MARANI LAW

The recently implemented broad changes to the temporary foreign worker (TFW) program in Canada are making the process of hiring foreign workers far more onerous for Canadian employers. The significant changes were implemented in order to encourage employers to hire Canadian citizens and permanent residents. Nevertheless the employers in a range of high and low skilled careers across the country rely the TFW program to hire much needed labor.

Amongst the changes, the fee has increased to $1000.00 from $275.00. Prior to April 2013, there was no fee at all. In addition, employers hiring foreign workers that are deemed high-wage earners, are required to complete a Transition Plan in which the company must detail how the company plans to hire Canadians or permanent residents for the position in due course or their plan to transition the foreign worker to permanent residence.

One of the positive changes is a 10-day processing time for high-income earners in the top 10% of wage earners in their respective province. In order to be considered high income, the prevailing wage for the position offered (according to the National Occupation Classification (NOC)) must be higher than the median wage of the province; and to be considered in the top 10%, the wage must be the same or greater than the provincial top 10% wage. This change however does not reflect the specialization of certain careers which may be paid well above the median wage that fit into NOC codes which have lower prevailing wages, making processing benefits null.

Seasonal employers hiring temporary foreign workers at places such as ski resorts, those hiring skilled workers such as doctors all face complications within the new system. For many employers the cost will be a substantial barrier to hiring foreign workers, and for others, the lack of flexibility for specialized skills has not been accounted for under the current system. For instance, doctors who often work between clinic, hospitals, nursing homes, etc. would require multiple applications since the permits are only valid for one work address. Furthermore, requirements such as posting a job on the Job Bank is an unrealistic source for certain professionals and as such, employers have complained that their hiring efforts are wasted.

Commencing May 1, 2014, new instructions will be issued to immigration officers that will effect Federal Skilled Workers (FSW), Federal Skilled Trades (FST) Programs and Canadian Experience Class (CEC) applications.

The following changes will come into effect:

Federal Skilled Workers

This program allows successful applicants permanent residence based on factors including language, education and work experience. The overall cap will now be 25,000; with a cap of 500 applications for the PhD stream, no limit on applicants with a valid job offer from a Canadian employer, and sub-caps on the below eligible occupations:

Senior managers – financial, communications and other business services (0013)

Senior managers - trade, broadcasting and other services, n.e.c. (0015)

Financial managers (0111)

Human resources managers (0112)

Purchasing managers (0113)

Insurance, real estate and financial brokerage managers (0121)

Managers in health care (0311)

Construction managers (0711)

Home building and renovation managers (0712)

Managers in natural resources production and fishing (0811)

Manufacturing managers (0911)

Financial auditors and accountants (1111)

Financial and investment analysts (1112)

Securities agents, investment dealers and brokers (1113)

Other financial officers (1114)

Professional occupations in advertising, marketing and public relations (1123)

Supervisors, finance and insurance office workers (1212)

Property administrators (1224)

Geoscientists and oceanographers (2113)

Civil engineers (2131)

Mechanical engineers (2132)

Electrical and electronics engineers (2133)

Petroleum engineers (2145)

Information systems analysts and consultants (2171)

Database analysts and data administrators (2172)

Software engineers and designers (2173)

Computer programmers and interactive media developers (2174)

Mechanical engineering technologists and technicians (2232)

Construction estimators (2234)

Electrical and electronics engineering technologists and technicians (2241)

Industrial instrument technicians and mechanics (2243)

Inspectors in public and environmental health and occupational health and safety (2263)

Computer network technicians (2281)

Nursing co-ordinators and supervisors (3011)

Registered nurses and registered psychiatric nurses (3012)

Specialist physicians (3111)

General practitioners and family physicians (3112)

Dietitians and nutritionists (3132)

Audiologists and speech-language pathologists (3141)

Physiotherapists (3142)

Occupational therapists (3143)

Respiratory therapists, clinical perfusionists and cardiopulmonary technologists (3214)

Medical radiation technologists (3215)

Medical sonographers (3216)

Licensed practical nurses (3233)

Paramedical occupations (3234)

University professors and lecturers (4011)

Psychologists (4151)

Early childhood educators and assistants (4214)

Translators, terminologists and interpreters (5125)

Federal Skilled Trades Program

Applicants that are qualified in a skilled trade can apply to this stream for permanent residence. The new overall cap will be 5,000 applications and each of the following National Occupation Classification (NOC) Codes (from skill level B) have sub-caps of 100 applications. Please click on the links for further information on each group:

Major Group 72: Industrial, electrical and construction trades;

Major Group 73: Maintenance and equipment operation trades;

Major Group 82: Supervisors and technical occupations in national resources, agriculture and related production;

Major Group 92: Processing, manufacturing and utilities supervisors and central control operators;

Minor Group 632: chefs and cooks;

Minor Group 633: butchers and bakers.

