Since April 2011, Service Canada, CIC and CBSA officers have been assessing applications for both new and extended temporary work permits and labour market opinions (LMOs) with increased scrutiny. In adjudicating each application, particular emphasis has been placed on whether the employing company has continued to pay their temporary foreign workers with wages and working conditions that have been ‘substantially the same’ as those offered in the original application.

With Canada’s recently updated regulations, employers are required to notify immigration authorities of any substantial changes to the salary, location, duties or other working conditions of their temporary foreign workers and, where such changes occur, apply for a new LMO and/or work permit accordingly.

For the first time since the new regulations were put into force, Service Canada has provided some insight into the precise parameters of what may constitute ‘substantially the same’. In a recent colloquium with immigration professionals, Service Canada advised that they will consider the following changes to be ‘substantial’:

• Changes in salary of 2% or more (this includes both decreases and increases in salary);
• Changes to scope of duties or work in Canada (particularly if the new position is classified under a new National Occupational Classification (NOC) code);
• Changes to work location; and
• Any other changes to the terms or conditions of the offer of employment

Where any of the above changes have occurred in the employment of a foreign national holding an LMO-based work permit, employers are recommended to apply for a new Labour Market Opinion prior to implementing the change.

Moving forward, Canadian authorities will also begin performing more ‘spot audits’ of companies hiring temporary foreign workers in Canada to ensure compliance. As part of such spot audits, companies will be requested to provide documents related to the employment of the company’s staff and temporary foreign workers. Employers must therefore ensure that they are keeping detailed and accurate records for all matters regarding the employment of temporary foreign workers, including copies of work permits, approved LMOs, payroll records, and tax documents.

For further information on Canada’s foreign worker program and compliance requirements, please contact the Bomza Law Group.

More than 300 people around the world awaiting immigration visas have filed legal notices against the Canadian government, claiming they are being “warehoused” in a lengthy backlog.

The litigants, some of whom applied as far back as 2004 are asking the Federal Court of Canada to rule that Citizenship and Immigration Canada (CIC) must process their applications within a reasonable time frame. CIC is being accused of violating a pledge to assess and finalize decisions in a timely fashion.

Ottawa has argued restrictions are needed to reduce a backlog of 900,000 applications however, the government has effectively ceased assessing applications filed before 2008 when the first wave of changes to the Federal Skilled Worker program were brought into effect to “fast-track” the program and reduce processing wait times.

The Federal Court has not yet determined whether it will hear any of these cases however, in 2002 and 2003, the federal government was confronted with a similar stream of court challenges to new regulations and the treatment of backlogged cases. Ottawa offered a $2.9 million settlement to 105,000 backlogged applicants, agreeing to get rid of the new rule that affected pre-existing applications negatively.

USCIS announced today that it has received enough H-1B petitions to reach the statutory cap of 65,000 for fiscal year 2012. The next filing window for the H-1B specialty occupation category will open on April 1, 2013.

Starting Dec 1, 2011 submissions of the Canadian Experience Class and Provincial Nominee Program for Ontario and Quebec (following receipt of nomination from the province) will go to the Centralized Intake Office in Sydney and NOT to the applicable overseas visa office. This is optional until March 2012, at which point it will become mandatory. This will help to streamline the documentary requirements under these two programs rather than needing to satisfy the unique documentary requirements of each visa office.

As of November 18, 2011, Citizenship and Immigration Canada is prohibiting persons charged or convicted of a violent offence against any person – in any country – from sponsoring family members. Presently, persons convicted of offences against a family member are prohibited from sponsoring in certain circumstances. The current regulations are somewhat limited in their bars to sponsorship for persons charged or convicted of these offences.

The new revisions render it impossible for persons to sponsor family members if they have committed an offence against an expanded list of individuals, or particularly violent offences against any person.

The auditor general’s office has expressed frustration with Citizenship and Immigration Canada’s continuing failure to correct basic flaws in how it renders decisions. In a recently released report, the Auditor General’s office has found that Citizenship and Immigration Canada and the Canada Border Services Agency (CBSA) have failed to sufficiently screen foreign nationals for medical and criminal inadmissibility.  The AG has indicated that the agencies “need to do a much better job of managing the health, safety and security risks associated with determining admissibility before issuing a visa.” The corrections required by the AG’s report indicate that foreign nationals may expect higher screening targets for medical and criminal inadmissibility in the future.