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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

The immigration situation continues to evolve. Here are a few things that have happened since the long weekend:

1. The government has been requiring all individuals entering Canada (except for certain classes of essential workers) to self-isolate for 14 days. As of midnight EST tonight, these individuals must have a suitable self-isolation plan before arriving in Canada.

   The plan must cover the location of self-isolation and how the individual will travel there. It must also set out how the individual will arrange for things such as food, medication, child care, cleaning supplies, and pet care.

   Those without a suitable self-isolation plan will be required to stay in a government-designated quarantine location for 14 days. Please contact our office if you have any plans to travel to Canada and are unsure if you are exempt from this requirement or if your self-isolation plan is acceptable. This mirrors British Columbia’s move on April 8. As of this date it began requiring all individuals entering the province to submit a suitable isolation plan or be directed to a provincial accommodation to complete the self-isolation.

2. IRCC has paused processing of certain applications from April 9 to 29, 2020. Those who are planning to file a TRV or eTA application during this pause period should consult an immigration lawyer for guidance. Applicants must demonstrate that they are travelling to Canada for an essential purpose. IRCC continues to accept all work and study permit applications but they must be filed online and not through a visa office. Please note that as visa application centres are closed in certain countries, some applicants may have difficulty providing biometrics or sending their passport for visa issuance.
3. We have heard from colleagues and clients that airline personnel and border officers are not applying the travel restrictions as written, with some even reading in additional eligibility requirements. Airline personnel and border officers have been denying entry to spouses of Canadian citizens even though the interim orders and government officials have clearly stated that they are allowed entry. We strongly recommend that family members of Canadian citizens and permanent residents planning on returning  to Canada either speak to one of our lawyers before setting out, or delay their return until further clarification is provided by the Canadian government.

Despite all of the above, it’s important to remember that there have been positive developments at home and abroad. France has announced that it will begin the very challenging task of undoing its confinement measures on May 11. Quebec will begin expanding its list of essential businesses so that economic activity can gradually pick up again. We can’t help but feel a bit optimistic that we will be able to share some good news with you soon.

In the meantime, we continue to strongly 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