CIMM Committee Report

Government of Canada Response to the Report of the Standing Committee on Citizenship and Immigration: Temporary Foreign Workers and Non-Status Workers

Canada’s immigration program and pathways to permanent residence

This section describes the broader context in which the Temporary Foreign Worker Program operates and addresses recommendations #1, #3 and #6 of the Standing Committee report.

Canada's immigration system balances multiple objectives related to both temporary and permanent migration. Immigration is a legitimate and necessary part of responding to both short- and long-term labour market needs. With respect to the former, the Temporary Foreign Worker Program (TFWP) allows employers to recruit foreign nationals to fill job openings on a temporary basis for which domestic labour sources cannot be found.

In recent years, however, pressures have begun to undermine the ability of the immigration system to meet labour market needs. Canada’s attractiveness as a destination has led to its receiving far more applications every year than could be processed. As a result, large backlogs formed, particularly in the federal skilled worker (FSW) category, in which the backlog reached 635,000 persons, with associated wait times of up to six years. Exacerbating this pressure has been the strong performance of Canada’s economy, led by the commodities boom in the West, which, until recently, resulted in historically low unemployment rates and acute labour supply pressures. Under strain from growing backlogs and pressure to deliver needed skills faster, the system was revealed to be inflexible and unresponsive. Employers, provinces and territories called for changes.

In response, the Government of Canada has taken many steps to make the immigration system more responsive. Most recently, Budget 2008 (Bill C-50) introduced legislative amendments to IRPA to allow the Government of Canada to process, on a priority basis, only those FSW applications submitted after February 27, 2008, that respond to labour market needs (as identified in consultation with provinces and territories and key stakeholders). Prior to that, the Government of Canada launched the new Canadian Experience Class (CEC), and, since 1998, has worked with all provinces and territories outside of Quebec to establish the Provincial Nominee Program (PNP). These two categories help respond to labour market needs. In addition, Budget 2007 funding allowed the Government of Canada to make significant improvements to the TFWP, including measures to reduce processing delays, more effectively respond to regional labour and skills shortages and enhance program integrity.

While preliminary results have indicated the initiatives outlined above will greatly improve the responsiveness of the immigration program, employers had already begun to turn to the TFWP to meet their needs. The increasing popularity of the program is seen in growing volumes: in 2008, the number of TFWs in the country was 251, 235—double the 2004 level.  In time, the initiatives outlined above should improve employers’ access to skilled permanent residents and thereby lessen the reliance on the TFWP. However, overuse of the program, and for reasons for which it was not designed, has led to many of the problems highlighted by the Standing Committee.

The Government of Canada believes there is an enduring role for the TFWP in Canada’s immigration system and welcomes the Committee’s recommendation to maintain the program. Labour needs are not all permanent: the seasonal movements of agricultural workers, special events or projects like the 2010 Olympics in Vancouver and recent oil sand projects in Alberta are examples of cyclical, large and/or acute labour demands of a temporary nature. Some other needs fluctuate with the economy and are sometimes unpredictable, as evidenced by recent layoffs and lower demand for foreign workers resulting from the economic downturn.

Nevertheless, while workers brought in under the TFWP come initially to fill short-term labour needs, some of them are able to stay and settle in Canada under the new CEC.  The CEC facilitates transition to permanent residence for international students and TFWs who possess skilled work experience in Canada, have sufficient knowledge of English or French and may have earned a Canadian educational credential. Indeed, research has demonstrated that these factors facilitate the integration and movement of new immigrants in the labour market.

Foreign workers having entered Canada under the Live-in Caregiver Program (LCP) are also able to transition to permanent residence.

Some employers and stakeholders have argued that avenues to permanent residence should exist for all foreign workers, including workers with lower skills. However, lower‑skilled workers generally have limited training, transferable skills and linguistic abilities, which mean adapting to changing conditions and finding their way around in the Canadian labour market could be more of a challenge. Moreover, it does not appear that a broad-based long-term need for lower-skilled workers exists across Canada to the same extent that experts and stakeholders have identified for skilled workers. Nevertheless, where provinces and territories have identified them as sectoral and regional priorities, pathways to permanent residence for lower-skilled workers exist through the PNP.

