Vol. 143, No. 41 — October 10, 2009

Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers)

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue

Temporary Foreign Workers have been an important source of labour supply in the Canadian labour market, particularly over the last five years, with a marked increase notably in Western regions and in lower-skilled occupations. Since 1999, the total number of TFWs entering Canada has nearly doubled, increasing from 107 217 in 1999 to 193 061 in 2008, with over 40% destined to Alberta and British Columbia in 2008.

With this significant increase in TFWs, the Government of Canada has become increasingly aware of instances where employers, or third-party agents working on their behalf, are failing to abide by commitments made to workers. Currently, no provisions exist in the Regulations to hold employers accountable for their actions regarding TFWs. Breaches that could occur include employers paying TFWs less than promised, inadequate accommodations for some TFWs, and third-party agents charging fees to workers, rather than employers, in contravention of provincial/ territorial legislation.

In addition, the dynamic nature of the labour market has meant that LMOs issued with no expiration date may have little relevance when used at a future point in time — when economic conditions may be significantly different.

While Canada may now be showing signs of economic recovery, given the employer demand-driven nature of the TFWP, the number of TFWs working in some sectors is falling in response to changing labour market conditions. Nonetheless, ongoing skills shortages persist in specific regions and sectors, most often in highly skilled occupations and industries. As a result, demand for TFWs is expected to continue in specific sectors and regions (e.g. British Columbia and Alberta; tourism and hospitality, and health), despite a higher national unemployment rate.

In light of the unprecedented growth in TFWs, coupled with rising concerns for the fair treatment of TFWs, the Government of Canada is proposing regulatory changes under the Immigration and Refugee Protection Regulations (IRPR).

Objectives

The objectives of these regulatory changes are to

• Minimize the potential for TFW exploitation by employers and third-party agents, thereby better protecting TFWs who work in Canada;
• Implement stricter employer monitoring mechanisms, including a denial-of-service provision, thereby encouraging greater adherence by employers to the terms of their offers of employment with respect to wages, working conditions, and occupations; and
• Underline that employment facilitated through the TFWP is meant to be temporary in nature.

Description

The Regulations would

• Establish a set of factors to guide the assessment of the genuineness of an employer’s offer of employment to a TFW, in both LMO and LMO-exempt cases. One of the factors would be past compliance of the employer, and of any recruiter acting on the employer’s behalf, with federal and provincial laws that regulate employment, or the recruitment of employees. Currently, the Regulations do not set out any factors on which the genuineness assessment is to be made. Prescribing in the IRPR the factors on which to base the assessment of an employer’s offer is intended to lead to a more systematic and rigorous approach to the assessment;
• In the case of a request for a live-in caregiver, establish certain employer-related requirements, including the need for the live-in caregiver, the provision of adequate accommodation, and the ability to pay the wages offered;
• Make an employer ineligible to access the TFWP for a period of two years where the employer has been found to have provided significantly different wages, working conditions or an occupation than what was offered during the previous employment of a TFW. The assessment would be undertaken at the time of a new LMO request or work permit application, and would consider any employment of TFWs in the two years preceding the application or request;
• Provide for the publication of a list with the names, addresses and period of ineligibility of employers who are not eligible to access the TFWP for the reasons noted above on CIC’s external Web site, in order to inform foreign nationals as to which employers are not eligible to hire TFWs;
• Establish a limit of a cumulative duration of four years of work for TFWs, followed by a period of at least six years in which they would not be authorized to work in Canada. The Regulations would provide for exemptions for certain workers, including those who intend to perform work pursuant to international agreements. This provision would signal clearly to both workers and employers that the purpose of the TFWP is to address temporary labour shortages, as well as encourage the use of appropriate programs and pathways to permanent residency in order to respond to the long-term labour needs of employers; and
• Introduce a requirement that HRSDC’s opinion indicate a period of time during which it is in effect. If a TFW does not apply for a work permit within that time period, the employer must request a new opinion from HRSDC.

These regulatory amendments would be applied prospectively; that is, they would apply only to those requests received by HRSDC and to applications received by CIC on or after the date on which the regulatory amendments come into force.

