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The Temporary Foreign Worker Debacle

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I am displeased. The first day of spring was 19¾ days ago and it is snowhailing in Halifax tonight.  That’s not a word, but that’s what it’s doing.

 

But what bugs me more than snow in April is when people get all Blanche Dubois about immigration issues. Worse, when the government acts surprised by the fallout from its own policies, cutbacks and decisions. Like the RBC story which is churning through the media meat-grinder right now. It is so convenient to beat up on immigrants and immigration when problems are exposed.

 

The Alberta Federation of Labour has just published a scathing report about the “widespread abuse” and fraud of the TFW program.

 

http://www.afl.org/index.php/Press-Release/list-of-accelerated-tfw-approvals-reveals-widespread-abuse-of-program.html

 

The raw data is fascinating, but the conclusions in the report are circumspect. First, the AFL has created a chart of “questionable” LMOs. Questionable apparently means anything related to fast food. There is no information on the positions being filled or the wages being paid. Are the A&W jobs for managers or burger-flippers? Contrary to what the AFL concludes, there is a distinction. As critical as I am of HRDSC and CIC, this rhetoric is not at all helpful to the discussion. Even if the AFL doesn’t intend to do it, throwing around words like “abuse” and “fraud” in relation to immigration brings bigots crawling out of the woodwork. At the very least, that kind of language should be used responsibly with proper facts to back it up.

 

Back to the RBC mess. My guess is RBC will eventually to do the right thing and ensure those workers don’t lose their jobs. Of course, it is not really “the right thing”. It’s not based on benevolence or ethics, simply corporate self-preservation. But to the people needing to keep their jobs, it’s the same difference.

 

However, if not for the whistle-blowing, this never would have made it onto the radar. Let alone the line-up at my local coffee shop where I overheard the phrase “Get those imports out of here!”

 

He was not talking about the fair-trade coffee.

 

Corporations are beholden to their shareholders and shareholders want to see profits. And on that front, RBC delivers. It’s not enough to say we expect corporations not to exploit the loopholes in the rules. Close the loopholes.

 

The current immigration policy has shut down permanent residence programs in favour of temporary residence programs. That’s plain wrong. The numbers of temporary residents coming into Canada has increased year after year between 2008 and now, despite the recession.

 

http://www.cic.gc.ca/english/resources/statistics/facts2012-preliminary/index.asp

 

Contrary to what the public perceives, the LMO application process is serious business. Here’s an example of one type of form an employer must fill out to apply for a LMO: ‪http://tinyurl.com/bqbhxac 

 

Question 28 asks if employees have been laid off. Call me simplistic, but I think this question can easily be changed to keep up with the times.

 

Rather than:

 

Were any employees laid off in the past twelve months?

 

How about:

 

(a)  Were any employees laid off or positions outsourced in the past twelve months?

 

(b)  Is the position being filled a result of a layoff or outsourcing  by any of the following:

 

                                                       i.     the employer

                                                      ii.     an affiliate

                                                    iii.     a contractee

                                                    iv.     a contract for services between the employer and another entity or individual?

 

(If “yes”, provide details. If answers are “unknown” further investigation by HRDSC shall follow)

We promote globalization and corporatization and sell our resources to foreign interests and then freak out when 45 Canadians lose their jobs. A lot more than 45 government employees have lost their jobs this month due to cutbacks. I wonder how many of those jobs are being outsourced?

 

We accept downsizing in government services that shuts down offices and guts entire departments. Then we criticize the lack of skills and insight and attention of really important decision-makers like the TFW Units at HRDSC, Canadian embassies abroad and CIC offices in smaller centers. I don’t know for sure, but judging by the cranky officers I deal with on a daily basis, I am guessing the morale must be absolutely horrible in those workplaces. We jump to conclusions about systemic abuse and beat up on the little guys without all the facts.

 

The RBC debacle hit home with the public. And if fast food joints are getting A-LMOs for minimum-wage positions, that’s obviously scandalous. But before we throw the baby out with the bathwater, there are some simple things that can at least be considered. Calling for a halt to the TFW program and using language like abuse and fraud only feeds anti-immigrant sentiment.

 

How about making changes to close the lay-off-and-outsource loophole in order to keep up with globalization? How about ensuring we have good, skilled, efficient decision and policy-makers? Not to get too technical but how about getting rid of the 15% thing – it doesn’t work. How about implementing a better wage-gauge, rather than one based on the outdated NOC codes? How about giving the departments the tools needed to do their jobs competently, including investigating allegations of fraud and abuse?

 

How about changing that form?