Governance

This section outlines the Temporary Foreign Worker Program and how it is managed by the Government of Canada. It addresses recommendations #2 and #7 of the Standing Committee report.

The TFWP, legislated through the Immigration and Refugee Protection Act (IRPA) and its Regulations and jointly managed by Citizenship and Immigration Canada (CIC) and Human Resources and Skills Development Canada (HRSDC), facilitates the entry of foreign workers into Canada to address temporary labour and skill shortages. Employers can recruit workers into any legal profession and from any source country, subject to employers and workers meeting specified criteria.

HRSDC is mandated under Immigration and Refugee Protection Regulations (IRPR) to provide an assessment of the potential labour market impact of the entry of foreign workers in Canada. In particular, HRSDC is required to assess the employer’s efforts to hire Canadian workers: the wages and working conditions offered; possible impacts, if any, on labour disputes at the place of employment; and possible benefits from the entry of foreign workers (e.g. filling labour shortages, transferring skills, or creating direct employment for Canadians).

Employers are informed of that assessment via a Labour Market Opinion (LMO) decision letter, which must be included with the work permit application. CIC considers this LMO, when it is required, along with other factors in its assessment of the genuineness of the job offer and the impact that the employment will have on the labour market in Canada. Some foreign workers can apply for a work permit without an LMO when, for instance, they do so under reciprocal agreements such as the North American Free Trade Agreement (NAFTA) and intra-company transfers, or when specific significant economic benefits are demonstrated. In 2008, approximately half of all work permits were issued without an LMO. 

CIC has the legislative mandate to assess other requirements such as the worker’s demonstrated ability to perform the job in question and the likelihood of his or her leaving Canada when the work permit expires. Workers are also assessed for admissibility, including health, criminality and security criteria. 

Although authority to administer the program is delegated to these two departments under IRPR, effective management of the program requires the participation of other Government of Canada departments and agencies.

The Canada Border Services Agency (CBSA) is involved in the effective management of the TFWP. While CIC assesses program requirements and admissibility at missions abroad, the CBSA assesses the admissibility and program requirements and issues work permits at ports-of-entry. The CBSA also conducts investigations and pursues prosecutions of possible violations of the IRPA and will involve security partners such as the RCMP in cases of organized crime, human trafficking and national security. The Department of Foreign Affairs and International Trade (DFAIT) is responsible for negotiating youth mobility agreements, whose participants may obtain an open work permit.

Provinces and territories also play a very important role. Establishment of labour and occupational health and safety standards, consumer protection, regulation of professions, workers’ compensation, as well as resolution of related conflicts through labour boards and civil courts generally fall under their jurisdiction. In fact, some provinces have introduced legislative and administrative measures that provide protections or support to TFWs and better regulate employers and recruiters, for example the Worker Recruitment and Protection Act (WRAPA) in Manitoba and the Fair Trading Act (FTA) in Alberta. 

The role of provinces and territories under the TFWP has also been reinforced, in particular through the federal-provincial TFW Working Groups that have been meeting regularly in recent years, particularly in the context of TFW Annex agreement negotiations. Through the TFW Annexes, provinces and territories obtain the authority to support the issuance of work permits without labour market testing by HRSDC and also pilot innovative approaches to improving the functioning of the TFW program in their jurisdictions. Information sharing agreements are also being developed with the provinces. These will help ensure that provincial employment standards and occupational health and safety legislation are respected by employers and will improve targeted outreach. 

