So far it’s been a quiet 2012 for the immigration bar, except for one area that is heating up: the myriad issues facing the Temporary Foreign Worker program and new temporary foreign worker audits.
Citizenship and Immigration Canada and Service Canada are making efforts to essentially clean up the current immigration program. There are relatively few among us who are against efforts to ensure program integrity, but the current process Service Canada has employed seems to be adding to the problem rather than alleviating it.
At present, Service Canada processing for a labour market opinion in most provinces is beyond 12 weeks. This means it is a minimum of three months before a foreign national can even contemplate applying for a work permit. If the foreign national needs a visa, add three more weeks of processing time. As a result, Canadian employers who are hiring foreign workers cannot rely on a foreign national joining their company for upwards of four to six months.
While this type of delay is difficult, it can be planned for when hiring a new foreign worker who is currently abroad. If the foreign worker is a current employee, this delay can be maddening.
A two-step process is needed when a person requires an LMO in order to obtain a work permit. The first step is for the employer to apply for the LMO itself through Service Canada. One of the issues with this program has always been a potential for fraud. Until recently, there has been little policing of the program, save for when an applicant would file for renewal. Now, Service Canada has imposed greater requirements on the program, and has been granted authority to perform audits of a Canadian employer to evaluate the employer’s compliance with the matters raised in previous immigration applications.
On paper, it sounds like a good plan. Requiring more upfront documentation to satisfy the officer of employer need and compliance will hopefully ensure that foreign workers are allowed in only when truly required by a business. And audits will ensure that companies are paying workers what they promised and providing safe working conditions.
In reality, it has caused an enormous slowdown. In Ontario, processing times are more than 13 weeks for an LMO. When an employer is randomly selected for an audit, this time can jump by days or even weeks, depending on the type of documentation requested. During the audit process, LMO processing is stopped on all applications pending. The processing times at Service Canada have increased while Citizenship and Immigration Canada’s visa renewal processing has decreased. This has caused foreign workers to lapse out of status for indefinite periods of time while Service Canada processes the LMO.
While to a degree, preparation can alleviate this from happening, there is a point where it becomes an enormous burden. For example, let’s say an employer has recruited for a position and the best person for the job is a foreign national who requires a visa. The employer can file for a one-year LMO now (the anticipated length of the project) and wait approximately 14 weeks for processing. Four months from now, the employee can apply for a work permit. Five weeks later, the foreign national is issued a one-year work permit and comes to Canada to commence working. Almost five months have passed since the Canadian employer identified a potential foreign worker.
Now let’s say the project has been extended by an additional year. To renew the one-year work permit, the employer must go through this same process again. The employer must re-evaluate the labour market prior to filing a request to retain the foreign national in this position. Advertising must be done, so add two more weeks. Another five months will pass, at which time the foreign national will need to immediately apply for an extension of his/her work permit through the Case Processing Centre in Vegreville, Alta. This can take approximately two months. Then the foreign national must reapply through a visa post abroad for his Canadian visa in order to allow him to travel. Another four to six weeks.
All told, the renewal process also took approximately eight to nine months. Effectively, the employer must begin the process of renewing the LMO and work permit the moment the foreign worker begins working! It places employers in an endless loop of renewal, which is both counterintuitive and counterproductive.
In fairness to Service Canada, whenever a major change or overhaul of this nature occurs, delays and speed bumps are bound to happen. Hopefully, as the program continues and both Service Canada and immigration practitioners become more familiar with audits and additional requirements, the system will move faster once again.
The labour market needs to be protected, foreign workers need to be protected, and employers need to be held accountable. But while these new rules are being ironed out, Canadian businesses and temporary foreign workers are caught in a seemingly opaque system that is frustrating and costly in terms of both time and productivity.
