Temporary Foreign Worker Program compliance
Employers must meet specific requirements to hire foreign workers and uphold the conditions as set out in the Immigration and Refugee Protection Regulations (IRPR). Employers of temporary foreign workers are expected to be aware of their responsibilities and obligations under the Immigration and Refugee Protection Act (IRPA), and the IRPR.
Employers are responsible for:
- ensuring they meet all of the conditions and requirements of the Temporary Foreign Worker Program (TFWP), as outlined in documents such as the Labour Market Impact Assessment (LMIA) application, the LMIA decision letter and annexes;
- keeping all records associated to their LMIA application and any other documents that demonstrate their compliance with the program conditions that are set out in the LMIA decision letter and annexes for a period of six years; and
- informing Employment and Social Development Canada (ESDC)/Service Canada of any changes or errors relating to an approved LMIA or the temporary foreign worker.
Employers must regularly review the activities related to the employment of temporary foreign workers to ensure they continue to uphold the TFWP conditions. Employers are required to take action to rectify errors and/or non-compliance as soon as it is discovered, and contact ESDC/Service Canada of any changes that occur.
ESDC/Service Canada, under the IRPA and the IRPR, has the authority to review the activities of any employer using the TFWP, in relation to their LMIA or LMIA request by conducting:
If an employer is selected for a review, they will be informed of:
- the type of review being undertaken, including the legislative or regulatory authority under which the review is authorized;
- the type of inspection, namely whether a site visit and/or interview will be conducted, and the period being reviewed (before or after December 1, 2015);
- the condition(s) for which they need to demonstrate compliance and/or accuracy of the information provided;
- specific actions they may need to take, such as providing documents, attending an interview and the timelines; and
- consequences of non-compliance or non-response.
LMIAs may be suspended during a review of any kind (inspection, ECR, or under Ministerial Instruction). A suspension is temporary and prevents foreign nationals from obtaining a work permit from Immigration, Refugees and Citizenship Canada (IRCC) while a review is being conducted.
Following the review, the employer will be informed of whether the suspension will be lifted as well as the outcome of the review. When an LMIA has been suspended and the decision is made to lift the suspension, ESDC/Service Canada may re-issue another LMIA with a validity period equal to the period remaining on the original LMIA at the time of suspension, at no additional cost to the employer or, in special circumstances, request that the employer submit a new application for an LMIA. However, in the event that a suspension lasts longer than six months, ESDC/Service Canada may re-consider the impact that lifting the suspension may have on the labour market. This may mean that additional requirements need to be met by the employer (e.g. additional advertising) and the validity period may be affected.
A review may lead to one of two initial outcomes:
- satisfactory: the employer demonstrates compliance with the conditions that were inspected, or justifies their non-compliance as per the regulations; or
- non-compliant: the employer is not able to demonstrate compliance with the conditions that were inspected, or cannot justify their non-compliance as per the regulations.
Employers subject to one of the three types of review (inspection, ECR, or under Ministerial Instruction), and who have already submitted or intend to submit a new LMIA application before the review is concluded, should be aware that a positive LMIA may not be issued if the review generates a negative finding (finding of non-compliance). In these cases, the LMIA processing fee will not be reimbursed.
Inspections may occur after a positive LMIA has been issued and the foreign worker has received a work permit and begun working. Inspections may be conducted during a period of six years beginning on the first day of the period of employment for which the work permit is issued to the foreign worker.
ESDC/Service Canada investigators have the authority to:
- conduct site visits without a warrant (private dwellings are excluded and in the majority of cases, advance notice will be given to employers);
- interview the employer and ask any relevant questions based on the conditions set out in the LMIA application, decision letter and annex; and
- interview any person employed by the employer (with consent), and ask any relevant questions based on the conditions set out in the LMIA application, letter and annex.
In the case of a site visit, ESDC/Service Canada investigators have the authority to:
- use copying equipment on the premises, by requesting that the employer make copies of documents and remove copies for examination, or if not possible, make copies on the premises, remove the documents to make copies;
- take photographs and make video or audio recordings to support the findings of the inspection;
- examine anything on the premises that relates to the conditions set out in the inspection;
- access the employer’s computer or other electronic device in order to examine any relevant information/document contained in it;
- be accompanied or assisted on the premises during the inspection; and/or
- enter a private household (the location of employment for an in-home caregiver) with a warrant or consent.
Reason for an inspection
An employer who received a positive LMIA on or after December 31, 2013, where the foreign worker has received a work permit and is/was working for the employer may be selected for an inspection.
There are three reasons an employer could be selected for an inspection:
- there is reason to suspect non-compliance (i.e. a tip was received);
- previous non-compliance; or
- random selection.
Factors reviewed during an inspection
During an inspection, ESDC/Service Canada will verify whether employers have upheld the conditions set out in the offer of employment, as well as the positive LMIA letter and annexes. These conditions may relate to general TFWP requirements for employers, such as providing the agreed-to wages and making reasonable efforts to provide a workplace free of abuse, or specific agreements negotiated before the LMIA is issued, such as commitments made by the employer to train Canadians.
Expectations of employers during an inspection
An employer selected for an inspection may be asked to:
- answer questions and provide requested documents or information;
- attend the inspection;
- provide assistance to the investigator;
- retain all records that relate to the employer’s compliance with the conditions set out in the LMIA application, letter and annexes for a period of six years from the first day of the period of employment for which the work permit was issued; and
- provide any documents that are requested to verify compliance with specific TFWP conditions (in the time allotted by ESDC/Service Canada).
