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:
In 2015, many features of the TFWP were overhauled. A new layer of classification was added to the Skilled and Low Skilled workers (see the old classification system here [link to what is the TFWP?]). Now, a worker who is "skilled" or "low skilled" is 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, $25.36/hour as of April 2016).
Different obligations, processes, and rights flow from this classification (low wage/low skilled, low wage/skilled, higher wage/low skilled, or high wage/skilled).
For example, lower wage workers have a more 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 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 made things more difficult for skilled/lower wage workers (for example, cooks). These workers 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.
This form used to be 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 of the 2015 changes to the TFWP were 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
The 2015 changes stipulated that, by July 2016, employers who rely on lower wage TFWs could not 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% was 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%.
2. Shorter Work Permits
Lower Wage TFWs 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
The 2015 changes imposed 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
The 2015 overhaul made it more difficult for TFWs to pursue permanent residency. Many provisions were aimed at preventing TFWs from setting down roots in Canada.
1. 4 & 4 Rule
Lower wage TFWs could only work in Canada for 4-year stretches. After the expiry of a 4-year work term, a TFW would 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 were 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 workers become further marginalized and prone to exploitation. They are even less likely to complain about employer abuse or poor working conditions, and they were very limited in their ability access government services.
In 2016, the 4 & 4 rule was abandoned. For more information, click here.
2. Bridging Permits
While it was in force, there were problems enforcing the 4 & 4 rule. Many workers who were subject to the rule had applied for permanent residency, but were waiting for the government to tell them if their applications were successful. These people were issued temporary 'bridging permits' to stay and work in Canada past the 4-year expiration date.
Bridging permits were issued to people whose applications for permanent residence were accepted for processing. However, the bridging permit was not available to workers who only received the "Invitation to Apply" for permanent residency. These workers had to wait until they made a full application - and Citizenship and Immigration Canada accepted the application for permanent residency. These workers were exempted from the 4 & 4 Rule, and their employers did not have to obtain an LMIA to employ them.
3. Caregiver Program
There were substantial changes to the caregiver program that effectively closed 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. This 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 new 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.
E. Protective Provisions
The government increased its inspection frequency and powers. Every year, federal government planned to inspect 1 of 4 employers. They can do onsite visits without a 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 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.