ARCHIVED – Operational Bulletin 192 – April 1, 2010

Regulatory and administrative changes to the Live-in Caregiver Program

This Operational Bulletin has expired.

Issue

This operational bulletin is to inform officers of regulatory and administrative changes to the Live-in Caregiver Program (LCP) which take effect April 1, 2010.

Background

On December 12, 2009, Minister Kenney announced a combination of administrative and proposed regulatory changes to the LCP. These changes are designed to better protect the rights of live-in caregivers and to make it easier for them and their families to obtain permanent residence in Canada, while continuing to protect the health and safety of Canadians and maintaining the program objective to respond to labour market shortages.

Proposed amendments to the LCP regulations in the Immigration and Refugee Protection Regulations (IRPR) were pre-published in the Canada Gazette on December 19, 2009, for a period of 30 days. The regulatory LCP changes have been approved as pre-published in December, 2009, and come into force on April 1, 2010.

Administrative changes to the LCP announced in December, 2009, included new requirements for the employment contract between live-in caregivers and their employers, in particular specifying mandatory employer-paid benefits and contract clauses. This change to LCP employment contract requirements, and the effective date of April 1, 2010, has been communicated in advance to prospective live-in caregivers and their employers by Citizenship and Immigration Canada (CIC) and Human Resources and Skills Development/Service Canada (HRSDC/SC).

These changes to the LCP affect processing of work permits for temporary resident status (administrative changes) and processing of applications for permanent residence (regulatory changes). The possible duration of a temporary work permit under the LCP may also change as a result of the regulatory changes.

Regulatory LCP changes effective April 1, 2010

1. Changes to Medical Examination Requirements at the Application for Permanent Residence Stage

Section 30 of the Immigration and Refugee Protection Regulations is amended by adding the following after subsection (2):

Exception

(2.1) A foreign national who has applied for permanent resident status and is a member of the live-in caregiver class is not required to submit to a medical examination under subsection (1).

Under this Regulation, the mandatory requirement for all live-in caregivers to complete a standard medical examination at the application for permanent residence stage is eliminated.

The medical examination completed to qualify for the initial work permit/temporary residence as a live-in caregiver will now be assessed by medical officers overseas for excessive demand in anticipation of the applicant subsequently applying for permanent residence under the LCP. This change applies to:

• all new applications for a temporary work permit under the LCP received on or after April 1, 2010; and
• all instances where applications for a temporary work permit under the LCP and related medical examination have not already been reviewed.

The medical examination completed at the initial work permit/temporary residence stage will continue to screen for health conditions that would pose a risk to public health and safety.

Officers retain the discretion to request a medical examination at the application for permanent residence stage. Effective immediately, and during the transition phase, officers are encouraged to request a medical examination at the application for permanent residence stage in cases where the medical examination undertaken at the initial work permit/temporary residence stage resulted in an M2 or M3 assessment.

Instructions regarding the basis for requesting medical examinations at the application for permanent residence stage over the longer term will follow. These instructions will be designed to ensure that, over the long term, such requests will be rare and the exception to the rule.

Procedures for Medical Examinations at the Application for Permanent Residence Stage

Officers will confirm the result of the medical examination completed to qualify for the initial work permit/temporary residence in CAIPS, taking into consideration any additional information that may have been noted in the remarks section.

Note:

In cases where the date of the initial medical assessment undertaken at the work permit/temporary residence stage is older than 5 years at the application for permanent residence stage, the CPC system will not allow the officer to proceed with a new application.

In such cases, anticipated to be relatively low in volume, officers are to:

• manually modify the validity date in order to extend the validity of the initial medical assessment and allow the application for permanent residence to progress in the CPC system; and
• record this manual change in the CPC system notes to ensure that the file narrative reflects the modification to the validity date of the initial medical assessment.

Humanitarian and Compassionate Considerations for Medical Examinations at the Application for Permanent Residence Stage

The following guidelines are intended to assist officers in making decisions that are consistent with the objectives of the Immigration and Refugee Protection Act (IRPA); they are not intended to restrict the lawful exercise of their discretion:

• In cases where an application for permanent residence from a live-in caregiver includes a medical examination, and it appears the result of the medical examination could negatively affect the outcome of that application, officers are encouraged to support the applicant in requesting consideration on humanitarian and compassionate grounds;
• Officers are encouraged to take a generous view of any such humanitarian and compassionate applications or written requests for consideration under humanitarian and compassionate provisions; and
• Before rendering a negative decision on any such humanitarian and compassionate applications or written requests, officers are encouraged to ensure that every reasonable consideration has been given to supporting the application. This would likely include consultations with a manager and/or National Headquarters in advance of rendering a final decision.

2. Changes to the Employment Requirement at the Application for Permanent Residence Stage

(1) The portion of paragraph 113(1)(d) of the Regulations before subparagraph (i) is replaced by the following:

(d) they entered Canada as a live-in caregiver and for at least two of the four years immediately following their entry or, alternatively, for at least 3,900 hours during a period of not less than 22 months in those four years,

(2) Subsection 113(2) of the Regulations is replaced by the following:

Calculation

(2) For the purposes of paragraph (1)(d),

(a) the periods of two years and 3,900 hours may be in respect of more than one employer or household, but may not be in respect of more than one employer or household at a time; and
(b) the 3,900 hours are not to include more than 390 hours of overtime.