Canadian Experience Class

This program is available for those qualified and already working in Canada as skilled workers who wish to immigrate to Canada. CEC applications will now be limited to a cap of 8,000, sith sub-caps of 200 for each NOC B occupation. Six (6) occupations will no longer be accepted: administrative officers (NOC code 1221), administrative assistants (1241), accounting technicians/bookkeepers (1311), cooks (6322), food service supervisors (6311), and retail sales supervisors (6211).

Since January 2014, new requirements for Labour Market Opinions (LMO) emphasize the government’s agenda for employers to hire Canadian employees first and foremost. New powers were also introduced, allowing Employment and Social Development Canada (ESDC) and Citizenship and Immigration Canada (CIC) to suspend and revoke an approved Opinions or Work Permits on public policy grounds. For instance:

If new information becomes available after the opinion is provided indicating that the employment of the foreign national under the work permit is having or will have a significant negative effect on the labour market in Canada, than the LMO and work permit may be revoked;

If the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion, the LMO and work permit may be revoked; and

If there are reasonable grounds to suspect that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion, the LMO may be suspended and cannot be used to obtain a work permit;

If new information becomes available after the positive opinion is provided and if known at the time would have led to a different opinion, the LMO may be suspended and cannot be used to obtain a work permit;

If there are reasonable grounds to suspect that the employer is not complying with the conditions set out in the Immigration and Refugee Protections Regulations, the LMO may be suspended and cannot be used to obtain a work permit;

If the employer’s name has been added to the list of ineligible employers, the LMO and work permit may be revoked or suspended.

On March 6, 2014, ESDC suspended two and revoked one LMO for the first time. 

The employers were noted on the ESDC website for providing false, misleading and inaccurate information leading to the issuance of the LMO. Employers were found to be turning away eligible Canadian applicants and reducing the hours of Canadian employees to give longer shifts to foreign workers and not providing provisions promised in the approved LMO application such as adequate housing for foreign workers.

In response to ESDC’s swift actions it is important for employers to take precautions when applying for an LMO and continue to do so after a positive opinion has been received. Employers must be sure that recruitment efforts are genuine and that Canadian applicants receive the first opportunity to fill available positions. 

Employers should also be careful to review compliance within the terms of the approved Labour Market Opinion and Work Permits and be proactive in ensuring that compliance can be readily demonstrated by maintaining documentation regarding the hiring process and compliance should Employment and Social Development Canada or Citizenship and Immigration Canada request any information. 

Nova Scotia’s new provincial nominee program, The Regional Labour Market Demand Stream, offers skilled workers a method to apply for Permanent Residence without having secured a job offer in the province. By identifying demonstrated demands for specific skills within communities in Nova Scotia, the program seeks to attract workers that can fill those National Occupation Code (NOC) 0, A and B jobs which are in demand. A full list of jobs that have been identified by the Nova Scotia Nominee Program as in demand jobs is available here.

In order to be eligible, candidates must be between the age of 22 and 55 and have the equivalent of twelve (12) years of education plus a post-secondary degree, diploma or certificate. In addition to demonstrating the intention to work in a specific NOC 0, A or B job in Nova Scotia, candidates must also have worked full time for two (2) years out of the past five (5) years in that field. Candidates also meet the language requirements with a Canadian Language Benchmark score of five (5) and show sufficient funds to support themselves and any family members applying under them. The funds required for a candidate is $11,115, and can go as high as $29,414 for a candidate applying with a family of seven or more.

There are no application fees for The Regional Labour Market Demand Stream application, and the expected processing time is one month. Once a candidate has been nominated, the application for Permanent Residence is than submitted with Citizenship and Immigration Canada. The program has proven popular with only 150 available nominations available, but applications are still being accepted.

Commencing yesterday, February 6, 2014, Citizenship and Immigration Canada has introduced a streamlined visitor visa. The new visa would automatically consider each applicant for a multiple entry visa. Qualified visitors would be able to remain in Canada for up to 6 months at a time for a period of up to 10 years.

