New Requirements for Canadian employers who employ foreign nationals
New IMP Requirements
The Immigration and Refugee Protection Regulations were amended, effective September 26, 2022. Canadian employers of foreign nationals, including workers under the Temporary Foreign Worker Program (TFWP) and now also workers under the International Mobility Program (IMP) must comply with a number of requirements. Failure to comply with the new laws can have serious consequences, including various levels of violations, that carry with them administrative monetary penalties, periods of ineligibility where employers are prohibited from employing foreign nationals, the suspension and cancellation of existing Labour Market Impact Assessments (LMIAs), and the publication of the names of corporations who violate the law. Ensuring that your HR processes are up to date is essential to avoid losing important staff and also key to avoiding public embarrassment.
The 13 new regulatory amendments were announced September 26, 2022. Part of the Government of Canada’s rationale was to deter “bad actors” from participating in Immigration programs and also to conduct further inspections with consequences for those who fail to follow the requirements. The Regulations already had provisions to protect TFWs under the TFWP (LMIA based work permits). What is new is the extension of requirements to TFWs under the IMP (LMIA exempt work permits).
Which employees might be under the IMP?
The IMP is a broad way of describing a number of Immigration programs under which many Canadian companies hire foreign workers.
The IMP includes:
Employer specific work permits under International Experience Canada (IEC), including the young-professional and co-op or internship categories
Intra-company transferees (ICT)
Professionals and other workers under International Free Trade Agreements such:
(Canada–United States–Mexico Agreement (CUSMA) formerly NAFTA),
Free Trade Agreements between Canada and Chile, Peru, Colombia, Korea, and Panama,
Canada-European Union Comprehensive Economic and Trade Agreement (CETA) ,
Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)
Francophone Mobility workers (C16)
Other categories of workers under employer-specific work permits including Reciprocal Employment (C20) and Significant Benefit (C10)
Who needs to comply with the new laws?
All Canadian employers need to comply with the new laws if they have a foreign national employee under the TFWP (all LMIA based employees) or under the IMP with an employer-specific work permit. If you are an HR manager of a Canadian company, make sure to update your corporate immigration policies and procedures immediately.
What are Canadian corporations required to do?
A quick summary of what Canadian Employers need to do right away are as follows but please consult with an immigration lawyer and review the new Regulations in detail:
On or before a Foreign National’s first day of work in Canada, ensure that you have provided your Temporary Foreign Workers (TFWs) with information about their rights in Canada [failure to do so is a Type B violation].
During a TFWs employment, make sure that information about TFW rights in Canada is posted and readily available at the workplace (you could make the information available by paper or electronically, either by posting the information in a lunch room or by making it accessible on the company website) [non-compliance is a Type B violation].
Provide a signed employment agreement (which may be different than the offer of employment which employers upload to the Employer Portal) to the employee. The employment agreement must be signed and dated by both the employer and the employee and it must include the same occupation, wages, and working conditions as what is attested to in the Employer Portal. The employment agreement must be either in English or in French, whichever is the preferred chosen official language of the TFW. Employers must give a fully executed copy of the employment agreement to the TFW before submitting an offer of employment to IRCC through the Employer Portal. Note that the Employer declarations have now changed in the Employer Portal to reflect the new rules. [Failure to comply is a Type A violation.]
Ensure that the workplace is free from abuse and is free from reprisal if an employee reports the employer for violations. [Non-compliance is a Type C violation.]
Employers are not allowed to charge or recover, either directly or indirectly, any fees related to the TFWs recruitment either before their employment or during their employment. Employers must also make sure any person acting on the employer’s behalf has not and will not charge or recover these fees from the TFW. Prohibited fees include referral or placement services, advertising, arranging interviews, confirming credentials, payments for recruitment services, and more. Make sure the Canadian employer pays the recruiter and that the recruiter in registered with the recruiter registry in their Province or Territory where applicable. Have a process in place to clearly communicate the fact that recruitment fees are not recoverable from TFWs with the TFWs and follow up with employees to ensure they are never charged recruitment fees. Make sure to sign contracts with properly accredited recruiters that highlight these requirements. {Violations are Type C violations.]
Provide access to health care services if a TFW is injured or becomes ill at the workplace. Employers must make reasonable efforts to provide access to health care services when a foreign national is injured or becomes ill at the workplace. Assisting an ill or injured TFW at the workplace might include giving the worker time off to seek medical attention, calling emergency services, or giving the TFW information on how to get health care. [Non-compliance is a Type C violation.]
If your company’s workforce includes anyone who is not a Canadian Citizen or Permanent Resident, then you are likely employing a foreign national under the TFWP or the IMP. Make sure that you understand and implement the new Regulations without delay. If you require assistance in reviewing and updating your corporate Immigration policies and procedures, please book a consultation.
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