must be filed at a visa
office. Always go directly to the visa office website to ensure there are no additional
country specific requirements. At times you will see that the visa office or VAC checklist
requests more documents than the online checklist. We tend to err on the side of caution
and include the extra visa office specific documents regardless of whether they are listed
through the online portal. In order to do so, just bundle them with another document
when they are uploaded. See tip #7 below for further information regarding bundling
documents.
4. Pay the processing fee exactly as requested if payment is made incorrectly, the work
permit application will be returned. Please note that CIC recently increased the work
permit processing free from $150 CDN to $155 CDN. Further, many visa offices have very
explicit instructions on how the payment is to be made including to whom the money
order should be made out to.
5. Do not misrepresent or counsel misrepresentation. We know this one goes without
saying; however, we would be remiss if we didnt discuss it. Misrepresentations can cause
huge problems for not only the TFW, but the company representative that advised the
misrepresentation. This can occur by deliberately stating something within the application
materials that is not true (misrep by commission), as well as by failing to disclose
something that if disclosed could impact on the adjudication of the application (misrep by
omission). At times, your job as an HR Manager will require you to carefully scrutinize the
qualifications of some foreign workers when something just doesnt seem right.
Fraudulent documents are a reality. At times lower skilled and some higher skilled TFWs
have nothing to lose by providing fraudulent documents to secure a work permit. The
consequence of the misrep places them in no worse position than if they had not provided
the fraudulent document they are still unable to come to Canada. As such, if something
smells fishy, do your due diligence. Also, one of the more common areas of innocent
misrepresentation occurs when dealing with family members. At times a TFW will fail to
include their accompanying dependent family members because he or she alone is
travelling to Canada and they are remaining at home. This could be considered a misrep
that is frequently caught when a person is applying for PR status in Canada and now wants
to include his spouse and dependent children.
Page 23
6. File online work permit applications early in the morning the best time to access the
online portal is in the morning. Rather than trying to get an application filed before you
leave at the end of the day, consider doing it first thing in the morning on the next day
when user volumes are much lower.
7. Be creative when trying to upload documents to the online portal at times we will
want to include documents that are not specifically listed in the online checklist. It can be
frustrating to know how to get them in and the consequences of uploading something to
the wrong spot. It has been our experience that no matter which section you upload
documents to, they all end up in the same place at the end. As such, be creative in how you
deal with the size quotas (4MBs) and other limited headings. We find that many
miscellaneous documents can be included within the counsel submission letter section.
However, if you are running out of room, dont hesitate to bundle documents together if
necessary. After all, it is not our fault the system has limitations. If you are really
concerned uploading a document to the wrong section will have negative consequences,
include a cover letter that explains why you did what you did and the problem the online
portal created. It would be very difficult for a visa Officer to justify a refusal when the
portal was the source of the problem and you were doing the best that you could.
8. Include additional information on a separate sheet if necessary whether accessing
the online portal or applying through the traditional paper process, you will at times face a
question on the forms that does not allow sufficient space to properly respond to it. If this
happens, simply include a duplicate page to accommodate for the extra space needed. This
commonly occurs when documenting employment history and address history. When
uploading this to the portal, do not hesitate to include a separate sheet of paper that lists
the specific form number and name in the heading as well as restating the specific
question and number together with the comprehensive response you were unable to fit
within the CIC form. This additional sheet of paper can be uploaded within the counsel
submission section.
9. Ensure photos match the Photo Specification guidelines although we have never
seen a work permit application rejected because of improper photos, we strongly counsel
our clients to follow the photo specification instructions when uploading photos to the
online portal. Just because it has not happened yet, does not mean your TFW will not be
the first to get their work permit application refused.
10. Consider filing upfront medicals, if required some TFWs will come from countries
where an immigration medical must be obtained. CIC has now created the option of
Page 24
allowing TFWs to complete upfront medicals before the work permit application is filed.
This option has the potential of reducing processing times; however, be very wary of doing
this if you intend to file the work permit directly at the POE. BSOs on the border often have
a difficult time navigating CICs new Global Case Management System (GCMS) where the
medical results are posted. POEs continue to use the old FOSS system and rarely access the
GCMS unless there is a specific reason to do so. Although the transition to GCMS appears to
be on the horizon for the POE. As such, you could have the TFW complete upfront
medicals, confirm with CIC that they are approved within the GCMS, only to have the TFW
arrive at the POE and realize the BSO is unwilling to search or unable to find the medical
results. Ultimately, if the application is being filed at a visa office, this option is something
worth considering.
11. Make sure the passport is valid for the entire duration of the LMIA if the passport
expires before the duration granted on the LMIA, the work permit will only be issued to
the expiry date on the passport. If this happens, it is possible to request an extension to the
work permit within Canada once the individual obtains the passport extension, using the
original LMIA confirmation regardless of whether or not it has already expired.
