Overview
Employment and Social Development Canada (ESDC) has subjected many employers to immigration inspections under the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). Possible penalties for non-compliance include warning letters, monetary penalties, temporary bans from using those programs, and permanent bans. Employers need to be ready to address these inspections.
In September of last year, we wrote about the Office of the Auditor General’s (AG) report regarding an audit of the TFWP. Among other issues, the report found that ESDC had been relatively lax in its review of the market needs for Temporary Foreign Workers (TFW) and in conducting enforcement and compliance reviews of employers. In response, ESDC adopted a set of new policies to address the criticisms leveled against it, the effect of which were felt almost immediately. Its approach has been adopted in parallel by Immigration, Refugees and Citizenship Canada (IRCC).
ESDC reported that it conducted 2,800 inspections out of more than 22,000 employers who received a Labour Market Impact Assessment (LMIA) under the TFWP in 2018. Following recommendations from the AG, ESDC also introduced unannounced on-site inspections as part of its efforts to further strengthen the compliance regime.
Inspections are used by ESDC and IRCC to determine whether employers using the TFWP or IMP are compliant with the requirements of each program. When inspections reveal non-compliance, possible penalties include warning letters, monetary penalties as high as $100,000 per offence, temporary or permanent bans from using these programs and publication of the employer’s name on the IRCC website with details of the violation.
As a result, employers must be aware of these inspections and mindful of how to best prepare for them to avoid a finding of non-compliance.
TFWP and IMP
The TFWP allows Canadian employers to hire foreign workers to address temporary labour shortages, so long as an employer can demonstrate that no Canadians or permanent residents are available to fill the role. This determination is typically done through a LMIA. If the assessment reveals that no other Canadian worker is available to do the job and there is a need for the foreign worker, ESDC will confirm the employer’s job offer to the TFW in the form of a positive LMIA.
Alternatively, the IMP allows an employer to hire a temporary worker without the need for a LMIA. The exemption from the requirement to obtain an LMIA is often much less onerous for a prospective employer.
Inspections
Inspections are used to determine an employer’s compliance in regards to the employment of a TFW under the Immigration Refugee Protection Regulations (IRPR). An inspection may be conducted through a paper-based administrative review process or an on-site inspection of the employer’s workplace. An inspection may be triggered by an employer’s past non-compliance, random verification or reason to suspect non compliance.
ESDC and IRCC assesses an employer’s compliance based on the criteria established in the IRPR, including whether it:
- has provided each TFW with employment in the same occupation as stated in the offer of employment;
- has provided each TFW with wages that are substantially the same as those in the offer of employment;
- has provided each TFW with working conditions that are substantially the same as those in the offer of employment;
- has provided accurate information in the context of an LMIA application;
- is in compliance with federal and provincial/territorial laws that regulate employment and recruitment in the province/territory in which the foreign worker is employed; and
- has made reasonable efforts to provide a workplace that is free of abuse.
While authorized to conduct on-site inspections without notice, these types of inspections are typically reserved for situations where ESDC/IRCC determine that there is a high risk of non-compliance and the safety of TFWs may be at risk. On-site inspections under the IMP are conducted by ESDC on IRCC’s behalf.
If an inspector determines that an employer may be non-compliant during an inspection, ESDC/IRCC provides the employer with an opportunity to respond to any issues before a final determination is made. If the employer is unable to explain the discrepancies and/or address them through corrective action, ESDC/IMP will notify the employer in writing of the violation(s), and potential administrative penalties or bans from using the TFWP or the IMP, and subject to IRPR, provide the employer with one additional opportunity to provide information that demonstrates the issue has been resolved.
Prevention
The Immigration and Refugee Protection Act (IRPA) and its regulations create significant responsibilities and obligations for employer under the TFWP and the IMP. A finding of non-compliance can carry serious consequences for the employer, including monetary penalties or being excluded from using the TFWP and the IMP. As a result, employers are well advised to regularly review their activities related to the employment of TFWs to ensure they continue to meet the conditions of the IRPA, the TFWP and the IMP.
Please do not hesitate to contact a member of Borden Ladner Gervais LLP’s Immigration Law Focus Group for more information on how we may assist your organization with respect to its global mobility needs, including compliance with IRCC’s Employer Compliance Regime.
