Changes to the Temporary Foreign Worker Program - 2015
2015 has seen a number of changes to the Temporary Foreign Worker Program. We have classified these changes under 5 general headings:
The TFWP has added a new layer of classification to the Skilled and Low Skilled workers (see the old classification system here). A worker who is "skilled" or "low skilled" is now further classified as "higher wage" or "lower wage". The dividing line between these two groups is the median wage in a province ($25.00/hour in Alberta as of June 2015).
Different obligations, processes, and rights flow from your classification (low wage/low skilled, low wage/skilled, higher waged/low skilled, or high wage/skilled).
For example, lower wage workers will now have a very difficult and bureaucratic process to fulfill if they would like to come and work in Canada. However, low wage / low skill workers have several protections put in place to protect them from exploitation (for example, their transportation to and from Canada is paid by their employer).
High wage workers have much fewer hoops to jump through to come and work in Canada, but they do not have the same protections provided when they come to Canada.
This reclassification will make things most difficult for skilled/lower wage workers (for example, cooks). These workers will now have a difficult and expensive process to meet in order to come and stay in Canada. However, because they are not "low skilled", they do not have the protections in place that help prevent exploitation.
For all programs, the work permit gives a worker status to be in Canada for the time period that the permit is valid - whether or not the person is employed.
B. Increased Costs
The TFWP is regulated by individual employers who must pass a labour market test. If an employer wants to hire TFWs or review their contracts for existing TFW employees, they must first demonstrate that they tried unsuccessfully to hire Canadian residents, and hiring a foreign worker will not negatively impact the Canadian economy. If they satisfy this test, they are issued a document from Economic Development and Skills Canada indicating that they may hire foreign workers. An employer must have one of these forms to bring in foreign workers or to continue to employ the TFWs they currently employ.
Until very recently, this form was called a Labour Market Opinion (LMO). Only employers with positive LMOs could access temporary foreign workers. The LMO has now been replaced with a new certificate, called the Labour Market Impact Assessment (LMIA). LMIAs are essentially more complicated and expensive LMOs. An employer must provide additional information to the Canadian government in order to receive a positive LMIA. For example, employers must provide information on:
- the number of Canadians that applied for a job;
- the number of Canadians interviewed; and
- why Canadians were not hired.
Employers must also swear that they know it is an offence not to hire qualified Canadians.
The fees for LMIAs have been significantly increased. LMOs used to cost $275.00/worker. Now, it is now $1,000/worker. For low wage workers, an employer must get a new LMIA every year. There is no refund if an employer's request is unsuccessful.
Many migrant rights groups are concerned that this increased fee is not being paid by employers, but rather, is being passed on to TFWs. Many TFWs come to Canada through employment agencies that impose high finder's fees. Many migrant advocates are concerned that this increased fee will be imposed on migrant workers either directly, or through increased employment agency fees.
C. Decreased Employer Demand
Many changes to the TFWP are aimed at decreasing an employer's ability to rely on foreign workers. The changes are almost entirely focused on low wage workers.
If an employer wants to hire a TFW in a higher wage position, they must now file a Transition Plan in order to receive a positive LMIA. The Transition Plan must explain why the employer could not find Canadian talent to fill the job, and what they plan on doing in the long term to change that situation.
In the lower wage category, the new obligations are much more complicated and very restricted.
1. The Cap
By July 2016, employers who rely on lower wage TFWs cannot have more than 10% of their work be performed by TFWs per work location. To help employers get to this cap, the decrease to 10% is graduated. In January 2015, the cap was locked at 30% TFWs or the current level of TFWs (whichever was lower). By July 2015 the cap was reduced to 20%. By July 2016 it will be 10%.
2. Shorter Work Permits
Lower Wage TFW’s now need a new work permit every year (which is a decrease from the earlier requirement, which was every 2 years). In order to be issued a new work permit, a TFW must apply to Citizenship and Immigration Canada with a current LMIA. This means that, every year, an employer of lower wage TFWs must get a new LMIA (which costs $1,000/worker).
3. The Ban
There is a ban on hiring TFWs in certain unskilled jobs in economic regions where the unemployment rate is at or above 6%.
D. Shutting Down Paths to Permanent Residency
It is now more difficult than ever for TFWs to pursue permanent residency. Many provisions are aimed at preventing TFWs from setting down roots in Canada.
1. 4 & 4 Rule
Lower wage TFWs can only work in Canada for 4-year stretches. After the expiry of a 4-year work term, a TFW will not be issued another work permit for another four years. The 4 & 4 rule was passed in 2011. The first workers subject to the rule exhausted their work permits on April 1, 2015. Many migrant rights groups are concerned about the 4 & 4 rule because:
- It keeps the TFW workforce very weak in terms of rights advocacy and organization.
- It may contribute to an undocumented workforce. There is a significant fear that workers who have expired permits will not leave the country, but will stay working for their employer (or anyone else who will hire them).
If they become undocumented, these already vulnerable workers will become even further marginalized and prone to exploitation. They will be even less likely to complain about employer abuse or poor working conditions, and they will be very limited in their ability access government services.
There have already been some problems enforcing the 4 & 4 rule. Specifically, many workers who are subject to the rule have applied for permanent residency but are waiting for the government to tell them if their applications were successful. These people have been issued temporary 'bridging permits' to stay and work in Canada past the 4-year expiration date.
Bridging permits will be issued to people whose applications for permanent residence have been accepted for processing. However, the bridging permit is not available when workers receive the "Invitation to Apply" for permanent residency. They must wait until they have made a full application and Citizenship and Immigration Canada has accepted the application for permanent residency. These workers are exempted from the 4 & 4 Rule, and their employers do NOT have to obtain an LMIA to employ them.
Note: A bridging permit is not available to workers who obtained Alberta Immigration Nominee Program and have applied for permanent residency. There are other provisions that allow someone with the Alberta Immigration Nominee Program (AINP) to apply for a new work permit without having an LMIA (they must submit their current AINP nomination certificate with their work permit application.)
2. Caregiver Program
There have been substantial changes to the caregiver program which have the effect of closing doors to permanent residency. Historically, live-in caregivers were offered a relatively clear path to permanent residency after working under their temporary permit for 2 years. That is no longer the case.
Now, after two years of service, caregivers may apply for permanent residency under one of two streams (child care or elder care). There are now educational and language restrictions on these applications. There is also a new cap that will limit the number of applications that will be approved each year. At present, that cap is 5,500 for both streams.
E. Protective Provisions
The government is increasing its inspection frequency and powers. Every year, federal government plans to inspect 1 of 4 employers. They can do onsite visits without an warrant, and during these inspections, they can interview TFWs.
Employers who break the rules can be banned from the program, or be issued a fine of up to $100,000.
2. Rights Package
TFWs are now given a pamphlet that explains their rights when entering Canada. A copy of this pamphlet (in English) is available here.
Caregivers no longer have to live in the residence of their employer to qualify under the program. This is a positive and much-needed change, as live-in caregivers were extremely vulnerable to exploitation and abuse as a result of living with their employer.