As the number of visitors to Canada continues to increase, with over 35 million people visiting Canada last year, the government of Canada continues to make it easier for repeat visitors to come to Canada. In addition, the fee for a temporary visa has decreased from $150 to $100.

Sweeping changes introduced last year to the Temporary Foreign Worker Program (TFW) namely to the Labour Market Opinion (LMO) application, came into effect this year. The altered program was designed to give priority to Canadians for available jobs; however many employers have complained that the process has diminished their ability to recruit top talent.

The reality of the situation is that many positions exist in Canada where either the domestic labour force is not available or the position is in a location where people are just not willing to work. The use of the TFW  program is crucial for these effected industries and considering Canadians first as the current program envisioned is not always a reasonable option.

Employment Minister Jason Kenney has now called for a second round of reforms within the next two to three months and suggested a new fast track process for high-skill positions.

The new Expression of Interest (EOI) system that is due for introduction throughout the immigration system commencing this year also may not solve the problem. Under the EOI system, those who express an interest to come to Canada and possess the skills in demand in Canada would come through in an expedited process.

Critics suggest that talented individuals that are internationally in demand for their skills may not apply under this category and it would still be necessary to recruit them and apply through the TFW and LMO process. As such many hope to see the Temporary Foreign Worker and Labour Market Opinion application altered to decrease processing times and attract top talent.

This past week, Toronto’s Municipal Council debated taxes and the budget, but alas, promises of eliminating the municipality’s land transfer tax, or at least decreasing it, were not fulfilled. Purchasers of property in Toronto are subject to a Municipal Land Transfer Tax (MLTT) in addition to the provincial land transfer tax. The MLTT is calculated as follows:

The first $55,000 at:    0.5 %

$55,000 to $400,000: 1.0 %

Over $400,000:           2 %

Rob Ford campaigned in 2010 on the platform to decrease the MLTT in an effort to work towards eliminating it. Councillors, however, have agreed that despite the addition of other taxes, the MLTT will not be decreased or eliminated any time soon as it provides the city with much needed income. To the avail of real estate investors and first time home buyers, this tax will remain a burden on a purchase. Eligible first time residential buyers who have not owned property anywhere in the world and who will be using the subject property as their principal residence within 9 months of purchasing it are eligible for a rebate of the MLTT up to a maximum of $3,725. In addition to this rebate, first time buyers are also currently eligible for a rebate of part of the Ontario Provincial Land Transfer Tax.

Purchasers of newly built homes or condominiums are required to pay HST, however a rebate is available where the property will be occupied as a main residence for the purchaser or a related individual. A related individual is defined by tax law as a spouse or common-law partner, children or descendants, parents, siblings and adopted siblings.

In situations where a purchaser can’t qualify for a mortgage on their own, lenders will require a third party to be placed on the title. If this third party is not a related individual, then the HST rebate would no longer be valid as neither that third party nor their relatives would be residing in the property as their primary residence. Regardless of how small of a stake the third party actually holds in the property, the rebate is still not available.

The amount of the rebate can be substantial. 36% of the federal portion of HST can be refunded up to a maximum of $6,300, and up to 75% of the remaining 8% of HST can be refunded up to a maximum of $24,000.

Often the rebates are credited by the builder upon purchase; however, if one of the title purchasers is not a qualifying relative, Canada Revenue Agency (CRA) can make a claim for the remaining HST owed. It would be prudent for the purchaser of a newly build residential property to consider the rules relating to HST rebates which could affect the viability of the investment.

After much scrutiny of Labour Market Opinion (LMO) applications and applications for Temporary Foreign Workers in 2013, new regulations that came into effect December 31, 2013 will give greater powers of scrutiny to Employment and Skills Development Canada (ESDC) and Citizenship and Immigration Canada (CIC).

As part of the changes to the application process for LMO’s that have come into effect, the employer attestations have increased to 18 up from 7. Stricter employer compliance seems to be the driving force for the new changes. For instance, there is little flexibility where an LMO has been issued with a specific National Occupation Code (NOC); if the description of the job varies, a whole new LMO application will have to be filed. Furthermore, the new Substantially the Same Statement requires the employer to agree to pay and treat the temporary foreign worker substantially the same but not less than the wage or conditions of other workers.  In order to prove this, employers will be required to retain all documents related to the foreign worker for 6 years, and can expect to be inspected by the ESDC and CIC without a warrant at any time. Employers must be diligently compliant and ready at all times.