While these working relationships are vital to the effective and dynamic delivery of the program, they would be incomplete without stakeholder input. In the past few years, the Government of Canada has lent an attentive ear to concerns raised by employers, unions, non-governmental organizations (NGOs) and advocacy groups. The Government of Canada organized a series of roundtables and meetings to learn more about stakeholders’ views on how to improve the program and establish a network to support future engagement efforts or other initiatives. In 2007-08, the Government of Canada developed a TFWP Engagement Strategy to discuss potential changes to the design and delivery of the TFW Program with a range of interested stakeholders (employers, employer associations, sector councils, labour groups). Key community organizations and foreign worker representatives who brought forward the concerns of workers themselves were also invited to participate. In 2009, several more roundtables have been held with LCP stakeholders, employer associations and sector councils. The Government of Canada also meets regularly with the Canadian Bar Association (CBA), the Citizenship and Immigration Canada Immigration Practitioners (CICIP) and the Canadian Association of Professional Immigration Consultants (CAPIC), and it organizes meetings, as required, with relevant stakeholders to discuss specific topics, such as the Seasonal Agricultural Worker Program (SAWP) or prevailing wages.

Given that efficient partnerships and consultation channels already exist, and efforts are made to continually build on those relationships, the Government of Canada is not convinced that the creation of an independent body of stakeholders to oversee and review the program would be a useful and efficient use of its resources.

Protections for Temporary Foreign Workers

This section describes recent and ongoing improvements to the Temporary Foreign Worker Program and addresses recommendations #8 and #21–34 of the Standing Committee report.

The Standing Committee makes several recommendations related to protections for TFWs, including enhancing monitoring of employers’ compliance with their obligations under the program.

The Government of Canada takes the protection of temporary foreign workers very seriously. Some of the Committee's recommendations in this respect represent very positive improvements to the program. In fact, a number of these are already in place or are being reviewed. However, some other changes proposed could impact the program in unintended ways, and might even result in introducing new or greater risks for TFWs. Other recommendations would require a significant investment of administrative resources by the Government of Canada, while providing only incidental benefits to Canadian employers or TFWs.

Budget 2007 allocations allowed the Government of Canada to implement a series of improvements in the area of program information.

As part of this, pamphlets for the TFWP and the Seasonal Agricultural Worker Program (SAWP) - which brings in foreign nationals from Mexico and some Caribbean countries to work on farms during planting and harvesting seasons—were reviewed and updated. These highlight information on labour, health, accommodations and workplace safety rights and provide contact information for provincial and territorial employment standards offices. A similar pamphlet also exists for the LCP. In addition, fact sheets on key aspects of the TFWP and a guide for employers are available online. These describe the requirements for workers and employers under the program, situations in which an LMO is required, processes to apply for a work permit or an LMO, and the steps and linkages between the LMO and the work permit application processes.

In addition, warnings against unscrupulous immigration consultants and recruiters have been posted on CIC’s and its missions’ websites, distributed through a video to ethnic and mainstream media in Canada for use as a public service announcement, and posted on the CIC website, as well as on YouTube. Although these are intended for immigration applicants, including TFWs, they can equally raise awareness among employers.

The implementation of Temporary Foreign Worker units in Vancouver, Montreal and Calgary in 2006 is also seen as a way to better inform employers and ultimately improve protections for TFWs. These units support employers by facilitating the entry of needed TFWs into those regions, through both identifying applications in which exemptions from labour market testing can be applied and, more generally, by providing outreach education and support to employers seeking to use the TFW program. Feedback from employers has been positive: they appreciate having one-on-one exchanges with an expert in the program. Budget 2007 funding allowed CIC to expand these TFW units to Toronto and Moncton. Service Canada, which is responsible for processing the LMOs on behalf of HRSDC, also conducts ongoing outreach with employers through its regular activities.

In terms of protections and support afforded to TFWs once they are in Canada, the Government of Canada acknowledges that there remain areas where more could be done. Currently, TFWs can address complaints against employers and recruiters through unions, labour boards and civil courts. In situations where sufficient evidence exists to support a prosecution under IRPA, CBSA may pursue charges and will involve security partners such as the RCMP in cases of organized crime, human trafficking and national security. However, the Government of Canada does not currently have legal authority to fully monitor employers’ use of the program, including compelling the employer to undergo monitoring visits or to produce evidence documenting the conditions of employment of TFWs.

