Attracting foreign workers

These assessments suffer from lack of transparency and clear policy from Ottawa, says Jacqueline Bart, principal and founder of BartLaw Canadian Immigration.

Lawyers like Bart deal with ESDC officials when they advise clients undergoing the LMI assessments and she says the various offices throughout the country handle cases differently, leaving her and her colleagues not knowing what to expect or tell clients.

“It’s basically a crapshoot,” she says. “It’s like pin the tail on the donkey. That’s the whole labour market impact assessment process.”

The federal government should come up with a clear, comprehensive standard to apply to the LMI assessments, she says. “The government’s been promising a manual and a clear policy and for years. Immigration counsel throughout Canada are extraordinarily frustrated by this.”

Part of the reason LMI assessments can be unpredictable is because of the discretion that the ESDC officials have regarding each case. Gabriela Ramo, senior associate and senior manager at KPMG Law LLP, says that, while the inconsistency this creates in the LMI assessment process is frustrating, she is apprehensive about limiting that discretion.

“You don’t want the pendulum to swing too far the other way,” she says.

“I agree that it’s frustrating that if you file two identical applications you could get two different answers,” she says. “But I am always a little bit nervous about pushing too much on that discretion side because we also don’t want a rigid system where there’s no flexibility for unusual circumstances.”

To complete an LMI assessment, the employer must advertise the job for a month and if there are applicants, explain to the ESDC why those candidates are not sufficient. They need to show they will be paying and providing working conditions up to Canadian standards.

Completing an LMI assessment can take between three and five months. But the process can be even more time-consuming, according to David Nurse, counsel at McInnes Cooper in Halifax. He says he recently had a case in Alberta where the ESDC official took 183 days to look at the application.

“Think about the contradiction there. The employer has to demonstrate that there’s a pressing need to hire a foreign worker . . . but the application isn’t looked at for six months,” he says.

In spring 2017, the Alberta government, led by Premier Rachel Notley’s NDP, responded to the economic downturn in the province with an initiative intended to curb the use of temporary foreign workers.

“That to me is kind of a worrying trend that the federal government and the provinces work together to make the system more and more complex depending on the political will [of] the provincial government of the day,” Nurse says.

ESDC has a list of 31 occupations for which it will refuse to process LMI assessments in the province of Alberta. Most of the excluded positions are in the oil sector.

The federal government recently initiated the Global Skills Strategy, which was meant to speed up processing times for employers seeking specific kinds of workers. For those who qualify for this program, and are not exempt from the LMI assessment process, employers must complete a labour market benefits plan to demonstrate that, depending on the type of job being hired for, the employer either creates jobs for Canadians or invests in skills and training of Canadians and permanent residents of Canada. With the Global Skills Strategy, the government promises a two-week turnaround on the LMI assessment.

“A lot of the issues that you find in the regular LMIA process have been addressed in this pilot program,” says Naumaan Hameed, partner and Canadian immigration practice leader at KPMG.

“What I value with the Canadian system is there’s an open dialogue in the ability to recognize opportunities to change and bring value to employers, while not sacrificing the integrity of the program,” he says.

While Ramo and Bart see discretion and diversity among those administering labour market impact opinions, Nurse sees strict, by-the-book inflexibility.

“The criteria for the program are presented in a very, very, very rigid way and administered in a very rigid way,” he says. “It’s very frustrating. My advice to clients is if you can avoid the temporary foreign worker program and the LMIA, then you should do so.”

The temporary foreign worker program is one of several federal and provincial business immigration programs. For those exempt from the LMI assessment process, there is the international mobility program.

These exemptions are provided for by ss. 204 to 208 of the Immigration and Refugee Protection Regulations and apply to occupations specified in international agreements such as the North American Free Trade Agreement and other trade deals, those considered a “significant benefit” to Canadian interests, those with “no other means of support” like refugees and those exempt for “humanitarian reasons,” such as “destitute students.”

Before the Economic Action Plan 2014 Act eliminated them, Canada also had the Immigrant Investor and Entrepreneur programs. These programs allowed people to settle in Canada if they established and maintained a business and made a financial deposit with the government, which they would eventually get back without interest.

“The public policy research doesn’t support that kind of program and the reason why the governments have generally been moving away from that is that they find that those programs have relatively low benefit to Canadians,” says Paul Hesse, partner at Pitblado Law in Winnipeg.

These passive programs, where an amount is paid, net worth is shown and the candidate has a path to permanent residence without actively starting and running a business in Canada, are now only replicated in Quebec, with the Quebec Immigrant Investment Program.

Robin Seligman of Seligman Law in Toronto says the Quebec program is flawed as many who use it do not stay in Quebec.

“Unfortunately, the money does not filter back into the economy and the people who use that program don’t stay in Quebec,” she says.

Seligman would like to see a new passive investor program instituted federally, where applicants give a gift to the federal government that they then can put toward health care, infrastructure or other government services.