 

 

Don’t believe the hype

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Our government wants us to believe the immigration and refugee system is broken and we are suckers if we don’t fix it. But guess what? It isn’t broken.

And worse, our government is trying to break it. These days, permanent residence processing times are measured in years, not months. The refugee backlog has dramatically increased over the last seven years as a result of not enough adjudicators being hired. Proposed changes to the law via Bill C-31 will have a devastating impact on one of the most vulnerable groups in our society, refugee claimants.

The cost: lives. And if you aren’t so concerned about that because they are foreigners and you are a taxpayer, the other cost: hundreds of millions of dollars.

Every week there is a new story telling Canadians they are being taken advantage of by foreigners. Catchy phrases like bogus refugee and birth-tourist abound. If you read the fine print in many of the articles, there are no details about how widespread the problem is. Is it one or two? A hundred? A thousand? No one knows.

We are being bullied by our own government into thinking we are chumps for having an immigration system that protects the vulnerable, abides by Canada’s international obligations and respects the Constitution. We are being told if we don’t make these changes,  our society is at risk. Countries like the US and Australia are cited as examples of the doom and gloom of “illegal” immigrants and boatloads of people washing up on our shores. What we aren’t reminded of is the reality: our geography makes Canada almost impossible to get to from anywhere. Save forRussia and maybe Iceland, we aren’t at risk of droves of migrant workers crossing the border in the numbers the US has seen. Same thing for the boatloads: even if every few years, a decrepit ship full of desperate people sets sail for our shores, make no mistake: our government is taking unprecedented steps to prevent that boat from ever entering into our waters, let alone arriving onshore.

If you want something to gripe about, immigration-wise, there is lots of fodder. Wait-times for family reunification, the unpredictability of almost constant changes in the laws, the increasing complexity of the system, the fact we are losing immigrants to mind-boggling bureaucracy and delay.

One of the first questions students are often asked to think about in first year law school is “how many guilty people should go free to prevent the conviction of an innocent person?” Meaning, the system is never perfect. It makes mistakes. Due process has a cost. In Canada, we don’t have capital punishment so the stakes aren’t as high as countries that do. But in immigration law, and refugee law in particular, it is a matter of life and death.

Every system is vulnerable to abuse. As far as immigration law goes, resources and legislation are in place to deal with things like fraud and misrepresentation. But in this case, to throw out the entire system to prevent something which is unpreventable is mistaken. Worse, it is cynical and manipulative. The rhetoric will fundamentally alter our collective conscience from being proud of our humanitarian tradition to being paranoid and suspicious of the very people – immigrants and refugees – who helped shape this country in the first place.

But as far as the bogus refugees, birth tourists and marriage fraudsters go, don’t believe the hype.

The Temporary Foreign Worker program is about to become more complex than ever

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This is my long-form comment about the amendments to the Labour Standards Act.

Background

Generally, temporary foreign workers are only allowed to take jobs inCanadawhen there are no Canadians or permanent residents available.  Sometimes they are vulnerable and prone to abuse and disadvantage. Their authorization to stay in Canada is usually tied to their employer. They may be reluctant to speak out against unsafe or illegal working conditions for fear of losing their job and being required to leaveCanada. There is evidence of abuse and difficult working conditions and employers who operate with impunity.

 

http://www.nsi-ins.ca/English/pdf/migrantworkers_eng_web.pdf

 

Some temporary foreign workers use agents (headhunters, consultants, etc) to find work inCanada. There are unethical agents who charge high or illegal fees or make false promises for jobs. In worst cases, they commit fraud. As in: no actual job in Canada for the worker who then owes thousands of dollars to a agent for getting here. Many of these unscrupulous agents operate overseas.

 

So it is good news that the province is attempting to create a regulatory scheme that is intended to eliminate these abuses.

 

However, after reviewing the Discussion Paper and the amendments to the Labour Standards Act, I have some concerns. Here are the areas I am most concerned about:

 

1.         Who is excluded from the new law?

2.         The rules already exist

3.         The burden on employers to register and pay all fees

4.         The requirement for immigration lawyers and consultants to be licensed as “recruiters” in order to assist employers

 

1.         Who is excluded?

Everyone but Labour Market Opinion (LMO)-based workers are excluded from this new law. I am not aware of the statistics, but my guess is that LMO-based work permits are less than 50% of work permits. What this means is the law will not apply to a large number of temporary foreign workers. Unlicensed agents will continue to be able to operate and take advantage of those excluded groups. 