12. Consider filing an extension at a POE if a visa exempt TFW needs to travel and CPCVegreville is taking too long to process the work permit extension at times an
application will have been made to extend a work permit through the inland processing
centre and a TFW is currently in implied status with a need to travel abroad. If this is the
case, consider providing the TFW with a copy of the submitted application to present at
the POE when returning to Canada so that a request can be made to have the work permit
adjudicated directly at the POE. However, always ensure that the LMIA confirmation is
approved and in the system. We also recommend that you do not apply for a work permit
at the port of entry when the existing work permit has already expired and the TFW is
within the restoration period. If applying through the POE is absolutely necessary, we
recommend that efforts be made to file the restoration application before going to the POE
and consider flying the TFW back into Canada through one of the airports versus flag
poling at a land crossing if the TFW is visa exempt.
Page 25
treatment they receive by CIC during the work permit assessment process at visa offices abroad.
Generally speaking, it is not a major issue for skilled workers to bring their family members with
them when they travel to Canada. However, this is not necessarily the case for all low skilled/wage
workers.
The reason for the differential treatment towards dependents of low skilled and skilled workers
rests in the underlying assessment as to the whether or not the visa Officers believes the TFW and
his/her family will return to their home country following the expiry of their work permits. This
burden is higher for a low skill worker for a number of reasons including: insufficient wage to
support a family in Canada on a single income, limited opportunities for PR status, and fewer ties
to their home country. Contrast this with skilled workers who tend to earn more money, have
options for their spouses to secure open work permits and a number of PR options should the
family decide to remain in Canada permanently.
As a result of the above assessment, some work permit applications for low skilled TFWs have
been refused when they attempt to include their family members within their application. These
refusals typically occur to visa required TFWs living in underdeveloped countries where there is
high unemployment, and few opportunities for the TFW to make an adequate living at home. In
these circumstances, the desire to remain in Canada illegally will be greater if the entire family
accompanies the low skill TFW. Therefore, we generally counsel low skilled workers to not
attempt to bring their family with them unless they have strong ties to their home country,
sizeable savings, significant travel history to other countries, and a wage level in Canada that
would allow for the support of an entire family.
As stated previously, regardless of whether or not the dependent family members accompany the
TFW to Canada, they must be fully disclosed and identified to CIC within the work permit
application materials. However, many of these concerns lessen for citizens of visa exempt
countries as there is a general sentiment that they are not forced to seek employment in Canada
for a better life and as such are less likely to remain in Canada illegally when their temporary
status documents expire.
Page 26
Page 27
Page 28
Page 29
Any discrepancies or proposed changes to the working conditions of the foreign worker should be
communicated immediately to ESDC. In some cases, a new LMIA may be required if noncompliance cannot easily be remedied through other means. While demonstrating compliance
poses great challenges for an employer, this significant burden can be made manageable with the
collection of documents, an intimate knowledge of work restrictions, and a greater understanding
of the expectations placed on employers by immigration officials.
Page 30
It usually takes approximately 2 weeks following the notice call to receive the ECR letter from the
Integrity Services Branch (ISO). There appears to be no practical reason why the letter is sent via
regular mail. Further, all correspondence must be mailed back to the ISO as they do not accept any
documentation through other means. The employer is often given just 30 days to submit the
response. Given the fact it can take almost 2 weeks to receive the letter, there is often less than 2
weeks to respond including accounting for sufficient time to courier the document to the ISO by
the deadline.
The ISO has asserted that the reason correspondence occurs via mail is to ensure confidentiality.
As all other information can be sent via facsimile or through the online application portal, it would
seem that the desire for confidentiality is at best a remote consideration. It would appear that the
ISO would rather have the ECR process take as long as possible. The completion of an ECR process
can take anywhere from one month to four or five months depending upon the circumstances of
each review. Employers found non-compliant for more serious violations can likely expect the
process to take many months to resolve with a series of questions and responses back and forth
with the ISO until non-compliance has been fully assessed and ultimately rectified.
It is important to note that although justifications do exist to allow an employer to explain why
innocent non-compliance exists, these justifications can only be used by an employer once. If a
subsequent ECR is triggered, the employer will no longer be able to rely upon the same
justification to explain non-compliance. Further, as indicated previously, the government has
proposed additional changes that would allow for monetary penalties regardless of the reason for
non-compliance. In essence, what is being proposed is close to an absolute liability regime.