Regulatory and non-regulatory options considered

Over the past five years, a series of non-regulatory measures for improving employer compliance have focused on administrative improvements and facilitative measures (e.g. online LMO requests, creation of TFW Units) aimed at providing better service to employers and TFWs in the form of streamlined applications, and at improving service standards in regions with the highest demand. More information has been produced and additional outreach provided to the TFW employer community to heighten its awareness of its rights and obligations. This outreach continues through both printed and Internet materials and via presentations to employer groups. Similarly, information and outreach activities have been targeted at TFWs in order to provide increased awareness of worker rights and obligations. These measures are seen as an essential complement to the proposed regulatory provisions, rather than as an alternative to them.

Regulatory changes are required to support and strengthen existing measures to improve employer compliance and increase protections for TFWs, in particular through the introduction of new factors to guide the assessment of genuineness of the job offer. In addition, amendments are required in order to establish a two-year ineligibility period during which employers who have been found to have significant difference in offers made in the past to TFWs with respect to wages, working conditions and occupation would be unable to access the program.

The Government of Canada is supportive of provincial/ territorial initiatives aimed at strengthening protections for TFWs within their own jurisdictions, and believes these proposed regulatory amendments would strengthen and complement existing measures. The amendments would be supported by new federal-provincial/territorial agreements, including new information-sharing agreements, to be negotiated as we move forward.

Benefits and costs

The Cost Benefit Analysis (CBA) indicates that the regulatory amendments would likely produce a deterrent effect on program abuses, resulting in both quantitative and qualitative benefits and overall enhanced program integrity. The CBA findings also indicate that if the Canadian experience achieved the same or similar level of cost effectiveness as the Australian foreign worker program reform experience to date, it is likely that the cost of administering a monitoring and compliance regime in Canada would become cost neutral over time. As such, the CBA findings fully support the overall focus of the proposed regulatory changes.

Table 1 below presents estimated costs and benefits of the TFW program regulatory amendments over a 10-year time horizon, drawn from elements of the CBA.

Table 1: Summary cost-benefit statement

Cost-Benefit Statement			Base Year (2010)	Final Year (2019)	Total (PV)	Average Annual
A. Quantified Impacts ($ millions 2009)
Benefits		Temporary Foreign Workers	$10.7	$13.19	$79.39	$12.00
Costs		Federal government	$5.63	$6.24	$39.67	$5.95
		Provincial/Territorial governments	$0.24	$0.24	$1.61	$0.24
		Employers	$3.08	$3.81	$22.91	$3.46
		Total	$8.95	$10.28	$64.19	$9.65
Net Benefits			$1.7	$2.91	$15.20	$2.35
B. Quantified Impacts in Non-$ — e.g. Risk Assessment
Positive impacts	Temporary Foreign Workers Better Protected		609	754	6 857	686
C. Qualitative Impacts
Canadian economy			• Increased competitiveness, enhanced working conditions for all workers, a more efficient labour market, and a positive international image.
Canadian governments			• Increased authorities to effectively monitor employer non-compliance and administer a denial of service. • Over time, lower enforcement costs would result (re. labour code violations). • Increased confidence in compliance data obtained, allowing decision-makers to be better informed.
Canadian employers			• Improved HR planning practices and access to TFW. • Canadian employers would benefit by having continued access to TFW as a labour source (a more secure mid/long term supply of workers in key sectors).
Temporary foreign workers			• A safer work environment, protection of workers, benefits of better treatment, and a genuine job when they arrive in Canada.
Unions			• Employers would better respect collective bargaining provisions, and avoid bringing in TFWs to circumvent labour disputes. • Fewer TFW complaints would free up union resources for other priorities.
Non-governmental organizations			• Ultimately fewer TFWs would request support from NGOs, allowing them to focus on other priorities.
Recruiters (labour market brokers)			• More businesses/employers could start to use their services to navigate what could increasingly be seen as a process with more concrete risks and more demanding reporting requirements.
Immigration lawyers/consultants			• More businesses/employers could start to use the services of immigration lawyers and consultants to deal with matters of non-compliance and to mitigate risks.

Quantitative impacts

Section A of Table 1 presents the quantified costs and benefits that have been estimated for the TFW program over a 10-year time horizon. It is estimated that the combined cost of the TFW program to stakeholders would be $9.65M per year, which includes costs to the Government of Canada ($5.95M per year) provincial governments ($240,000 per year), and employers ($3.46M per year). The $9.65M annual cost is spread over approximately 60 000 affected persons, which equates to an annual estimated cost of $160 per TFW.

