Immigration Update: Immigration Compliance Issues Resulting from Covid-19 (May 11, 2020 at 4:00 p.m. EDT)

The government recently amended Canada’s immigration legislation in response to Covid-19. These amendments included additional compliance obligations on employers. Here is what you need to know:

Application

All employers who employ a foreign national holding a closed (employer-specific) work permit are subject to various compliance obligations. Closed work permits may be based on a Labour Market Impact Assessment (LMIA) or are LMIA-exempt (such as intra-company transfer, free trade agreement professional and reciprocal employment work permits).

General Principle Unchanged

All employers must ensure that the foreign worker’s terms of employment are at all times substantially the same and no less favourable than those listed in the LMIA and/or offer of employment. Any changes such as changes in title, duties, hours of work, salary, location of work, or benefits could trigger a compliance issue. This general principle remains unchanged and in full effect. To date there has been no announcement that these requirements will be relaxed for employers.

Many employers have announced salary cuts/deferrals, reduced hours, and layoffs. We encourage employers to be proactive. Employers should consider if any foreign workers have been affected or will be affected, as they may need to file a disclosure with immigration or obtain a new work permit altogether. These changes may also affect other immigration programs, such as those with pending applications for a nomination certificate. Ontario has been reaching out to employers with pending nomination applications to confirm that the permanent job offer remains valid. Those who are laid off and not recalled within 90 days will not be able to proceed with their applications.

New Covid-19 Compliance Obligations

Employers of LMIA-work permit holders must notify Service Canada by email as soon as the foreign worker arrives at the work location. If the foreign worker is arriving from outside Canada, then it is highly likely that a 14-day self-isolation period will apply (note that certain classes of workers are automatically exempt and there is a procedure to request an exemption for those who not part of the named classes). The employer must pay the foreign worker at least 30 hours per week during the initial 14-day self-isolation period, even if the foreign worker is not able to provide any services to the employer during this time. Employers that offer accommodation to the foreign worker must also ensure that the accommodations meet a number of criteria. The government has made it clear that it is inspecting employers to ensure compliance and that employers are expected to promptly provide supporting documentation and other information upon request. We encourage you to seek counsel if you are subject to an inspection.

What are the penalties for non-compliance?

The potential penalties for non-compliance are severe:

• fines of up to $1 million per year;
• a ban from hiring foreign workers ranging from one year to indefinitely;
• public disclosure of your business’ name and address and the violation; and/or
• revocation of previously-issued LMIAs.

In light of the above, we strongly recommend that any employer that employs foreign nationals speak to an immigration lawyer before making any changes to the employment relationship (title, duties, hours of work, salary, location of work, benefits, etc.). Employers should also be reminded that they may be subject to additional provincial or local requirements (e.g., amendments to labour standards legislation, local travel restrictions) and should reach out to their advisors for additional guidance.

You can see the latest government notice regarding these issues at this link.

We also continue to recommend that anyone (including Canadian citizens and permanent residents) seeking to enter or exit Canada speak with an immigration lawyer before doing so. Our lawyers can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; guberman@cilf.ca; appleby@cilf.ca; cowling@cilf.ca; bonisteel@cilf.ca; tsoi@cilf.ca; ali@cilf.ca; green@cilf.ca