In addition, the changes highlight the Canada First Policy where Canadians must always be first in line for an available job. The ESDC can refuse to consider new LMOs if persuaded by public policy considerations and can revoke or suspend an LMO which was never possible before once an LMO has been issued. In addition an LMO can now be revoked if the LMO has been deemed to have a negative effect on Canadian labour, if any false or misleading information was used to receive an LMO, or if the employer has been blacklisted for non-compliance. In addition, the CIC now has the power to revoke a work permit also.

 The new changes require employers to take compliance very seriously while applying for an LMO and once the LMO has been issued.  

The Family Class Program’s Parent and Grandparent (PGP) stream is set to reopen to applications after a lengthy hiatus which barred applications of this type since November 5, 2011. The reason the PGP stream was closed was due to the backlog of applications which caused delays in processing. The new PGP program is set to accept applications from January 2, 2014 and the new forms will be available December 31, 2013. Only 5000 applications will be accepted in 2014 in order to avoid delays in processing.

The PGP program is expected to reopen with some alterations. The new qualifying criteria will be implemented to increase the financial responsibility of sponsors.

Sponsors who are over 18 may apply to sponsor parents or grandparents, and must show a minimum necessary income, which can be the total income of the sum of common-law partners or married couples. The minimum necessary amount is set to increase by 30% compared to the requirements in the past and sponsors must show their Notice of Assessments from the Canada Revenue Agency for the past three years to prove a steady income, as opposed to just one year as in the past.

The sponsorship undertaking period, a period where the sponsor must accept financial responsibility to repay any provincial social assistance paid to their parents or grandparents after they become permanent residents as well as health care costs not covered by the province, is also set to increase. The period which was originally 10 years long, is expected to increase to 20 years, and sponsors will be required to sign an undertaking to that effect.

In addition to changes in financial requirements of sponsors, the maximum age of accompanying dependents will go from 22 to 18.

Parents or Grandparents still will have the ability to apply for Super Visas which has proven a popular means to stay in Canada for longer periods of time than a regular visitor’s visa. For these visas, the standard visa requirements remain in effect in addition to the some extra requirements.   The parent or grandparent must provide a written commitment of financial support from their child or grandchild in Canada and the sponsor in Canada must meet minimum income requirements. The applicants must also prove they have purchased Canadian health insurance for at least one year and will have to complete an immigration medical examination.

Resource wealthy Western Canada may have a booming economy; however the lack of required trades workers has got the governments of Alberta and British Columbia searching well beyond the borders of Canada to fill the gap. Britain and Ireland, of course share culture and language with Canada, but Alberta and BC hope that soon Britain and Ireland could share more talent too.

Alberta seeks to fill approximately 114,000 new trades positions by 2021 while in British Columbia, approximately 153,000 new trades job openings are expected within the next decade. The reality of the situation in Canada is: low unemployment rates and few graduating high school students opting to pursue a career in the trades will cause a deficit of tradespeople required to sustain the economy. With only 1 in 32 high school graduates in B.C. pursuing a career in the trades when a ratio of 1 in 5 will barely make up for the deficit to come in the near future, it is clear that Canadian companies have to look beyond their province, and increasingly beyond national borders for employees.

Ireland and Britain, with their surplus of trained tradespeople who would be able to easily attain certification for their trade in Canada as well as integrate comfortably, provides suitable grounds for recruitment by Canadian companies. The success of Canadian job expos in UK and Ireland represent the growing interest to make the move to Canada.

To assist with the process, both Alberta and B.C. have introduced Provincial Nominee Programs that would allow interested applicants to fast-track their permanent resident application and come to Canada with their family as a resident rather than on a temporary work visa. In addition, Canadian Immigration has also drastically increased the number of International Experience Class visas available to Irish citizens, which would allow successful applicants to come to Canada to work and with 12 months of work experience in Canada in their field of expertise, applicants would be able to apply for Permanent Residence through the Canadian Experience Class stream.

New changes to Canadian Experience Class applications, which came into effect on November 9, 2013, could effect applicants applying under this category.

The new cap on the total number of applications that will be accepted under the Canadian Experience Class between November 9, 2013 and October 31, 2014 will be 12,000. NOC 0 and A occupations will not be subject to sub-caps however, all NOC B occupations will have a maximum of 200 applications each.