The bulk of the Government costs relate to program salary dollars (which includes the amount of time an employee would spend on assessing employer genuineness). Employer costs would come in the form of lost revenue they could incur if the TFW compliance and monitoring program reduced access to the TFW pool for non-compliant employers.

Other potential costs, to lawyers, recruiters, and immigration consultants, were deemed to be minimal and are therefore not included in the cost estimation analysis.

It is important to note that the range of potential benefits that could accrue from the TFW program cannot be easily assigned a monetary value. Benefits such as “Canada’s reputation as a destination for TFWs” and the value of a “TFW employee being treated fairly” are exceedingly difficult to quantify and monetize. However, an argument can be made that the benefits of the TFW program can be valued based on the wages paid to TFWs at risk of working for non-compliant employers. The value of the benefits to workers avoiding inadequate working conditions where they are being treated unfairly would be greater than or equal to their unearned wages.

These benefits were valued based on the assumption that 1% of the total number of TFWs (approximately 60 000 in 2009), believed to be at greatest risk to potential employer and third-party mistreatment, could be affected by non-compliant employers. This is drawn from the November 2007 study, Temporary Foreign Workers - Alberta’s disposable workforce, conducted by the Alberta Federation of Labour. The study found 123 cases affecting TFWs over a 6-month period. Scaled to 246 per year, this represents 1.1% of Alberta’s 22 392 TFWs in 2007.

The value of TFW wages was estimated using an average minimum wage in Canada of $8.75, multiplied by 40 hours/week for 50 weeks. The total number of TFWs affected in the first year was estimated to be 609. The number of TFWs was estimated to grow over the 10-year period of the analysis by the rate of growth in GDP. It was also assumed that TFW wages would increase at the rate of inflation.

Based on this calculation, the benefits to TFWs were estimated to average $12M per year over the 10-year period. Overall net benefits were estimated to average $2.35M per year, for a total net present value of $15.2M. All figures are expressed in 2009 dollar values.

A sensitivity analysis of the quantified costs and benefits indicates the TFWP regulation amendments would be cost-effective (i.e. net present value greater than $0) if the percentage of temporary foreign workers who are employed by non-compliant employers was reduced by more than 0.8% by the program.

As shown in Section B of Table 1, over 680 TFWs are expected to benefit each year from the program, or a total of more than 6 850 over the 10-year period.

Qualitative impacts

A number of positive qualitative impacts stemming from the introduction of an enhanced monitoring and compliance regime are expected. These impacts were validated through research into the Australian reform experience and through a high-level scenario based on a quantitative analysis into the impacts of deterrence on employer compliance. Based on this framework, two significant qualitative outcomes are expected from the TFWP:

• increased changes in positive employer behaviour over time as deterrence takes effect, leading to a dynamic where “good employers replace bad employers,” resulting in enhanced program integrity; and
• improved treatment of workers and continuation of Canada’s reputation as a destination for migrant workers.

Based on the comparative analysis between the TFWP and the Australian reform experience, Section C of Table 1 summarizes the benefits that are expected to accrue to the Canadian economy, governments, employers, temporary foreign workers, unions, non-governmental organizations, recruiters (labour market brokers), and immigration lawyers/consultants.

Distributional impacts

It is important to note that not all of the benefits stemming from the proposed regulatory changes would be equally distributed across all stakeholders. The specific strong geographic, economic sector and employer type concentrations of TFWs suggest that the program provides disproportionate benefits to small- and medium-sized enterprises (SMEs) in specific provinces and economic sectors (i.e. SMEs located in Alberta, British Columbia and Ontario in the agricultural, service and construction sectors).

Rationale

The new regulations related to genuineness would serve a two-fold purpose: to provide a set of criteria by which officers would make an assessment and to clarify that genuineness would be assessed for all offers of temporary employment in which an employer-specific work permit is required. When considering whether or not to issue a work permit, the officer needs to be satisfied

• that the job offer is real, that is, there is an actual employment opportunity for the applicant; and
• that the applicant worker and the prospective employer are bona fide, that is, that the employer really needs to, and is able to, employ the worker applicant, and that the applicant really intends to, and is qualified to, fill that particular job.

The specific criteria for assessing genuineness that would be set out in subsection 200(5) of the proposed amendments would read as follows:

A determination of whether an offer of employment is genuine shall be based on the following factors:

• whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
• whether the offer is consistent with the reasonable employment needs of the employer;
• whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
• the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

The genuineness assessment of the job offer would apply to all situations in which an employer-specific work permit is required, and therefore would not apply to open work permits, because the employer must be known in order to carry out the assessment.