 

This, in my opinion, is one of the weakest aspects of the new law. The rules should either apply to everyone or be precise according to skill level, just like the low-skilled worker categories Service Canada already has in place:

 

http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/lowskill.shtml

 

The reason the new law applies only to LMO-based permits is outlined in the Discussion Paper. With respect, I do not agree with that rationale.

 

First, LMO-based work permits create much more government involvement than most other work permits. For other types of work permits, Service Canada is generally not involved. There is far less oversight for those permits than for LMO-based work permits.

 

Second, there are many non-LMO work permits that can involve potentially vulnerable people. Under the new rules, any treaty-based work permit is excluded. Any “work without a permit” work permit (I realize this is oxymoronic, but that is an actual category) is excluded. Intra-company transferees are excluded. However, there are times when a temporary foreign worker jumps categories. For example, if you max-out your time as an Intra Company Transferee you may need a LMO. It is not reasonable to expect that you are more vulnerable 3 years into your time in Canada than you were when you first arrived. In addition, some permits allow you to work for one year without a LMO and then to extend/renew, you need to get one. By then, you have been working for the same employer for a year.

 

A better way to streamline this law would be to have it apply to employer-specific work permits for Skill Levels C and D and any of the other low-skill programs such as Seasonal Agriculture Workers and Live-in Caregivers. This would be consistent with Service Canada’s rules about temporary foreign workers in those categories.

 

 

2.         The rules already exist

Currently, for an employer to obtain a LMO, they have to promise compliance with all applicable provincial and federal laws including labour standards. Service Canada has a department dedicated to ensuring compliance.

 

http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/pamphlet/ecr_pamphlet.shtml

 

How the current rules are enforced is not known. Last time I checked, there were no employers listed who had been barred from hiring temporary foreign workers due to failure to comply with Service Canada’s rules.

 

For a third party (recruiter, lawyer) to be involved, they have to be authorized to do that type of work:

 

http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=emp5520&ln=eng

 

The current Employer Declaration (for non-LMO permits), Third Party and LMO application forms make the employer’s responsibilities clear and attempt to make the involvement of third party representatives as transparent as possible. The bottom line is that Service Canada already has enough employer and third party representative information to enforce the rules and ensure compliance.

 

Enforcement is always the problem. Sometimes, an unscrupulous consultant or agent is involved but not named on the forms. These are sometimes called “ghost consultants” because they are involved but not visible to the government department tasked with ensuring compliance. The provincial legislation is presumably meant to further thwart the ghost consultant industry. If it works, great. But regardless of federal or provincial rules, ghost consultants and unscrupulous agents will continue to operate overseas.

 

If (federal) rules and tools already exist to limit an employer or recruiter’s ability to take advantage of a temporary foreign worker, then why the new (provincial) legislation?

 

 

 

3.         Burden on Employers

Creating this new layer of compliance places a burden on any company wanting to bring in temporary foreign workers. Under the new rules any employer wanting to obtain a Labour Market Opinion in Nova Scotia in order to hire a temporary foreign worker will have to be registered with the provincial regulator. Details of the registration process are vague at this point, but we know it will include paying a fee, and submitting company, workforce and financial information.

 

Furthermore, now employers will have to ensure compliance with two sets of federal laws (HRSDC and CIC) and one additional set of provincial laws. Given the complexity of these rules, it is practically mandatory to use an immigration lawyer or consultant for the paperwork. Presumably, small businesses will be hit the hardest as they are the ones with the narrower margins and smaller budgets for administrative and legal matters. One would expect that this will produce a chilling effect and a business -especially a small business- could be less likely to want to hire temporary foreign workers in order to avoid this red tape and expense.

 

Under the new law, employers must pay all recruitment costs and expenses to hire a temporary foreign worker. However, we often see situations where someone is here as a visitor and wants to stay. They find an employer willing to hire them, usually at a small business in a medium-skill level, such as a trade. The small business cannot bear the burden of the fees associated with the LMO and work permit application and as an incentive to hiring that person, the employee offers to pay those costs. This is illegal under the new law and there does not appear to give any option to waive this.

 

Why do employers need to register, especially if they are complying with Service Canada’s LMO rules? If they must register, there should be minimal cost to the employer and an effort should be made to make registration and renewal as simple as possible. Employers should only be required to disclose very general information.  If the new rules are limited only to LMO-based workers, all specific information required of an employer will be provided on the LMO application anyway. Consideration should be made to allow the possibility of a temporary foreign worker waiving the rules prohibiting them from paying fees in limited circumstances and perhaps only in certain higher skill levels.

 

 

4.         Professional Regulatory Bodies

I am limiting my comments to some general concerns as this is an area where it would be more appropriate for our Bar Society to provide specific input.

