Employers in Canada are required to comply with regular immigration inspections by the Employment and Social Development Canada (ESDC) if they want to hire a foreign worker under the Temporary Foreign Worker Program (TFWP) or the International Mobility Program (IMP).
The Immigration and Refugee Protection Act (IRPA) sets out conditions that Canadian employers must be aware of and comply with.
Inspections can be conducted by the ESDC or the Immigration, Refugees and Citizenship Canada (IRCC) to determine whether the employer complies with program requirements.
The TFWP is for employers who want to hire temporary foreign workers to fill the labor shortages that can not be filled by a Canadian citizen or permanent resident.
Employers must obtain a positive Labour Market Impact Assessment (LMIA) for which they will be required to meet certain conditions. A positive LMIA is required to support the foreign national’s application for a work permit.
Employers must continue to maintain meeting the set conditions throughout the employment period of the foreign national.
The IMP is for employers who want to hire a foreign worker without obtaining an LMIA.
Employers will be required to meet the following conditions to hire a foreign worker under the TFWP:
The ESDC has the authority to conduct a review of the employer under the TFWP in 3 forms:
Inspection: The inspection is conducted to ensure that the employer complies with the conditions described in the job offer letter, the LMIA letter and to ensure that the foreign worker is not being mistreated.
Employer Compliance Review (ECR): The ECR happens before their LMIA application is approved to verify their record and compliance with the requirements of the program. If they have applied for an LMIA before, then this review will attest to their past compliance.
Under Ministerial Instruction: If the ESDC discovers any new information that justifies the revocation of an approved LMIA, then a review can be conducted under ministerial instruction.
These reviews are conducted only when the ESDC receives any allegation regarding an approved employer that justifies suspension or revocation of their LMIA. If their LMIA is revoked, then the IRCC can also revoke the work authorization of the hired foreign worker.
A revocation can happen if the new information provides a fact for misrepresentation or negative impact on the Canadian labor market of the business or non-compliance through inspection.
Employers will be required to meet the following conditions to hire a foreign worker through the IMP:
They can be selected for an inspection based on:
They will receive a letter outlining the violated rules and resulting consequences. They will have 30 days to respond with additional information and justify their non-compliance before a final decision is made.
They can also request an extension for the response period but it is not guaranteed that it will be granted.
If it is concluded that they were in non-compliance, they will receive a final notice outlining the conditions violated, the non-compliance, appropriate penalties and what to do next.
They can justify non-compliance if the infractions happened due to:
They could receive penalties in the form of warnings:
They can be banned from applying to the TWFP and the IMP for 2 years. Any pending or previously approved LMIA can also be revoked as a form of penalty.
As an employer, if they think that any conditions of the TWFP have been violated, then they must voluntarily inform the IRCC. The IRCC can determine whether the violation requires an inspection. A voluntary disclosure can result in a reduced penalty or no penalty at all.
We hope that you found this resource topic interesting and informative.
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