Currently, the regulations provide for a fine of up to $50,000 or imprisonment for up to two years for an offence under paragraph 124(1)(c) of the Immigration and Refugee Protection Act (IRPA) for anyone that “employs a foreign national in a capacity in which the foreign national is not authorized…to be employed.” This provision is administratively burdensome and resource-intensive to apply. Imposing a denial of service on employers is a low-cost and effective response to incidents of employer non-compliance with TFWP requirements.

In addition to the assessment of the genuineness of a job offer related to an application for a work permit or a request for an LMO, the employer’s compliance with previous offers of employment in the past two years to TFWs would be considered, specifically regarding wages, working conditions and the occupation. Where it has been found that these elements of compliance have been significantly different than what was agreed to, then employers would be deemed not genuine, become ineligible to the TFWP for a period of two years and placed on a list of ineligible employers on CIC’s Web site.

Establishing a maximum cumulative duration of time that a worker may work in Canada is appropriate in the context that the TFWP is meant to address immediate temporary labour and skills shortages. While there are a number of avenues for higher-skilled workers to achieve permanent residence, there are limited avenues for lower-skilled workers to do so. Situations must be minimized where a worker can stay in Canada for an indefinite period of time with a temporary status. Implementing a maximum cumulative duration for a foreign national to be in Canada as a TFW with a work permit would emphasize to both workers and employers that employment under the TFWP is intended to be temporary in nature, and encourage the use of appropriate programs and pathways to permanent residence where available. The proposed amendments would allow for exemptions from the cumulative duration for certain workers, such as those who perform work pursuant to an international agreement between Canada and one or more countries.

In times of increasing global competition for skilled labour, aging populations, and growing skills and labour shortages, Canada strives to balance long-term and short-term solutions for employers to access the labour and skills needed to sustain Canada’s economy. Canada is committed to ensuring that the TFWP remains as a short-term, temporary employment solution for employers as part of a larger skilled immigration and long-term labour market strategy.

Consultation

A phased Temporary Foreign Worker Program Engagement Strategy was launched in 2007–08 with the intention of consulting with principal stakeholders on issues arising from the proposed regulatory amendments.

The first phase took place in the spring of 2007 with a series of engagement meetings with stakeholders interested in potential changes to the design and delivery of the TFWP; participants at that time included employers, employer associations, sector councils and labour groups, however it was agreed at the outset that there would be no attribution of comments in the final report in order to encourage frank discussion. Overall, participants of the first phase were supportive of the new regulatory requirements and did not think that enforcement provisions were unnecessary or unduly severe. Certain employers were concerned that the increased focus on the genuineness assessment and the need to provide proof of previous compliance could impose a bureaucratic burden on employers. Federal authorities assured participants that any such requirements would be kept to a minimum.

The second phase was initiated in the summer of 2007 and is currently ongoing. Working groups were created with provincial and territorial governments, with the goal of addressing specific regional economic priorities and labour market objectives, while taking measures to strengthen protections for temporary foreign workers. Participants in the working groups include provinces (British Columbia, Alberta, Saskatchewan, Manitoba and Ontario), CIC Regions and Headquarters, HRSDC and Service Canada Regions. Participants of phase two have reported satisfaction with the consultation process and expressed desire to see the proposed amendments implemented.

The third phase of the Strategy took place in March 2008 and consisted of consultations with key community organizations and two foreign workers who brought forward the concerns of workers themselves. There was consensus among participants that elements of the proposed regulatory amendments could streamline TFWP processes, reduce the risk of TFW exploitation by monitoring compliance, and improve administrative efficiency and worker protection through information sharing. The actions of recruiters were an area of concern and are addressed in the proposed amendments by establishing a provision that would allow the past compliance of employers, and any recruiters acting on their behalf, with federal and provincial laws that regulate employment or the recruitment of employees to be a factor considered in the genuineness assessment.

Implementation, enforcement and service standards

The proposed regulatory changes have been developed jointly by CIC, HRSDC and CBSA, which are the federal departments with the responsibility of implementing these new measures. Necessary implementation measures, including training of current staff, would be funded out of resources already allocated by Treasury Board for this purpose. Interdepartmental Working Groups have also been established to develop implementation plans for determining genuineness, imposing a denial of service, and information-sharing. Standard evaluation of the implementation and impacts of the regulatory amendments would be conducted by program departments and is expected to be completed by 2013.