“I would allow no commission on that. No intermediaries, no commission. Just a straight-up program for people that have a business background, they have the net worth and they’re willing to make a payment,” she says.

Canada’s self-employed immigrant program is for those who have “taken part in cultural activities or athletics at a world-class level or been self-employed in cultural activities or athletics.”

Seligman says she would also like to see the self-employed program extended to those with exceptional talent in areas other than just sports and culture.

In 2015, the federal government reformed the temporary foreign worker program, establishing a compliance regime that includes random, warrantless inspections. The audits are intended to ensure that employers have held true to their employment offers, not changing the salary, work conditions, location or position of the foreign worker.

Partly because of the changes to the program, after reaching a peak of 199,218 in 2012, the number of temporary foreign workers approved by ESDC is on the decline with 90,211 approved in 2015, according to an ESDC report on the TFWP.

The changes were meant to prevent the abuse and exploitation of foreign workers, such as when the caregivers hired by former Liberal MP Ruby Dhalla to look after her mother said they were assigned tasks like cleaning offices and washing cars and made to work 16-hour days while having their passports kept from them. The program’s changes partly stemmed from this scandal.

But the new regime is creating unintended hassles for companies that use the federal foreign worker programs, say immigration lawyers. Not only are companies out of compliance if they pay a temporary foreign worker less than promised, but companies cannot raise the salary, change the duties or give bonuses to highly paid executives either.

“If someone in the company comes over and they’re fabulous and you want to give them a big raise, you can’t do it,” says Seligman. That is because there cannot be a “substantial change” in the employee’s contract without filing a new work permit.

“Protect vulnerable people. You don’t need to protect the CEOs from being overpaid,” she says.

Bart says employers do not seem to understand how strict the new compliance regime is.

“Ever since December of 2015, the changes are dramatic and employers still don’t understand it,” she says. “Good counsel will be very careful on how they address simple compliance filings . . .  as well as ensuring that if there are any changes to the employees’ working conditions, as settled in the employer compliance filing, that a new work permit is obtained and a new employer compliance document is filed in advance of the changes as opposed to after them,” Bart says.

Employers using the foreign worker programs are subject to random audits to ensure compliance. Hesse says he hears from employers that the random auditing feels like overkill.

“Some employer complaints with respect to LMI assessments are that the government’s gone to an extreme and it seems like everyone is being audited at all times,” he says.

“It seems that companies can be going through three or five audits for various locations all at the same time.”

Similar programs exist at the provincial level. For example, the Ontario immigrant nominee program allows those with a minimum net worth of $1.5 million, or $800,000 outside the GTA, to make an investment ($1 million in Toronto and $500,000 outside of Toronto) into a business of which they own a third and provided they demonstrate a viable business plan, to settle and be eligible for permanent residence in Canada.

Most other provinces have similar programs with varied investment and net-worth requirements. For example,  Nova Scotia only requires a net worth of $600,000 and investment of $150,000.

The problem with the provincial nominee programs, says Seligman, is there are no small-business options. The required investment and net worth are too high, she says.

“Whether they are serving employers’ needs, I can only speak with respect to my clients and the answer would be a definitive no. There is no small-business program,” she says.

According to Seligman, another problem is that those who receive the temporary work permit lose their and their family’s status if they do not meet all the terms and conditions.

It is a tough sell to get people to give up their business abroad and come to Canada with a business idea, if when the business does not work out, they lose everything, she says.

“It seems to me that the only people benefiting from this are the consultants who are selling the program,” she says.

Peter Rekai of Rekai LLP in Toronto says few use the provincial programs. Many who intend to start and manage a business in Canada avoid the provincial programs, hiring themselves as an employee and coming though the TFWP.

“They’re not straightforward. They involve people showing more money. They involve looking at assets. They involve evaluating businesses. They’re not very useful,” he says.

“They’re not highly used as a result, particularly in Ontario.”

Manitoba is revamping its provincial business immigration program, and Hesse says the changes represent a trend where provincial programs are becoming more similar.

“The federal government is trying, I would say, to create similar programs in the various provinces. I think we’re seeing less variation in provincial business programs than before,” Hesse says.

The person applies, gets a work permit, begins operating their business and after a verification period they will be nominated by the province to get permanent residence. A language requirement has been added, the minimum net worth and investment requirement has increased and a deposit is no longer taken from the applicant.

The Atlantic Immigration Pilot program is like the Manitoba program, and is a partnership between the federal government and the four Atlantic provinces.

Nurse, who practises in Halifax, says the program is working well and it is always good to have another option to work with, but employers are averse to some aspects of it, such as the language requirement and the responsibility to pay for language training for families.

“I think it’s a good integrity measure, but it’s not something you know a Filipino cook with just a high school [diploma] is going to do proactively,” he says.

“Employers are very willing to support settlement overall, but they do get a little bit risk averse when it comes to signing off on unspecified financial commitment,” he says.