The Government of Canada takes the issue of foreign worker exploitation very seriously and has already started working towards improvements, such as recent monitoring initiatives.

For example, in September 2008, HRSDC launched the Expedited Labour Market Opinion (E‑LMO) pilot project in BC and Alberta, which requires participating employers to attest to their compliance with the program and agree to future reviews.  To date, approximately 80 employer compliance reviews have been conducted, which have resulted in corrective measures or denial of E-LMO service in a number of cases. One hundred and fifty reviews are planned for Fiscal Year 2009-10. 

Another initiative, the Monitoring Initiative, encourages all employers across Canada to participate in post-LMO monitoring and engagement activities; it excludes SAWP, LCP, and the province of Quebec. Since its launch on April 27, 2009, approximately 500 employers have agreed to participate, providing an opportunity for employers to demonstrate compliance with program requirements. In addition to these two initiatives, HRSDC implemented a process to revoke an LMO where a work permit has not been issued and new information has come to light or false or misleading information was included on the LMO application. This is a key measure to ensure that TFWs are not entering Canada to work for non-genuine employers where an LMO was previously issued. Also, questions have been added to the LMO application form to allow better assessment of an employer’s continuing need for TFWs and past compliance with commitments under the program.

The Government has also been working on TFWP regulatory changes designed to improve the integrity of the TFWP through enhanced monitoring of employers’ compliance with their commitments under the program. With the reintroduction of Bill C‑45 (previously introduced as Bill C-17), the Government of Canada is also seeking legal authority to deny entry to Canada to foreign workers who could be exposed to exploitation or abuse. The Government of Canada will continue to consider ways to further strengthen its authority to monitor employers’ compliance with their commitments.

Of course, in order for monitoring initiatives recently introduced or underway to successfully improve monitoring of employers and thereby influence employers to meet their commitments under the program, the occupation, location of work and employer of the TFW must be known. Currently, most TFWs are issued employer-specific work permits that also specify the occupation and location. This is done following an assessment, based on an LMO, of the labour market impact as well as the genuineness of the job offer, which includes an assessment of the specific employer, work offered, and the wages and working conditions offered.

Recommendations to expand open work permits (including through the issuance of occupation/sector or province-based work permits) with a view to improving TFWs mobility would undermine initiatives recently introduced or underway to better monitor employers’ compliance with their commitments under the TFWP, and hence, better protect TFWs. It should be noted that TFWs mobility has been improved through an initiative to expedite the processing of work permits for “new employer” applications as of November 2008, which has allowed the Government of Canada to reduce the wait time for these new work permits from approximately four months to one month. Work permit e‑applications, which are currently being developed, could further enhance these processing times.

Finally, moving away from employer-specific work permits would prevent the Government of Canada from effectively assessing the impacts of the entry of the foreign national on the labour market, including whether employers have made reasonable effort to hire or train Canadians, or if the entry of the foreign national fills a labour shortage or impacts labour disputes at the place of employment. For similar reasons, the Government of Canada also carefully limits the use of open work permits for family members of TFWs, particularly in the current economic context, when many Canadians are seeking employment. Removing employer-specific work permits would also prevent the Government from monitoring layoffs of TFWs; it would also prevent Canadians from ensuring that employers are not seeking to replace Canadians with TFWs and that new TFWs are not entering the country when others are available. Furthermore, TFWs must understand the temporary context of their authorization to remain and work in Canada: when unemployed and unable to find employment, they are expected to return home at the end of their authorized stay.

The Committee draws attention to the concern that the potential for abuse is heightened when the TFW resides on the premises of or with the employer. It recommends removing the live-in requirement for live-in caregivers and the requirement to live on the premises of employers for seasonal workers. Recommendations related to live-in caregivers are addressed under the Live-in Caregivers section below. 