A new Integrity and Horizontal Coordination Division has been created at HRSDC national headquarters to facilitate matters relating to employer monitoring and compliance in cases where HRSDC has provided opinions under section 203.

Service standards relating to general processing times are not anticipated to be largely affected by these regulatory changes. Processing times are available to the public at www.cic.gc.ca.

Privacy impact assessment

A Privacy Impact Assessment (PIA) Report was conducted in accordance with Treasury Board guidelines to determine if there are privacy risks associated with the TFWP Regulatory Amendments as they apply to the collection, use and disclosure of personal information, including the publication of a list of ineligible employers on CIC’s external Web site. The information on this list would be kept to a minimum and include what is necessary to ensure that TFWs have the information required to make an informed decision regarding the employers for which the TFWs could work. The report has been forwarded to the Office of the Privacy Commissioner for review.

Contact

Maia Welbourne
Director, Temporary Resident Policy and Program Development Division
Citizenship and Immigration Canada
Jean Edmonds Towers South, 8th Floor
365 Laurier Avenue
Ottawa, Ontario
K1A 1L1
Telephone: 613-957-0001
Fax: 613-954-0850
Email: Maia.welbourne@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsections 5(1) and 14(2), section 32 and paragraph 150.1(1)(a) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers).

Interested persons may make representations concerning the proposed Regulations within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Maia Welbourne, Director, Temporary Resident Policy and Programs, Immigration Branch, Citizenship and Immigration Canada, 365 Laurier Avenue, Jean Edmonds Tower South, 8th Floor, Ottawa, Ontario K1A 1L1 (tel: 613-957-0001; fax: 613-954-0850; e-mail: maia.welbourne@cic.gc.ca).

Ottawa, October 1, 2009

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS (TEMPORARY FOREIGN WORKERS)

AMENDMENTS

1. Subsection 183(1) of the Immigration and Refugee Protection Regulations (see footnote 1) is amended by striking out “and” at the end of paragraph (b) and by adding the following after that paragraph:

(b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer whose name appears on the list maintained on the Department’s website under subsection 200.1(2); and

2. (1) The portion of subsection 200(1) of the Regulations before paragraph (a) is replaced by the following:

Work permits – applications made before entering Canada

200. (1) Subject to subsections (2) and (3) and section 87.3 of the Act, an officer shall issue a work permit to a foreign national who makes an application for the permit before entering Canada if, following an examination, it is established that

(2) Paragraph 200(1)(c) of the Regulations is amended by striking out “or” at the end of subparagraph (ii) and by replacing subparagraph (iii) with the following:

(ii.1) intends to perform work described in section 204 or 205, has been offered employment to perform that work and an officer has determined under subsection (5) that the offer is genuine, or

(iii) has been offered employment and an officer has determined under section 203 that

(A) the offer is genuine,

(B) the employment is likely to result in a neutral or positive effect on the labour market in Canada,

(C) the issuance of a work permit would not be inconsistent with the terms of any applicable federal-provincial agreement, and

(D) in the case of a foreign national who seeks to enter Canada as a live-in caregiver,

(I) the foreign national will reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in the household without supervision,

(II) the employer will provide adequate furnished and private accommodations in the household, and

(III) the employer has sufficient financial resources to pay the foreign national the wages offered the foreign national; and

(3) Section 200 of the Regulations is amended by adding the following after subsection (1):

Work Permits – applications made on or after entering Canada

(1.1) Subject to subsections (2) and (3), an officer shall issue a work permit to a foreign national who makes an application for the permit in accordance with section 198 or 199 on or after entering Canada if, following an examination, it is established that the requirements set out in paragraphs (1)(a) to (e) are met.

(4) Subsection 200(3) of the Regulations is amended by striking out “or” at the end of paragraph (d) and by adding the following after paragraph (e):

(f) in the case of a foreign national referred to in subparagraphs (1)(c)(i) to (ii.1), the issuance of a work permit would be inconsistent with the terms of any applicable federal-provincial agreement; or

(g) the foreign national has worked in Canada for one or more periods totalling four years, unless

(i) a period of six years has elapsed since the day on which the foreign national accumulated four years of work in Canada,

(ii) the foreign national intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents, or

(iii) the foreign national intends to perform work pursuant to an international agreement between Canada and one or more countries, including an agreement concerning seasonal agricultural workers.