In addition, the following occupations will no longer be eligible commencing November 9, 2013, although applications received before that date will continue to be processed for CEC:

cooks (NOC code 6322);

food service supervisors (NOC 6311);

administrative officers (NOC 1221);

administrative assistants (NOC 1241);

accounting technicians and bookkeepers (NOC 1311); and

retail sales supervisors (NOC 6211).

Although language requirements for Canadian Experience Class applicants will not change, as of November 9, 2013, each candidate’s application will be reviewed upfront to ensure that they meet the minimum requirements. NOC 0 and A applicants must meet Canadian Language Benchmark (CLB) 7, and NOC B applicants must meet a CLB 5. Applications that do not meet these minimum requirements will be returned along with the processing fee.

When buying a house, the need to complete a home inspection is well understood.  Buyers of condos, however, often overlook the necessity of conducting a condo inspection prior to making their purchase.

Houses and condos share many basic features that inspections would cover such as electrical fixtures, plumbing, mechanical/HVAC systems, water damage, and more. Though the maintenance obligations may be significantly different between a house and a condo, it is nevertheless important to complete an inspection before purchasing a condo, as the purchase price could be affected.

Condo purchasers should also look to the condo management company for an inspection of the condo unit in order to determine whether any changes which should not have been made to the unit require rectification. These changes, for instance altering the flooring etc., could become the purchaser’s obligation to rectify if they are contrary to the condo rules.

Conducting a condo inspection before purchasing is important as it could save the purchaser time and money and ensure that the purchase price represents the value of the property.

The Alberta Immigration Nominee Program (AINP) persists to facilitate immigration to the province by lengthening the list of eligible applicants who fall under a National Occupation Classification (NOC) that was previously not accepted as part of the Alberta work experience category. In addition to most skill levels 0, A, B and C, some NOC skill level D occupations are now accepted under the Alberta work experience category. These include:

  Construction Trade Helpers and Laborers (NOC 7612);

Other Trades Helpers and Laborers (NOC 7612);

Light Duty Cleaners (NOC 6661);

Specialize Cleaners (NOC 6662);

Janitors, Caretakers and Building Superintendents (6663)

  Like the AINP’s Foodservice program, the NOC 6661, 6662, and 6663 categories are available only till November 28, 2013. This program gives workers in lower skilled occupations an opportunity to temporarily apply through the skilled worker category.

  Applicants must fall under additional criteria such as working full time in Alberta during time of application, as well as they must have the intention to remain in Alberta permanently. For NOC skills level C and D, the applicant must have been working in Alberta for 2 out of the past 3 years.

With the needs of the province at the forefront of the objectives of the Government of Alberta, the Alberta Immigrant Nominee Program (AINP) seeks to introduce new streamlined pilot programs to nominate immigrants in industry specific categories.

Available till November 28, 2013, employers in the foodservice industry are able to nominate up to 20% of their workforce. This is an increase from the previous 1 nominee per a location rule, meaning many more employees are eligible to be nominated. Candidates must meet several criteria to be approved for this time sensitive program including having a total of three years work experience in a job directly related to the food and beverage industry and have work experience in Alberta for a minimum of 9 months prior to filing the application.

In the past few months, Canada has welcomed the first successful applicants to the Federal Skilled Trades Program. The program was initiated in response to Canadian employers requiring skilled trade workers to fill regional shortages thereby effectively strengthening the Canadian economy. The goal of the program is to build a productive and flexible immigration system to fulfill Canada’s economic needs. Successful applicants have come from a diverse mix of countries and plan to work in any province or territory besides Quebec which has its own selection process for skilled workers.

Applicants to this program must meet specific eligibility requirements, and they must have a minimum of two years of full-time work experience in the following categories:

Industrial, electrical and construction trades;

Maintenance and equipment operation trades;

Supervisors and technical jobs in natural resources, agriculture and related production;

Processing, manufacturing and utilities supervisors and central control operators.

It is important to note that while there is a cap on the number of applications that can be filed annually, the success of the program conveys optimism for workers who can qualify to satisfy the needs of the Canadian economy.

The Professional Association of Foreign Service Officers (PAFSO) strike has escalated, to the point that  Canada’s 15 largest visa processing centres withdrew all services on Monday July 29, 2013.  The centres which have closed are:

Abu Dhabi.

Ankara.

Beijing.

Cairo.

Delhi

Chandigarh.

Hong Kong.

London.

Manila.

Mexico City.

Moscow.

Paris.

Riyadh.

Sao Paulo.

Shanghai.