Under these Regulations, live-in caregivers:

• have up to four years from the date of their arrival in Canada to complete the employment requirement to be eligible for permanent residence under the live-in caregiver class; and
• may choose between two options for calculating their employment requirement for permanent residence:
  • 24 months of authorized full-time employment, or
  • 3,900 hours (within a minimum of 22 months which may include a maximum of 390 hours of overtime) of authorized full-time employment.

Effective immediately, when issuing letters of introduction/work permits to LCP applicants, officers are encouraged to allow for a duration of up to four years plus three months when consistent with other considerations, such as employer need and passport validity period. This will minimize in-Canada applications for work permit extensions in the future.

For live-in caregivers destined to Quebec, Certifcats d’acceptation du Quebec (CAQ) will continue to be issued with a maximum validity period of 36 months. As such, live-in caregivers destined for Quebec may be issued an LCP work permit of up to three years. The Ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI) is considering making regulatory changes to allow for the issuance of CAQs for periods of up to four years. Further instructions will follow pending the outcome of MIDI’s decision with respect to extending the maximum CAQ validity period from three to four years.

Documents required as proof that the applicant meets the existing requirement of 24 months of authorized full-time employment to be eligible for permanent residence under the LCP remain essentially the same; the sole exception being that the applicant is now requested to also provide copies of contract(s) with current and previous employer(s).

Additional documents are required as proof that the applicant meets the new requirement of 3,900 hours of authorized full-time employment to be eligible for permanent residence under the LCP:

• timesheets signed by current and previous employer(s) clearly indicating the date and number of hours worked for all overtime hours claimed; and
• the new Live-in Caregiver Employer Declaration of Hours Worked (IMM 5634) form completed and signed by current and previous employer(s).

Refer to the revised Live-in Caregiver Document Checklist (IMM 5282) for a complete list of documents required as proof that the applicant meets the employment requirement for permanent residence for both calculation methods (24 months or 3,900 hours).

The new Live-in Caregiver Employer Declaration of Hours Worked (IMM 5634) form has been created to help officers efficiently assess applications against the new 3,900-hour employment requirement calculation option. Employers must specify their identification information, that of their live-in caregiver employee and must attest to the following information:

• start and end dates of employment under the LCP;
• total number of authorized full-time hours worked during that period in accordance with the employment contract; and
• total number of authorized overtime hours completed during the period of employment.

This new form will provide the officer with a summary view of each period of employment claimed towards meeting the employment requirement for permanent residence under the LCP. Supporting documentation provided by the live-in caregiver applicant should corroborate the information specified by the employer(s) in the Live-in Caregiver Employer Declaration of Hours Worked (IMM 5634) form.

Administrative LCP changes effective April 1, 2010

These changes affect the processing of all temporary work permit applications where the Labour Market Opinion (LMO) application was received by HRSDC/SC on or after April 1, 2010.

For all LCP LMO applications received by HRSDC/SC on or after April 1, 2010, and for all work permit applications received by CIC that are based on these LMOs, the signed written employment contract between live-in caregivers and their employers must demonstrate that LCP requirements are met by including a description of:

• mandatory employer-paid benefits, including:
  • transportation to Canada from the live-in caregiver’s country of permanent residence or their country of habitual residence to the location of work in Canada
  • medical insurance coverage provided from the date of the live-in caregiver’s arrival until he or she is eligible for provincial health insurance
  • workplace safety insurance coverage for the duration of employment
  • all recruitment fees, including any amounts payable to a third-party recruiter or agents hired by the employer that would otherwise have been charged to the live-in caregiver
• job duties
• hours of work
• wages
• accommodation arrangements (including room and board)
• holiday and sick leave entitlements
• termination and resignation terms

A new LCP employment contract template is available via the CIC and HRSDC/SC departmental websites. Employers are strongly encouraged to use this contract template but are not obliged to do so.

However, all employment contracts submitted as part of employer LMO applications under the LCP must contain all of the information and clauses indicated as mandatory within the below template.

• Live-in Caregiver Program: Contract Template

HRSDC/SC will review all employment contracts submitted by employers to ensure they include all mandatory information and clauses noted above before rendering their LMO decision.

The LMO will indicate that the employment contract meets all new requirements. The confirmation letter from HRSDC/SC to the employer will indicate the approved mandatory information. When assessing work permit applications under the LCP, officers should:

• check the date of the LMO confirmation letter, which is submitted with the work permit application, to confirm that:
  • the LMO confirmation was issued as a result of an LMO application received by HRSDC/SC on or after April 1, 2010, and
  • the mandatory employment contract and new requirements apply.

Positive/neutral LMO confirmation letters generated as the result of complete employer LMO applications received by HRSDC/SC on or after April 1, 2010, will generally be dated mid-April onwards. This is an approximation only and delays may result as employers will have to adjust to the new requirements under the LCP.

• review the employment contract submitted with the work permit application and check that all mandatory information and clauses have been included;
• ensure that the employment contract has been signed by both the live-in caregiver and employer; and

Employers and caregivers who have amended their employment contract after it was submitted to and approved by HRSDC/SC should provide an explanation of any changes. For example, a new start date or wage increases consistent with or exceeding prevailing wage rate requirements for live-in caregivers in the region where the caregiver will be employed per HRSDC’s website.

Should the officer consider anything be missing in the employment contract, or not in compliance with the mandatory information and clauses noted above, further consultation with HRSDC/SC, the caregiver or the employer may be appropriate to confirm that the employment contract and job offer is genuine and meets the new LCP employment contract requirements.