• Greater Compliance Efforts and Changes to Permanent Residence Discussed at Bar Conference
  • May 18, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Employers in Canada will see increased compliance efforts from Employment and Social Development Canada (ESDC) and a new penalty scheme for noncomplying employers throughout the remainder of 2015. Information pertaining to Express Entry and changes to Canadian citizenship qualifications are also part of a long term plan, as was revealed at the Canadian Bar Association’s National Immigration Law Conference last weekend.

    The conference was attended by Fragomen, representatives from ESDC, Canada Border Services Agency (CBSA), and the Ministry of Citizenship and Immigration Canada (CIC).

    Temporary Foreign Workers

    Government officials will continue to determine employers’ compliance with the Temporary Foreign Worker Program (TFWP) and will soon implement a similar process for the International Mobility Program (IMP). ESDC is expected to be able to compel document production for employers that require further investigation and conduct on-site inspections without prior notice, while CIC may be granted separate investigatory functions.

    ESDC officials will continue to initiate compliance investigations for one in four employers who access the TFWP, but will move toward increased inspections following Labour Market Impact Assessment (LMIA) issuance instead of Employer Compliance Reviews (ECR) conducted prior to LMIA issuance, which is the current practice.

    Revised Penalty Scheme

    ESDC is also expected to institute a revised penalty structure by the end of the year for employers that violate the TFWP and IMP rules. The scheme will include warning letters, fines of up to $100,000 per incident of noncompliance and bans from future access to the TFWP and IMP ranging from one up to ten years, or permanently. The penalty will depend on the effect of noncompliance on an employer’s TFWs. Additionally, ESDC will take into consideration such factors as administrative or honest errors in determining penalties. The inspectors’ guidebook is expected to be made public this summer.

    Permanent Residence

    The Express Entry system will ultimately become the primary mode for selecting permanent residents. As such, scores from recent draws may not be indicative of future draws in the next year. CIC clarified while the Comprehensive Ranking System (CRS) determines eligibility under the program, selection for permanent residency will remain discretionary. CIC also stated that the Express Entry system could be revised in the future.

    CIC confirmed that they are working to create a system in which foreign nationals will be able to swipe the Permanent Resident Card upon entry and exit from Canada. Once implemented, this feature is expected to make residency determinations for Permanent Resident Card renewals and citizenship applications simpler by eliminating the need for lengthy residency questionnaires.

    Stricter Citizenship Residency Requirements

    Following the effectuation of the Strengthening Canadian Citizenship Act, the remaining changes are expected to be introduced by this summer. Notable changes include:
    • A new residency requirement that requires four of six years of physical presence, including physical presence for at least 183 days in each of the four years;
    • Only time spent as a Permanent Resident can count toward citizenship, instead of residence as a temporary national, as is currently allowed; 
    • Proof of income tax filings with the Canada Revenue Agency for each of the four calendar years will be considered for citizenship; 
    • Expanded standardized knowledge test requirements to applicants aged 14-64; and 
    • Expanded criminal prohibitions for acquiring or maintaining citizenship.
    What This Means for Employers and Foreign Nationals

    Employers hiring foreign nationals should work with their administrative departments to prepare for increased compliance efforts, potential document requests and audits by ESDC. Employers should work with their immigration professional to determine their compliance with the conditions set for the TFWP.

    Foreign nationals seeking Permanent Resident Card renewals or citizenship should generally benefit from the new Permanent Residence Card improvements once implemented, but those seeking to qualify for citizenship will be subject to stricter requirements.