Apart from the LCP, there is no requirement for TFWs to live on the premises of their work site or employers’ residences or rented accommodations. However, under the SAWP, employers are required to provide accommodation for their workers, and these are often located on the work premises for obvious practical reasons.

Generally, lodging conditions fall under provincial, or in some cases, municipal authority. For federally regulated occupations, these fall under the responsibility of the Labour Program at HRSDC. In the case of issues relating to accommodation, TFWs can access complaint mechanisms through the responsible body. 

Under the SAWP, housing that is provided by employers must be inspected annually by the appropriate provincial/municipal authority. Furthermore, as these labour movements are negotiated through international bilateral agreements, workers benefit from the direct involvement of their governments in their work arrangement and can raise concerns with and access advice and support from their government representatives. Issues such as unacceptable lodging conditions can be addressed at SAWP intergovernmental review meetings, held each year before the crop season, as well as through complaints as they arise.

Within existing authorities, the Government of Canada is developing an accommodations standards policy that will clarify accommodations requirements for all employers with TFWs to ensure that they are housed in acceptable conditions. The Government of Canada will also explore the feasibility of including telephone access in any national accommodations standards policy currently being developed. Once completed, the new policy will be communicated to the public through the HRSDC Web site.

It should be noted that all workers in Canada, including foreign workers, who work in insurable employment and pay Employment Insurance (EI) premiums may be entitled to receive EI benefits providing they meet the insurability, qualifying and entitlement conditions applicable to all contributors. As EI is based on principles of universal coverage, virtually all paid employment in Canada is insured, including for the approximately 250,000 TFWs who were in Canada in 2008.

The principle of universality and the fact that the employment, not the employee, is insured, make it difficult to create exemptions for specific groups of workers without compromising fundamental aspects of the EI program. An exemption of a type of employment from insurable employment would affect all workers in that type of employment and could not be limited to a particular group of workers. Additionally, the universal coverage principle creates a level playing field for employers and employees. Exempting a specific group of workers from participation would make employees from that group less costly to employ and thus disadvantage other Canadians. As the Committee notes, as TFWs are particularly vulnerable, exemption from EI could leave TFWs all the more vulnerable in the event of an unexpected separation from employment.

TFWs who lose their jobs while holding a valid work permit are able to seek new employment, are considered available for work, and consequently are eligible to receive EI benefits. Each year, several thousand TFWs receive EI benefits, including regular, maternity and parental benefits.

Under the lower-skilled foreign workers pilot, it is the employers’ responsibility to ensure TFWs are registered for workers’ compensation. Recommendations related to medical exams to ensure appropriate compensation in cases where injuries or diseases are caused by the workplace do not fall under the mandate of the Interim Federal Health (IFH) Program. The IFHP pays for medical care expenses for refugees, refugee claimants, individuals detained under the IRPA, and victims of human trafficking if those individuals are not covered by a public or private plan and lack the financial means to pay for those services themselves. The IFHP is not a workers’ compensation program. Opening IFHP’s role to assessing workers’ compensation coverage is beyond the legal mandate of the program.

A number of the Standing Committee’s recommendations deal with matters within provincial jurisdiction, for example, that TFWs meet with a NGO within three months of their arrival to follow up on labour legislation compliance. The Government of Canada considers it inappropriate to comment on behalf of provinces and territories.

Labour market and prevailing wages

This section explains the processes through which the Government of Canada assesses Canadian labour market conditions and establishes prevailing wages. It addresses recommendations #9–19 and #35–36.

The process of bringing TFWs to Canada is driven by employer demand. There are no quotas for this program. Historically, the TFWP has been responsive to labour market trends—when unemployment increases the number of TFWs in and entering Canada decreases, and vice versa.

The Labour Market Opinion (LMO) process is designed to balance regional/sectoral labour pressures, while strengthening employer accountability and increasing program integrity and worker protection.

