Temporary Foreign Worker Program compliance
Due to the coronavirus disease (COVID-19) outbreak, there are changes to this program.
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To support employers in meeting public health requirements related to the coronavirus (COVID-19), the following documents have been developed.
A joint letter was shared with employers by the Honourable Patty Hajdu, Minister of Health, and the Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion, outlining the Government of Canada’s expectations.
The Guidance for Employers of Temporary Foreign Workers Regarding COVID-19 outlines the expectations for employers of foreign workers entering Canada. This document issued March 27, 2020, and updated to reflect amendments to the Immigration and Refugee Protection Regulations that have come into effect as of April 20, 2020, assists employers and temporary foreign workers in understanding how to adhere to the latest program health requirements in order to minimize the spread of COVID-19.
Orientación para empleadores de trabajadores temporales extranjeros en relación con la COVID-19 is the Spanish version of the guidance document.
Frequently Asked Questions (FAQs): Changes to the TFW Program Regarding COVID-19 complement the guidance document and responds to the most common concerns regarding the new public health requirements. As the situation regarding COVID-19 continues to evolve, we will update the information. Please consult the FAQs regularly for up to date information.
Preguntas Frecuentes: Cambios en el programa de TFW con respecto al COVID-19 is the Spanish version of the FAQs.
Inspections during COVID-19 provides an overview of how inspections for new employer requirements related to COVID-19 will be conducted.
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 (TFW) Program, 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
- informing Employment and Social Development Canada (ESDC)/Service Canada of any changes or errors relating to an approved LMIA, the temporary foreign worker or the working conditions
Employers must regularly review the activities related to the employment of temporary foreign workers to ensure they continue to uphold the TFW Program 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 TFW Program, in relation to the treatment of workers, their LMIA or LMIA application by conducting:
If an employer is selected for an inspection, they will be informed of:
- the type of inspection being undertaken, including the legislative or regulatory authority under which the inspection is authorized
- the type of inspection, namely whether an announced or unannounced on-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
- consequences of non-compliance or non-response
Processing of a LMIA application may be delayed if the employer is undergoing a compliance review.
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 a paper-based only inspection, or an on-site visits without a warrant (private dwellings are excluded), that may be announced prior to their arrival or be unannounced.
- interview the employer and ask any relevant questions based on the conditions set out in the LMIA application, decision letter and annex
- interview any person employed by the employer (with consent and without the presence of the employer), and ask any relevant questions based on the conditions set out in the LMIA application, letter and annex as well as questions concerning general treatment of worker by employer
In the case of an on-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
- enter a private household (the location of employment for an in-home caregiver) with a warrant or consent
- interview employer and workers
Reason for an inspection
An employer who received a positive LMIA since 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 (in other words a tip or allegation was received)
- previous non-compliance
- random selection
Factors reviewed during an inspection
During an inspection, ESDC/Service Canada investigators 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 include:
- employers must remain actively engaged, during the validity of the work permit of the foreign worker, in the business for which the offer of employment was made, unless the offer was made for employment as a live-in-caregiver
- employers must comply with federal and provincial/territorial laws that regulate employment and recruitment in the province/territory in which the foreign worker is employed
- employers must provide each foreign worker with employment in the same occupation as stated in the offer of employment
- employers must provide each foreign worker with wages that are substantially the same but not less favourable than those in the offer of employment
- employers must provide each foreign worker with working conditions that are substantially the same but not less favourable than those in the offer of employment
- employer must make reasonable efforts to provide a workplace that is free of abuse
- employers must meet any specific agreed-to commitments, made at the time the LMIA was issued in relation to direct job creation for Canadians and permanent residents
- employers must meet any specific agreed-to commitments, made at the time the LMIA was issued in relation to job retention for Canadians and permanent residents
- employers must meet any specific agreed-to commitments, made at the time the LMIA was issued in relation to hiring or training Canadians and permanent residents
- employer must meet any specific agreed-to commitments, made at the time the LMIA was issued in relation to development of skills and knowledge for the benefit of Canadians or permanent residents
- employer must meet any specific agreed-to commitments, made at the time the LMIA was issued in relation to transfer of skills and knowledge for the benefit of Canadians or permanent residents
- employer must demonstrate reasonable efforts to hire Canadians or permanent residents if that was one of the factors that led to the issuance of a work permit
- employer must demonstrate reasonable efforts to train Canadians or permanent residents if that was one of the factors that led to the issuance of a work permit
- employers must be able to demonstrate that any information they provided in the context of LMIA application was accurate
- employer must retain any document that relates to compliance with these conditions for a period of six years, beginning on the first day of employment of the foreign national
- employer must report at any specified time and place to answer questions and provide documents to verify compliance with conditions
- employer must provide any documents that are required as part of an inspection
- employer must attend any inspection (unless the employer was not notified of it) that is on premises or place, in which a foreign national performs work and/or any premises or place provided as accommodation to the foreign national, give all reasonable assistance to the person conducting that inspection and provide that person with any document or information that the person requires
- employer must ensure the foreign national resides in a private household in Canada and provides care, child care, senior home support care or care of a disabled person, in that household without supervision (specific to Live-in Care givers)
- employer must provide the foreign worker with adequate furnished and private accommodations in the household (specific to Live-in Care givers)
- employer must have sufficient financial resources to pay the foreign worker the wages that were offered (specific to Live-in Care givers)
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 investigators
- 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
- provide any documents that are requested to verify compliance with specific TFW Program 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 Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP)
- the publication of their name, address and period of ineligibility published on the IRCC public website
- a negative LMIA being issued for any pending applications
- the revocation or suspension 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 from the Temporary Foreign Workers Program (TFWP) and International Mobility Program (IMP)
- the publication of their name and address on the IRCC public website with details of the violation(s) and/or consequence(s)
- the revocation or suspension 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)
- 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
- 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.
Employers subject to an inspection, and who have already submitted or intend to submit a new LMIA application before the inspection is concluded, should be aware that a positive LMIA may not be issued if the inspection generates a negative finding (finding of non-compliance). In these cases, the LMIA processing fee will not be reimbursed.
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