These five best practices will help mitigate non-compliance risks.
Meghan Felt, Partner McInnes Cooper
5 key best practices for employers
As labour and skills shortages persist, Canadian businesses are increasingly looking to Temporary Foreign Workers: workers who are legally and temporarily in Canada for the purpose of working under any Canadian immigration program. It’s critical that employers of Temporary Foreign Workers comply with immigration laws, or both they and the Workers could face enforcement mechanisms with teeth: employers risk fines; hiring bans; public naming and shaming; and even jail time. Workers risk detention, deportation, or removal; difficulty entering Canada in the future or obtaining Permanent Residency; and a ban on reapplying for entry.
ONE
Know the rules and processes.
The main sources of the rules for hiring and employing Temporary Foreign Workers are the Immigration and Refugee Protection Act (IRPA), its Regulations, and the Operational Instructions and Guidelines of Immigration, Refugees and Citizenship Canada (IRCC) and Canada Border Services Agency (CBSA). Many rules apply to hiring and employing a Temporary Foreign Worker. Here are three main ones:
With a few exceptions, IRPA prohibits a “foreign national” (someone not a Canadian citizen or Permanent Resident) from entering Canada to “work” without first obtaining a Work Permit (a.k.a. “Work Visa”): the basic instrument authorizing a foreign national to enter Canada to work as a Temporary Foreign Worker. To determine whether a foreign national will “work,” IRPA focuses on their activities, not what they’ve labelled the arrangement.
While there are many exceptions, before the government issues a Work Permit, the employer must often obtain its permission to hire a Temporary Foreign Worker in the form of a Labour Market Impact Assessment (LMIA). The LMIA process tends to be lengthy and costly, changes to its guidelines frequent, and its nuances numerous.
With few exceptions, employers seeking to hire a Temporary Foreign Worker in LMIA-exempt circumstances must typically instead submit an Onine Offer of Employment as a Work Permit prerequisite. This process is generally faster, easier, and less expensive than the LMIA process.
TWO
Review work permits.
A critical component of due diligence is to review the Temporary Foreign Worker’s Work Permit, focusing on these key fields to confirm they are complete and accurate: the Worker’s family and given name(s); “personal data” (birth date, sex, countries of birth and citizenship, travel document number) and occupation; the Work Permit expiry date; the employer’s name and location; and any other notes, comments, or conditions (such as any prohibitions).
THREE
Review LMIA(s) and online offers of employment.
Due diligence also entails a review of the LMIA or the Online Offer of Employment, both for accuracy and for consistency between it and the Temporary Foreign Worker’s Work Permit, employment contract, and actual working conditions (such as wages, benefits, hours, job description and duties, and employment location).
FOUR
Review employment contract(s).
A well-drafted and properly implemented written employment contract is as important for Temporary Foreign Workers as for all employees. Due diligence includes reviewing the employment contract to ensure that it’s consistent with the relevant LMIA or Online Offer of Employment, including these key terms: wages, benefits, work hours, job description and duties, and employment location.
FIVE
Make and maintain records.
The IRPA requires most employers to keep all records relating to a Temporary Foreign Worker for six years, and Employment and Social Development Canada (ESDC) is authorized to conduct random audits of those records. Employers need to be prepared. For each Worker:
Create and maintain a well-organized, readily accessible file, with a copy of their immigration authorization (Work Permit), LMIA or Online Offer of Employment, employment contract, timesheets, passport, T4s, record of employment, and so on.
Review all business records, including payroll, time sheets, and CRA filings, to ensure they’re accurate and consistent with the Worker’s LMIA or Online Offer of Employment, and Work Permit.
Understanding the rules and processes, exercising due diligence with respect to documentation, and keeping good records will help the employer ensure compliance with immigration laws, and reduce the risk of enforcement mechanisms for both it and the Foreign Workers it employs.
Meghan Felt is a Partner at the McInnes Cooper St. John’s office with a practice specializing in immigration law.
To discuss this or any other legal issue, contact any member of McInnes Cooper’s Business Immigration Team. Read more McInnes Cooper Insights and subscribe to receive those relevant to your business.
This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. ©McInnes Cooper, 2019. All rights reserved.
Meghan Felt is a seasoned immigration lawyer based in McInnes Cooper’s St. John’s office. She represents both employers seeking labour market impact assessments and work permits to hire foreign workers, and individuals seeking temporary resident visas, study permits, work permits and permanent residency. Contact Meghan at meghan.felt@mcinnescooper.com or 709.724.3628.