(5) Section 200 of the Regulation is amended by adding the following after subsection (3):

Cumulative work periods — students

(4) A period of work in Canada by a foreign national shall not be included in the calculation of the four-year period referred to in paragraph (3)(g) if the work was performed during a period in which the foreign national was authorized to study on a full-time basis in Canada.

Genuineness of job offer

(5) A determination of whether an offer of employment is genuine shall be based on the following factors:

(a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;

(b) whether the offer is consistent with the reasonable employment needs of the employer;

(c) whether the terms of the offer are terms that the employer is reasonably able to fulfil; and

(d) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

3. The Regulations are amended by adding the following after section 200:

Offers deemed to be not genuine

200.1 (1) Despite subsection 200(5), the following offers of employment are deemed to be not genuine:

(a) an offer of employment made by an employer who, in the two-year period preceding the day on which the offer of employment was received by the Department or the Department of Human Resources and Skills Development,

(i) provided to a foreign national wages or working conditions that were significantly different from the wages or working conditions that were offered by the employer to the foreign national, or

(ii) employed a foreign national in a significantly different occupation than the occupation described in the employer’s offer to the foreign national; and

(b) an offer of employment received by the Department or the Department of Human Resources and Skills Development within two years from the day on which the employer who made the offer was informed by an officer that an offer of employment made by the employer was deemed to be not genuine under paragraph (a).

Notice

(2) A list shall be maintained on the Department’s website that sets out

(a) the names and addresses of employers who have made offers of employment that have been deemed, within the preceding two-year period, to be not genuine under paragraph (1)(a); and

(b) the date on which each employer was informed that their offer was deemed not to be genuine.

4. Subsection 201(2) of the Regulations is replaced by the following:

Renewal

(2) An officer shall renew the foreign national’s work permit if, following an examination, it is established that the foreign national continues to meet the requirements of paragraphs 200(1)(a) to (e).

5. (1) Subsection 203(1) of the Regulations is replaced by the following:

Effect on the labour market

203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, if

(a) the job offer is genuine;

(b) the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada;

(c) the issuance of a work permit would not be inconsistent with the terms of any applicable federal-provincial agreement; and

(d) in the case of a foreign national who seeks to enter Canada as a live-in caregiver,

(i) the foreign national will reside in a private household in Canada and provide child care, senior home support care or care of a disabled person in that household without supervision,

(ii) the employer will provide adequate furnished and private accommodations in the household, and

(iii) the employer has sufficient financial resources to pay the foreign national the wages offered the foreign national.

(2) Section 203 of the Regulations is amended by adding the following after subsection (2):

Factors re genuineness

(2.1) An opinion provided by the Department of Human Resources and Skills Development in respect of the genuineness of a job offer shall be based on the factors set out in subsection 200(5).

Additional information

(2.2) The Department of Human Resources and Skills Development shall indicate in its opinion whether the employer, in the two-year period preceding the offer, has provided to a foreign national wages or working conditions that were significantly different from the wages or working conditions that were offered by the employer to the foreign national or employed a foreign national in a significantly different occupation than the occupation described in the employer’s offer to the foreign national.

(3) The portion of subsection 203(3) of the Regulations before paragraph (a) is replaced by the following:

Factors re effect on labour market

(3) An opinion provided by the Department of Human Resources and Skills Development in respect of the effect of the employment of the foreign national on the labour market shall be based on the following factors:

(4) Section 203 of the Regulations is amended by adding the following after subsection (3):

Period of validity of opinion

(3.1) An opinion provided by the Department of Human Resources and Skills Development shall indicate the period during which the opinion is in effect for the purposes of subsection (1).

6. The Regulations are amended by replacing “Department of Human Resources Development” with “Department of Human Resources and Skills Development” in the following provisions:

(a) the definition “National Occupational Classification” in section 2;

(b) the definition “restricted occupation” in section 73;

(c) subparagraph 82(2)(c)(ii);

(d) subparagraph 198(2)(a)(i);

(e) subsection 203(2);

(f) subsection 203(4); and

(g) paragraph 314(2)(b).

COMING INTO FORCE

7. These Regulations come into force on the day on which they are registered.

[41-1-o]

Footnote a
S.C. 2005, c. 38, s. 119(1)

Footnote b
S.C. 2001, c. 27

Footnote 1
SOR/2002-227

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