Prior to Budget 2007, in order to streamline the LMO process, HRSDC developed initiatives such as the Occupations Under Pressure Lists, and extended the period of stay under the Low-Skilled Pilot Project from 12 to 24 months, in order to meet employer needs. Further to commitments to program improvements announced in Budget 2007, the Government of Canada took additional steps to facilitate the entry of TFWs to meet employers’ labour and skills needs. LMO application backlogs were significantly reduced in BC and Alberta as a result of the implementation of the E-LMO. In addition, further administrative improvements included an online application process for key streams, concurrent processing of LMOs and Work Permits, and centres of specialization for targeted streams, such as the Live-in Caregiver Program.

Concerning the committee’s recommendation to issue a “hiring permit”, HRSDC is currently mandated under the IRPR to issue an opinion based on an assessment of the potential labour market impact of the entry of foreign workers in Canada. Specifically, HRSDC is required to assess the employer’s efforts to hire Canadian workers: the wages and working conditions offered; possible impacts, if any, on labour disputes at the place of employment; and possible benefits from the entry of foreign workers (e.g. filling labour shortages, transferring skills, or creating direct employment for Canadians). The opinion prepared by HRSDC is similar to the hiring permit proposed by the committee—changing the name of HRSDC’s opinion to a “hiring permit” and the associated process would have little substantive benefit, but would require regulatory changes.

As mentioned, HRSDC, CIC and CBSA are working on a package of regulatory amendments that, among other things, would enable HRSDC and CIC to more effectively assess the genuineness of an employer's offer of employment. The regulations do not currently prescribe any factors on which to base the opinion of this aspect of an employer’s offer of employment. The amendments would specify the factors to consider in assessing genuineness and are intended to lead to a more systematic and rigorous approach to this aspect of an LMO. In addition, recent changes to the LMO application will strengthen the assessment of an employer’s continuing need for TFWs and past compliance with the program requirements.

In cases where employers anticipate that their human resource needs will continue beyond the period covered by the TFW’s work permit, employers are requested to apply for a new LMO four months prior to the expiry of their current work permit. Given the rapidly changing labour market conditions, a new LMO ensures that the employment of a foreign national will not have a negative impact on the labour market in Canada.

In order to strengthen the integrity of LMOs by ensuring that CIC has a reasonably accurate assessment of labour market conditions when evaluating an application for a work permit, effective May 19, 2009, all LMOs issued to employers will be valid for the purpose of work permit applications for a maximum of six months from the date of issuance.

Regarding the recommended list of employers who have received a “hiring permit”, there are a number of challenges associated with implementing this recommendation, including Privacy Act concerns.  However, a voluntary list could be considered subject to these constraints. In addition, it is important to note that TFWs can seek a new job with a different employer once in Canada as long as they seek a new LMO (if required), as well as a new work permit. HRSDC and CIC currently facilitate this process in certain cases to ensure worker protection.

The Government of Canada recognizes the importance of establishing a rigorous methodology for assessing labour shortages. To this end, we are currently undertaking activities designed to ensure a rigorous assessment of labour shortages on a case-by-case basis. 

During times of economic slowdown, though TFWs may continue to be required in certain sectors or regions, it is probable that employers will have access to a larger number of Canadians and permanent residents and therefore diminish their need for TFWs. In this context, the Government of Canada continues to require, before issuing a positive LMO, that employers demonstrate, among other things, that they have made reasonable efforts to hire Canadians and permanent residents. 

On January 1, 2009, the Government of Canada introduced a new, consistent national advertising standard. All occupations are now subject to minimum advertisement requirements based on skill level. This standard was introduced in an effort to ensure that regardless of the occupation, Canadians are not denied an opportunity to apply for available jobs.

In addition, TFW annexes to immigration agreements are being negotiated with certain provinces to provide them increased responsibilities in managing the TFWP. These annexes provide provincial and territorial governments with the authority to waive the requirement for an LMO from HRSDC for specific occupations in their jurisdiction. This is based on their own assessment of their specific labour market.

