Information for employers on the Temporary Foreign Worker Program regulatory changes

As of April 1, 2011, each job offer will be assessed using the following new criteria: 

  1. The genuineness of a job offer to a foreign worker, including a review of four factors for all work permit applications processed:

    • The employer is actively engaged in the business;
    • The job offer is consistent with needs of the employer;
    • The employer is reasonably able to fulfill the terms of the job offer; and
    • The employer has complied with federal/provincial/territorial laws regulating employment in the province/territory where the worker will be employed.
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    Note: In order to assist officers in assessing job offers, where the occupation does not require a labour market opinion, CIC has developed an Employer Declaration Form (IMM 5658) (PDF, 570 KB). This form should be provided to the foreign national to submit with their work permit application and employers are encouraged to complete it, particularly in cases where the temporary foreign workers are being hired for the first time.

  2. Additional genuineness criteria assessed by Human Resources and Skills Development Canada for the Live-In Caregiver Program:

    • The caregiver will be residing in a private household in Canada and providing child care, senior home support care or care of a disabled person in that household;
    • The employer will provide adequate accommodations in the household that are adequately furnished and private; and
    • The employer has sufficient resources to pay the caregiver the wages offered.

  3. If applicable, the employer’s history surrounding temporary foreign workers they have hired in the two years preceding the date a current work permit application was received will be assessed to determine whether the employer has reasonably respected the terms of past job offers, particularly  with regard to wages, working conditions and occupation.

    If information is available about an employer’s past failure to provide substantially the same wages, working conditions and occupation as set out in previous job offers, employers will be given an opportunity to justify any discrepancies. Reasonable justifications include:

    • A change in federal/provincial/territorial law or a change to a collective agreement;
    • Changes the employer had to make in the workplace in response to a dramatic change in economic conditions that were not directed disproportionately at foreign workers;
    • An error made in good faith by the employer in interpreting obligations regarding wages, working conditions or occupation, and the employer has provided or made sufficient efforts to provide compensation to any foreign nationals that have suffered a disadvantage;
    • An administrative accounting error by the employer, and the employer has provided or made sufficient efforts to provide compensation to any foreign nationals that have suffered a disadvantage; or
    • Circumstances similar to those set out above.

    Employers who have failed to meet their commitments as promised in past job offers, and who have failed to provide reasonable justification or to rectify the situation by providing appropriate compensation to the former employee may face:

    • The refusal of work permit applications for any foreign national offered a job by that employer;
    • Ineligibility to hire a temporary foreign worker for 2 years; and
    • The employer’s name displayed on CIC’s Temporary Foreign Worker Program’s Ineligible Employers website.

    Temporary foreign workers will lose their temporary resident status if they accept a job offer from an employer who has been deemed ineligible to employ temporary foreign workers. Temporary foreign workers should consult CIC’s employer ineligibility website before entering into an agreement or extending an existing agreement with an employer who has been deemed ineligible to use the Temporary Foreign Worker Program.

  4. The consistency of the job offer with the terms of any federal-provincial/territorial agreement and whether the foreign worker, their spouse or common-law partner or dependents are eligible to participate in particular pilot projects.

    Some provincial and territorial governments have entered into bilateral agreements with CIC respecting foreign workers, and some of those agreements include pilot projects aimed at improving the program’s effectiveness in that jurisdiction. Employers should review the terms of these agreements to see if there are provisions that may apply to workers that they intend to hire.

  5. The cumulative duration regulation establishes a maximum allowable cumulative duration that a temporary foreign worker can work in Canada, followed by a period of four years in which the worker would not be eligible to work in Canada.

    The objective of this provision is primarily to prevent situations in which temporary foreign workers remain in Canada for such a prolonged period that they begin to lose ties with their country of origin without gaining permanent residence in Canada.

    Employers should be aware of the total time that a foreign worker has accumulated working in Canada before hiring him or her. A job offer for a TFW who has reached, or is close to reaching, the maximum 4-year duration could result in a refusal to issue a work permit, or in the work permit not being issued for the full duration of the job offer.

    This new regulation takes effect April 1st, 2011; therefore, the earliest date a TFW could reach the maximum duration would be April 1st, 2015.  

    Work permit applications that indicate a job end-date beyond April 1, 2015 will be assessed to verify if the foreign worker is eligible to work the full period of time.

Exceptions

The four-year cumulative duration will not apply to TFWs entering under one of the following occupations:

  • TFWs seeking to work in managerial (NOC 0) or professional occupational (NOC A);
  • TFWs who have applied for permanent residence and have received:
    • a Certificat de sélection du Québec (CSQ) if applying as a Quebec Skilled Worker;
    • a Provincial Nominee Program (PNP) certificate if applying as a provincial nominee;
    • an approval in principle letter if applying under the Live-in Caregiver Class;
    • a positive selection decision if applying under the Federal Skilled Worker Class;
    • a positive selection decision if applying under the Canadian Experience Class;
  • TFWs who are employed in Canada under an international agreement, such as NAFTA, the Seasonal Agricultural Worker Program, or another agreement;
  • TFWs who are exempt from the Labour Market Opinion process, including
    • Spouses and common-law partners of highly skilled TFWs;
    • Charitable or religious workers;
    • Entrepreneurs, intra-company transferees, researchers and academics;
    • Others for purposes of self-support (refugee claimants) or humanitarian reasons (destitute students, holders of Temporary Resident Permits valid for at least six months).

All other groups (i.e. workers in NOC B, C, and D level occupations) would be subject to the cumulative duration limit of four years.

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