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Immigration changes have broad strokes

The Immigration Line
|Written By Jennifer Nees
Immigration changes have broad strokes

Once again, as an immigration practitioner, I am explaining sweeping immigration changes to my clients. Recently, the minister of Citizenship and Immigration announced new changes to the temporary foreign worker program that will drastically alter the temporary foreign worker landscape when they come into effect on April 1, 2011. The new regulations were gazetted on Aug. 18.

When these changes were initially announced as a possibility, our law firm immediately sent out a notice to our clients that these changes would occur. Many of the changes appear to have been designed specifically to address company compliance issues with respect to foreign workers. In these new regulations, Citizenship and Immigration Canada and Service Canada are going to step up their monitoring of compliance issues, ensuring that if a Canadian company seeks to utilize the TFWP, it must prove it has previously complied with similar requests, including salary paid, working conditions, etc.

At a recent Canadian Employee Relocation Council conference, Michael Farrell, a deputy director at CIC, explained that much of the focus of these changes was intended to force employers into compliance, especially those that exploit foreign workers by holding their passports, making them live or work in unsafe conditions, or were repeat violators. Nobody can argue that these offenders should be stopped and by enacting these rules, CIC is giving itself the ability to have a more active role in the compliance process.

Farrell did not say this, but from my point of view, many of these new changes are really about compliance for both the very top and the very bottom of the scale. Many large companies use the TFWP heavily and you often hear tales of companies playing fast and loose with the rules because of the lack of severe (dare I say, any?) consequences.

As practitioners, we constantly advise our clients on the importance of compliance, and I know my clients are aware of the issues that exist in dealing with CIC and bringing in foreign workers. I am, however, often asked, “What happens if we don’t comply?”

Until now, the answers have been: there are regulatory consequences, it could make it harder for you to bring in other foreign workers, and on and on. But as a systemic issue, how does one force compliance? CIC appears to believe it can do this by creating a list of offenders that names and shames violators and by barring them from bringing in temporary foreign workers for two years. Oh, and this list will be publicly posted on the CIC web site for all to see.

Will it work? It just might.

While conversations have always occurred between lawyer and client on the importance of compliance and that a company must comply with what it says it will do on an application, it often gets lost in translation. Knowing that violations can result in sweeping ramifications, public acknowledgment of the non-compliance, and the inability to continue using foreign talent is a wake-up call for many companies.

This list is, to my ears, the most frequently discussed aspect of the changes and ones that has employers reviewing their temporary foreign worker records ensuring that compliance has been met. (There are rules for justification for non-compliance, etc., that allow employers the opportunity to respond to any compliance failure, as there must be.)

As an immigration lawyer whose practice focuses primarily on corporate immigration/business matters, I am all for regulations that back up my never-ending sermon on the importance of compliance, and am glad that CIC is taking measures to back this up. And for the most part, I am quite game to see how these regulations will pan out and the effect they will have on the TFWP process.

There are parts of these new changes that I do not like, most specifically the four-year limitation on many work permits that must be followed by the foreign national residing for four years outside of Canada prior to being allowed to return. This is overly onerous to foreign workers and employers, and will likely cool the international mobility of many talented foreign nationals who would like to live in Canada for a time, but don’t want to live here permanently.

As with most tales, there is a moral to this story, and it’s that everyone needs a strong compliance plan.

If you are a corporate entity that brings in more than two foreign workers a year, it is vitally important that you establish a corporate immigration policy of your own. As business lawyers, even those not practising immigration, it is our responsibility to ensure our clients are aware of what is going on within their own companies, what and how each division monitors its foreign workers, and assist corporate clients with establishing, implementing, and maintaining a corporate immigration policy that will allow them to ensure that compliance issues are understood, met, and managed.

Jennifer Nees is chairwoman of the Canadian chapter of the American Immigration Lawyers Association and a senior associate at business immigration boutique firm, the Bomza Law Group. She can be reached at jnees@bomzalawgroup.com.

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