HRSDC also produces Looking Ahead: A 10-Year Outlook for the Canadian Labour Market, which is made widely available to the public via the Internet. This report is a detailed 10-year labour market forecast at the national level. HRSDC uses forecasting models to identify likely trends over the medium term in the level, composition and sources of labour demand and labour supply, as well as in the industrial and occupational distribution of employment. A key objective is to identify occupations where the current and projected states of supply and demand suggest that imbalances could develop or persist over time.

HRSDC is committed to addressing the issue of prevailing wages and has created advisory groups, with representation from both industry and labour, to seek input into a new methodology for establishing wages, as well as a mechanism for informing employers and stakeholders of the methods used to determine prevailing wage rates. Once the consultation process is complete, the new prevailing wage methodology and the specific wages will be made publicly available to employers and workers on the HRSDC and Service Canada web sites.  

Regarding the Committee’s recommendation that the Government of Canada create a web portal for people who were at one time TFWs, mechanisms are currently in place to ensure information on how to access benefits from outside of the country, such as the Canada Pension Plan (including forms and contact information for the relevant Government of Canada bodies), is available online to TFWs. The Government of Canada will investigate mechanisms to strengthen the provision of this type of information via the Internet.

Live-in Caregivers

This section responds to recommendations #4, #5 and #34 of the Standing Committee report.

Although most recommendations of the Standing Committee to enhance protections of TFWs also apply to live-in caregivers, some specifically address the Live-in Caregiver Program (LCP). While the Standing Committee’s interest in LCP issues related to protections and support for live-in caregivers has been demonstrated on other occasions since the release of its report on Temporary Foreign Workers and Non-Status Workers, the Government of Canada limited its response to the recommendations put forward in this report.

Extending the three-year period by one year

The Committee recommends extending by one year the current three-year period to acquire the work experience needed to meet permanent residence requirements, which would allow more time for live-in caregivers caught in abusive situations or by circumstances beyond their control, such as health problems, to change employers without jeopardizing their chance for permanent residency. 

Under the LCP, participants must complete two years of full-time work for an authorized employer in the occupation within three years of their entry to Canada to qualify for permanent residence. While unemployed and waiting for a new work permit to work for a new authorized employer, live-in caregivers may risk not meeting the permanent residency work requirement. 

While willing to consider options related to this requirement, the Government of Canada points to recent processing improvements that have reduced the wait time for these new work permits from approximately four months to one month. Previously, in cases where a live-in caregiver decided to change his or her employer, processing times for an employer to obtain a positive LMO from HRSDC and for the live-in caregiver to obtain a new work permit fluctuated and may have been as long as four to six months. This wait time may have discouraged live-in caregivers from changing employers for fear of not gaining the 2 years of experience within the three-year period. This may have made them more vulnerable to tolerating exploitation and abuse in their employment. 

As of November 14, 2008, work permit applications from all TFWs requesting a new employer now have priority processing over extensions of work permits with the same employer. 

Between January and July 2009, the processing times for these priorities consistently took 20 working days or less. With estimated processing times for LMOs taking approximately three weeks, the time required for approval of all stages could take up to approximately 10 weeks, including mailing time. Depending on how long it takes a live-in caregiver to find a new employer, these new processing times would allow most of them the opportunity to undergo three to four changes in employers over three years without jeopardizing their application for permanent residence due to lack of work experience. Nonetheless, the Government of Canada recognizes that in some cases it may take some weeks to find a new employer, particularly in remote or rural areas, and that other circumstances beyond the control of the live-in caregiver may arise to restrict his or her employment, such as serious health issues. The Government of Canada is prepared to consider options related to permanent residence requirements. Additional analysis will be undertaken to explore possible alternatives to facilitate permanent residence applications from live-in caregivers who have experienced these extreme circumstances.

