ARCHIVED – Operational Bulletin 574 – May 21, 2014

Instructions in regard to the Temporary Foreign Worker Program Food Services Sector Labour Market Opinion and Work Permit Suspensions

Summary

This Operational Bulletin (OB) provides work permit processing officers with operational instructions in regard to suspensions put into effect on April 30, 2014, of some positions associated with Employment and Social Development Canada (ESDC) labour market opinions (LMOs) related to the Food Services Sector. ESDC suspended the unused positions (work permit applications not yet approved) for which LMOs were issued to employers whose primary industry is in the Food Services and Drinking Places subsector and who are applying for positions in sales and service, and sales and service management.

Background

In 2013, the Immigration and Refugee Protection Act (IRPA) was amended to provide the Minister of ESDC the authority to issue Ministerial Instructions (MIs) specifying when an LMO could be revoked or suspended.

On April 24, 2014, the Minister of ESDC announced an immediate moratorium on the Food Services Sector’s access to the Temporary Foreign Worker Program. Accordingly, ESDC stopped processing any new or pending LMO applications related to the Food Services Sector.

On April 30, 2014, the Minister of ESDC suspended processing of unused positions tied to a previously approved LMO in this sector. This requires that CIC also suspend the processing of affected work permit applications.

Processing instructions

Where there are multiple positions on a single LMO, although there may only be one LMO number, each position is an individual opinion. ESDC will identify which positions are subject to suspension if more than one position is associated to a single LMO number.

Applications from individuals who are not impacted should be processed as per usual practice, as these individuals are authorized to enter Canada (subject to normal admissibility requirements) if their applications were approved by CIC prior to the suspension coming into effect on April 30, 2014.

If the work permit application was approved by CIC

LMOs have not been suspended for the individual positions where a CIC officer or a Border Services Officer (BSO) had already approved the work permit application to the foreign national. Therefore, if the foreign national possesses a letter of introduction (LOI) issued by CIC, the BSO shall issue the work permit, assuming all eligibility and admissibility criteria are met at the time of seeking entry.

If the work permit application has been received by CIC and no final decision has been entered

Where a work permit application has been received based on an LMO issued to the employer and ESDC subsequently suspends the LMO based on their public policy considerations, the processing officer will suspend the processing of the work permit application until such time as ESDC has reviewed the new information and either lifted the suspension or revoked the LMO.

On suspension, ESDC will update the Decision and/or HRSDC Comments fields of the LMO in their Foreign Worker System (FWS). Officers should always refresh the HRSDC (ESDC) view tab prior to making any decision in order to ensure they have the most up-to-date LMO information.

If the HRSDC view tab has ‘Suspended’ in the Decision or HRSDC Comments field, then the work permit application will be placed on hold pending re-evaluation by ESDC and the applicant will be informed that their application is suspended as per the MIs (see Annex A for the suspension notification letter).

• Step 1: On receipt of a work permit application, search in GCMS for the client and/or the application. Navigate to the HRSDC view tab and click on ‘Refresh’.
• Step 2: Confirm the status of the LMO by reviewing the Decision or HRSDC Comments field. The decision should be one of the following: Confirmed, Cancelled, Closed, Refused, Revoked or Suspended.
• Step 3: If the Decision or HRSDC Comments field indicates ‘Suspended’ and a date later than the ‘Decision Date’, a notification letter must be sent to the applicant (see Annex A for the template) and the application status changed to ‘On Hold’ to ensure that it is not processed erroneously.
• Step 4: After 60 days, check the status of the LMO.
  1. If ESDC has completed their review, the Decision and HRSDC Comments fields will show as either ‘Confirmed’ (see Note) or ‘Revoked’. The processing of the work permit application can then continue as normal.
  2. If ESDC has not yet completed their review, the Decision or HRSDC Comments fields will continue to show ‘Suspended’. Place the work permit application on hold again pending the review by ESDC.

If a work permit application is received by CIC after an LMO is suspended

In accordance with Ministerial Instructions, when a work permit application is received after the relevant opinion has been suspended by ESDC, officers are instructed to suspend the processing of the application.

Foreign nationals already working in Canada who have submitted an application to extend their work permit will have implied status if their application was submitted prior to the expiry of their present work permit. This means they will be able to remain in Canada and continue working for the same employer that appeared on their original work permit. They will continue to have implied status until a final decision is made on their application.

If the work permit application is received by the CBSA at the port of entry while suspension is in effect

When a foreign national applies for a work permit at the port of entry (POE) and submits proof of a Food Services Sector LMO, the BSO should confirm in GCMS (see steps above) that the LMO position has not been suspended. If the position appears suspended, the BSO should confirm if the foreign national has already been approved by CIC.

Changes have been made to GCMS allowing the BSO to query by client name or LMO number within the Employment Validation screen.

A foreign national requesting a new work permit, at the POE with a suspended LMO in the Food Services sector whose work permit application has not been approved by CIC, does not have a valid LMO on which to submit a work permit application at a POE.

If the foreign national does not have a valid LMO, the work permit will not be issued, as per the requirements under section 203 of the Immigration and Refugee Protection Regulations.

The BSO will have the normal actions available to them to deal with admissibility issues.

See also CBSA OPERATIONAL BULLETIN, OPS-2014-05.