New Challenges With LMIA Exempt Work Permits: Employer Compliance Reviews To Be Conducted

On February 23, 2018, Immigration, Refugees and Citizenship Canada (“IRCC”) released a program delivery update, setting out instructions immigration officers must follow when assessing employers under the International Mobility Program  (“IMP”) during work permit processing.

Officers must now conduct a more stringent employer compliance review of the wages, occupations and working conditions provided to previous temporary workers. Officers are also now required to assess the genuineness of the Offer of Employment provided in support of work permit applications.

Below we have provided an overview of the employer compliance review process. Read more about assessing the genuineness of an Offer of Employment in our companion blog

What Type of Work Permit Applications Are Affected?

The IMP is an immigration program that allows employers to hire foreign workers to fill short-term labour and skill shortages without the need for a Labour Market Impact Assessment (“LMIA”).

Although employers do not have to secure an LMIA when using the IMP, they are required to submit an Offer of Employment, containing critical details regarding the employer, foreign worker, occupation, wage and working conditions before the work permit application is made. This is generally a faster work permit process; however, the increase of compliance reviews may cause new delays.

Review of Wages, Occupation and Working Conditions Provided to Previous Temporary Workers

Officers have always had an obligation to verify the occupation, wages and working conditions provided by employers to past foreign workers when processing new work permit applications. This being said, the program delivery update clarifies this requirement, making it a mandatory reviewing obligation of the officer. This is in addition to other employer compliance investigations that may occur.

As a result of the program updates, employer compliance reviews of past occupation, wages and working conditions will become more common, and employers can expect delays in IMP work permit processing and a possible increase in full investigations being triggered. When conducting these reviews, the officer may look back over the six-year period preceding the date of the work permit application.

Reviewing the Occupation

The officer must be satisfied that the occupation and duties performed by previous temporary workers fell under the same occupation as stated in prior submissions. To verify this, the officer will look at the NOC code and job duties to see if there is a match. As this is a “same” occupation test, there can be very little deviance from the job duties provided, the generalized job duties in the NOC, and what job duties were actually performed by the foreign worker.

Reviewing Wages

Legislation requires employers provide foreign workers with wages that are “substantially the same, but not less favourable” than those stated in previously submitted Offers of Employment to other foreign workers. If it is found that an employer did not live up to its previous representations, the current work permit can be delayed and possibly refused.

In addition, wages under the IMP must meet the minimum wage requirement in the province of employment in order to comply with federal and/or provincial laws. For wages paid in a foreign currency, the wage must be verified at the time of the work permit application to ensure that it meets the requirements of the minimum wage standards.

Reviewing Working Conditions

Officers are instructed that working conditions may include non-wage-related remuneration benefits and entitlements (as detailed in the Offer of Employment), including:

  • location of employment;
  • statutory holidays, sick days and vacation days;
  • hours of work (including overtime);
  • transportation costs (where applicable);
  • accommodations, conditions and costs (where applicable);
  • health or medical insurance; and
  • other non-taxable benefits.

Officers must ensure that employers have complied with provincial and territorial legislation (for working conditions and workplace standards) such as obligations around dismissals and rights to file complaints and occupational health and safety regulations and recruitment laws in order to meet IMP requirements.

Results of Officer Reviews

Employers must ensure that they are complying with all requirements for wages, occupation and working conditions for both current and past foreign workers. If an officer has any concerns that the employer did not meet any of the commitments, the processing of the work permit can be put on hold.

As a result, employers must ensure the following commitments:

  • employment in the same occupation as that set out in the foreign national’s Offer of Employment;
  • similar but not lower wages and benefits than offered;
  • working conditions that were substantially the same but not less favourable than those set out in their offer; and
  • whether information is available which indicates that there could be ground to make that negative determination.

Once on hold, the matter will be referred to IRCC’s Case Management Branch of Immigration. The Case Management Branch will conduct a full investigation to determine whether the employer has been compliant. During an investigation employers are provided the opportunity to respond and explain any non-compliance as complaint or provide legislated justifications.

If non-compliance is found and not justified, the work permit will be refused. The employer will also be subject to standard non-compliance sanctions which can include fines, program bans and/or addition to the public non-compliance blacklist.

As such, employers must ensure that, when submitting new Offers of Employment under the IMP, they have complied with wages, occupation and working conditions for past temporary foreign workers to ensure smooth processing moving forward.

MLT Aikins has significant experience advising clients with regards to immigration matters. Our lawyers in this practice area would be pleased to discuss the recent IRCC program delivery updates and how they may impact your business and foreign workers.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.