Removing the second medical exam

CIC is developing options for other improvements to the LCP, including consideration of the Committee’s recommendation to remove the requirement for permanent residence medical examination. As with other permanent resident applicants, a medical examination is required for LCP permanent resident applicants and their dependents. This ensures that both they and their dependents do not have a condition that would pose a danger to public health and safety or would create an excessive demand on Canadian health or social services. Currently, live-in caregivers who are medically inadmissible or have medically inadmissible family members abroad may request an exemption based on humanitarian and compassionate grounds. These are assessed on a case-by-case basis. Implications of the various options and consistency with requirements for other immigrant categories will need to be assessed before any changes can be considered.

Removing the live-in requirement

The Standing Committee recommends removing the requirement for living in the house of the employer in light of concerns raised regarding adequate housing conditions and the TFWs’ vulnerability in live-in situations. While this recommendation has been addressed under the section Protections for Temporary Foreign Workers in relation to TFWs in general, the live-in component targets the LCP specifically and is being addressed separately under this section.

The Government of Canada does not support this recommendation. The LCP, as is the case for other streams under the TFWP, is a demand-driven program. It facilitates the employment of foreign nationals when Canadians or permanent residents are not available to provide in-home care for children, seniors or disabled persons. The live-in requirement is a vital component of the LCP, given the continuing shortage of caregivers in Canada willing to live in the home of those they are caring for. There may be enough caregivers in Canada to satisfy labour market needs related to live-out care. Should the live-in requirement be eliminated, there would likely be no need to hire TFWs.

As part of anticipated regulatory changes, CIC and HRSDC are planning to improve the assessment of the genuineness of a job offer, including clearer requirements for employers related to accommodation and living conditions to be provided to live-in caregivers. The Government of Canada agrees that the living conditions for TFWs in the homes of those they are caring for should ensure the safety, security and privacy of the TFW. 

Work site visits are not done for live-in caregivers’ employers, except in Quebec, where the Canada-Quebec Accord provides for a provincial role in the program and the Government of Quebec does its own worksite monitoring. Nonetheless, the Government of Canada is prepared to explore potential legislative changes that would allow this, while taking into consideration privacy issues related to the complexity of the work site also being a private residence.

Non-status Workers

Although the Standing Committee has not made any recommendations on the issue of non-status workers, it has devoted a section of its report to it, and the Government of Canada feels it is appropriate to address the conclusions of the Committee in that regard. 

The situation of undocumented workers is a continuing concern for many nations, including Canada. The Government of Canada recognizes that some of these workers may be vulnerable to exploitation and economic downturns and that some stakeholders see their potential for addressing labour market needs. However, as pointed out by the Committee, options for regularizing these non-status workers, while at the same time maintaining program integrity, are limited. There are a number of legitimate avenues for foreign workers to enter the Canadian labour market. Regularizing those who failed to respect the terms and conditions of the program and remained in Canada through illegal avenues would be unfair to all permanent resident applicants who have followed the proper process and are waiting to have their application processed. 

CIC’s position continues to be that the best solution is to ensure that Canada’s immigration programs are responsive to the needs of the country and that they remain fair and equitable for all those seeking residence.

Recent and upcoming improvements to both the temporary and permanent immigration programs will enhance protections for TFWs in Canada while allowing the Government of Canada to better respond to short- and long-term labour market needs.

Looking ahead

The Government of Canada continuously considers ways to improve the integrity of its programs.  

Recent changes to the permanent immigration streams should make them more responsive to long-term labour market shortages and reduce employers’ reliance on the TFW program for these needs. Time must be allowed for these initiatives to bear fruit before any other major change is envisaged.

Furthermore, while facilitating the transition from temporary to permanent status for workers with the skills and human capital attributes needed in Canada, it remains important to maintain a clear distinction between the objectives of the permanent and temporary immigration programs. This will enable Canada to not only respond effectively to identified needs, but also to improve the management of TFWs’ and employers’ expectations. Much improvement can be achieved through a better understanding of the roles of TFWs and employers under the TFWP.