Page 31
Please note that maintaining full compliance is important for not only ECR purposes, but to
minimize the risks associated with breaching employment standards legislation as well. When
filing an LMIA application, employers agree to allow information sharing to occur between ESDC,
the ISO, and other government bodies such as employment standards, workers compensation,
human rights etc. If a non-compliant employer has failed to properly pay overtime to a TFW, this
information may be shared with the respective Provincial employment standards body.
Information sharing can and does occur between the various government bodies.
The government is also seeking the legislative authority to compel banks and payroll
companies to disclose financial and other relevant data regarding an employer under
investigation. These proposals have not yet become law.
Page 32
We have enclosed within this handbook a sample ECR letter which provides a general guideline on
what can be expected when dealing with the Integrity Services Branch.
After providing the requested information, if non-compliance is found to exist, employers will be
offered a one time opportunity to provide justifications for initial findings of non-compliance
and, in specific cases, to take corrective action. However, if a second ECR is triggered, and noncompliance has been repeated, employers can expect a much less understanding Program
Integrity Officer.
Page 33
Service Canada
Integrity Services Branch
Address
Address
DATE
Employer
Address
Address
ER ID # _____
Dear _________________:
As per our telephone conversation on [date], the purpose of this letter is to inform you, as an employer
of temporary foreign workers (TFWs), of your responsibilities under the Immigration and Refugee
Protection Act and Regulations (IRPA/R). In accordance with the April 1, 2011 amendments to IRPR, all
employers who have employed a TFW during the period beginning two years immediately preceding the
application and who are seeking to hire TFWs, must demonstrate that the terms and conditions set out
in previous Labour Market Opinion (LMIA) confirmation letters and annexes were met. Namely, that
they have provided substantially the same (STS) wages, working conditions, and occupation identified
in the previous LMIA confirmation letter and annex.
As part of our employer compliance review, please find the enclosed checklist to be completed and a list
of documents to be provided. The review period will cover the two years immediately preceding the
date on which your current LMIA application was received. Only submit documentation for transactions
which occurred after [date]. The information can be submitted by regular mail only.
* When submitting documents that may contain personal information such as a social insurance
number, the name of an employer other than the TFW, or personal financial codes/bank account
numbers, as an employer, it is your obligation to protect personal information. Please ensure
care is taken to avoid the inclusion of this personal information. Once your documentation has
been reviewed, it may be necessary to contact you for further clarification.
During the review, where it is found that you have not provided wages, working conditions or an
occupation to a TFW that were substantially the same as the terms of employment as stipulated on the
LMIA confirmation letter and annex of the previous job offer, you will have the opportunity to provide a
rationale and undertake corrective actions. ESDC/Service Canada will work with you to implement the
appropriate compensation. Should you not provide a reasonable justification, refuse or only partially
implement compensation, you may be deemed ineligible for the Temporary Foreign Worker Program
Page 34
(TFWP). It is important that you be advised that a justification will only be accepted once. If you are
found to have failed an STS assessment, access to the TFWP will be denied for two years. Finally,
where there is reason to believe that you may have not fully adhered to the requirements of the TFWP,
ESDC/Service Canada may share this information with the relevant federal and/or provincial/territorial
bodies where appropriate authorities exist. 3
Your cooperation is appreciated and we look forward to receiving the documentation by [date]. NOTE:
Failure to submit the requested documentation will result in the refusal of your pending Labour Market
Impact Assessment (LMIA) application(s).
Please submit documentation by mail to the investigator below at the following address:
Officer
Address
Address
Address
Once your review has been assigned to an investigator, they will contact you by phone.
Sincerely,
Name
Integrity Services Officer
Number
Please note that in a recent ECR letter received by a client that was allegedly triggered by a disgruntled xemployee, the section in yellow was removed from the letter. This may be some indication as to the type of
ECR being conducted (i.e. LMIA triggered versus complaint driven).
3
Page 35
Site Visits
Coming soon will be a special section setting forth specific guidance regarding site visits and
what to expect when they happen. At the time of preparing this guide, no site visits had yet
taken place. We will ensure to update you regarding the ways in which you can minimize the
negative consequences of these surprise visits.
Topics covered will include:
Page 36
Online Resources
RECRUITMENT RESOURCES
WAGES
http://www.esdc.gc.ca/eng/jobs/foreign_workers/
Page 37
Tel 403.328.1441
Tel 403.236.7332
Fax 403.328.2229
Fax 403.236.7331
www.ht-llp.com
www.ht-llp.com
MARK HOLTHE
PARTNER
RYAN TILLEMAN
PARTNER
MARIANA HOHMAN
ASSOCIATE LAWYER
Tel 403.328.1441
Fax 403.328.2229
mholthe@ht-llp.com
Tel 403.236.7332
Fax 403.236.7331
rtilleman@ht-llp.com
Tel 403.453.2557
Fax 403.328.2229
mhohman@ht-llp.com
Page 38