Consequences for non-compliance under an inspection
Employers found non-compliant as a result of an inspection from a violation that occurred prior to December 1, 2015, could be subject to:
- a ban of two years from using the Program;
- the publication of their name, address and period of ineligibility published on a public website;
- a negative LMIA being issued for any pending applications, and/or;
- the revocation of previously-issued LMIAs.
Employers found non-compliant as a result of an inspection from a violation that occurred on or after December 1, 2015, could be subject to:
- administrative monetary penalties ranging from $500 to $100,000 per violation, up to a maximum of $1 million over one year, per employer;
- a ban of one, two, five or ten years, or permanent bans for the most serious violations;
- the publication of their name and address on a public website with details of the violation(s) and/or consequence(s); and/or
- the revocation of previously-issued LMIAs.
Consequences for violations that occur on or after December 1, 2015, are determined based on a points system that considers:
- the type of violation;
- the employer’s compliance history;
- the severity of non-compliance;
- the size of the employer’s business (for financial penalties only); and
- whether the employer voluntarily disclosed information about potential non-compliance before an inspection was initiated.
Process for communicating non-compliance findings and consequences for violations on or after December 1, 2015
Initial findings of non-compliance will be sent to employers. If no justification of the findings is provided by the employer or if the justification is not accepted by ESDC/Service Canada, the employer will be issued a Notice of Preliminary Finding, which will include information about the violation and proposed consequences.
An employer will be allowed 30 days to submit a written submission regarding any discrepancies relating to the suspected violation, the proposed consequence, or both. During this period, the employer may also request an extension of the period in which to respond. Such requests will be considered on a case-by-case basis and an extension may be granted within reason. Any new information provided by the employer at that time will be reviewed by a different officer that was not involved in the preliminary finding.
Once the justification has been considered, the potential consequence(s) could:
- remain the same;
- decrease or increase; or
- be lifted.
If a final assessment concludes that a violation has occurred, employers will receive a Notice of Final Determination, which includes information about the condition(s) violated, how the employer failed to comply, the reason(s) for the determination, the consequence(s) and next steps.
Employer Compliance Review (ECR)
Employer Compliance Reviews occur as part of the LMIA application assessment process to verify past compliance. On the LMIA application form, returning employers attest to having met TFWP wages, working conditions and occupation requirements for previously employed temporary foreign workers.
Factors reviewed under an Employer Compliance Review
The ECR will review past compliance with respect to program requirements for wages, occupation and working conditions. On December 31, 2013, employer requirements were updated to ensure that foreign workers are:
- employed in the "same" occupation (previously “substantially the same” occupation) that was set out in the offer of employment (and confirmed in the positive LMIA letter and annexes); and
- provided with wages and working conditions that are substantially the same-but not less favourable than-those set out in the offer of employment (previously “substantially the same wages and working conditions”).
Frequency of Employer Compliance Reviews
As of December 31, 2013, ESDC/Service Canada has authority to review an employer's compliance for up to six years prior to the receipt of the LMIA application.
Expectations of employers during an Employer Compliance Review
When employers re-apply to the TFWP, they may be subject to a document-based review to verify that they have met the three requirements mentioned above (i.e. wages, working conditions and occupation). When this occurs, employers will be asked to provide specific documents to demonstrate that they have complied.
During the ECR, employers will have an opportunity to provide justifications (in accordance with the IRPR) for initial findings of non-compliance and, in specific cases, to take corrective action.
Pending LMIAs may not be finalized until the ECR is completed.
Consequences of non-compliance under an Employer Compliance Review
Employers who have not been able to demonstrate that they have met TFWP requirements will be found non-compliant. Employers found to be non-compliant are subject to:
- possible refusal to process for two years from the TFWP and International Mobility Program (IMP);
- a negative LMIA being issued for any pending applications; and/or
- the revocation of previously-issued LMIAs.
Review under Ministerial Instruction
Since December 31, 2013, there are public policy considerations specified in ministerial instructions which may justify the revocation of an active LMIA, or the refusal to process an LMIA application.
In contrast to ECRs and inspections, the purpose of a review under ministerial instructions is to determine if new information the Department has received justifies the revocation of an approved LMIA.
Reasons for a review under Ministerial Instruction
Employers selected for this type of review are identified when ESDC/Service Canada receives new information (e.g. an allegation via the tip line related to an LMIA that may justify the suspension/revocation based on public policy reasons).
Frequency of reviews under Ministerial Instruction
A review under Ministerial Instruction may occur at any time after a positive LMIA has been issued. During the period of the review, the LMIA will be suspended.
Expectations during a review under Ministerial Instruction
An employer undergoing a review under Ministerial Instruction will be:
- notified whether they are being reviewed for a potential revocation using Ministerial Instructions;
- notified whenever an LMIA has been suspended or revoked; and
- provided with an opportunity to provide information that relates to the allegation(s) that triggered the review.
ESDC may also revoke an LMIA with respect to an application for a work permit based on public policy considerations specified in ministerial instructions. Revocation is the permanent cancellation of an LMIA or the cancellation of one or more positions on the LMIA. A revocation may occur before or after a corresponding work permit has been issued.
A revocation may occur when:
- new information becomes available after an LMIA has been approved that would now determine that the employment of a foreign worker would have a negative impact on the labour market in Canada;
- the employer or group of employers provided false, misleading or inaccurate information in the context of the request for an LMIA; or
- the employer has been found non-compliant through an inspection and their name has been added to the public website of employers as a result of non-compliance.
When a revocation occurs, the LMIA may not be used to obtain a work permit from IRCC. If an LMIA is revoked after a work permit has been issued, IRCC may also revoke the associated work permit from the foreign national.
In the case of an LMIA revocation, the LMIA processing fee will not be returned to employers.
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