 

Some aspects of the new rules, including the licensing framework are problematic for lawyers and consultants who are bound by their own sets of professional and ethical rules and governance. There is potential for the two sets of rules to collide. By abiding by one, we could be breaking the other.  My knowledge is limited to rules governing lawyers as opposed to immigration consultants who are not lawyers and who are bound by a different set of rules. 

 

 

Many lawyers will have a philosophical problem with being considered a “recruiter”.  I don’t feel that is what I am doing in my practice, any more than a real estate lawyer should be considered a “realtor” for providing legal advice and services in a property transaction. But under the new rules, much of what immigration lawyers do will fall under the wide definition of “recruitment”. We will need to be licensed in order to carry on our immigration practice and provide legal services as usual. However, in being licensed and regulated by the Department of Labour and Advanced Education, lawyers are going to be required to follow a new set of rules.

 

Another issue lawyers may have with this legislation is putting them in the same category as immigration consultants in needing to go through the licensing process in the first place. While not completely absent from the legal profession, the bigger issues with the immigration consultant industry (unethical practices and a regulatory system that is somewhat lax or lacking) are distinct from the Canadian legal profession. And yet, lawyers keep getting grouped in the same category as immigration consultants. In reality, we provide a much narrower and more technical service than most consultants who can be involved in anything from form-filling to helping people with settlement such as finding housing.

 

Consideration should be made to exempting lawyers from having to become licensees.

 

If lawyers are required to be licensed, the licensing/renewal process should not:

 

–                     require a lawyer to breach solicitor-client privilege (i.e. by disclosing confidential information about a client to the new licensing body);

–                     require a lawyer to provide financial or trust account information about  specific clients; or

–                     conflict in any way with the rules of professional conduct imposed on lawyers by their governing body.

 

At minimum, the new rules should be interpreted and enforced in a manner that is consistent with the professional regulations licensees are bound by.

 

Finally, it is not clear from the Discussion Paper where these new rules leave legitimate employment agencies or headhunters. They cannot be licensed recruiters because they are not lawyers or immigration consultants. Other jurisdictions (i.e.Manitoba) have separate registration categories for those agencies. Hopefully those groups will provide input in this process.

 

Conclusion

In the last couple of years, the Federal government has been reducing options for permanent residence. In 2011, several categories were shut down and other categories had quotas reduced significantly. The thinking has been that temporary foreign worker programs would become more important.

 

The Temporary Foreign Worker program is about to become more complex than ever. It would be a shame if this made businesses less competitive because of the inability to bring certain skill-sets here or reduced the number of immigrants to the province.

 

The Worker Recruitment and Protection Act is intended to rid the province of unscrupulous recruitment practices and protect vulnerable temporary foreign workers. By doing so, the new rules will cast a wide net and cause upheaval, expense and inconvenience to employers, lawyers, consultants and agencies. I, for one, am ok with the upheaval if it the law does what it is supposed to.

 

Deceptively Simple – Citizenship and Immigration Canada on Twitter: How to hire a foreign worker

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http://bit.ly/ttwYpq

Sounds easy, right? CIC keeps trying to make it simpler for people to do their own immigration paperwork. But they just keep making the process and explanations of the process more and more difficult. Who in their right mind (other than a curious and critical immigration lawyer…) would follow these links and actually feel like they understand the process? Plus, you have to love the fact that CIC refers to “Social Development Canada” (http://www.cic.gc.ca/english/hire/skilled.asp)

 

I feel sorry for employers who attempt to navigate through these rules for the first time, innocently thinking they are actually going to be able to bring a new worker into Canada (a) ever; or (b) in any sort of workable time-frame.

 

Then again, who doesn’t need a little help with their social development? Especially when you earnestly follow the government’s simple instructions which sends you in circles, cursing and pulling your hair out.

 

Hooray for simplicity.

Shipbuilding and Temporary Foreign Workers

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It’s not even a week since the shipbuilding announcement and we are already talking about more temporary foreign workers in Nova Scotia. More people, more jobs, more money. All good. Unfortunately, the immigration process for temporary foreign workers is often unbelievably frustrating, especially for companies that are simply trying to bring the right people in quickly. The agreement between the federal government and province referred to in this article is not yet in place. Here’s hoping it will be fast-tracked to make the process smoother and faster.

 

http://thechronicleherald.ca/business/27004-ns-companies-turn-foreign-workers-fill-skilled-trades-shortage


Temporary Residence

A temporary resident in Canada is someone who is not a Canadian citizen but is in Canada for a temporary purpose. Temporary residents include temporary foreign workers, business visitors, international students, tourists and caregivers. Read more »