Regulations amending the Immigration and Refugee Protection Act (“IRPA”) were introduced in 2015 to allow the government greater ability to track and monitor certain foreign nationals working in Canada. Said to be, in part, a protective measure for vulnerable temporary foreign workers (“TFWs”), it institutes a user pay, and rigorous compliance, monitoring, and penalty regime of which employers that rely on TFWs need to be aware.

Historically, the government was unable to track and monitor terms and conditions of employment underlying work permit applications that were made at the port of entry, unless they were supported by a Labour Market Impact Assessment (“LMIA”). Under the IMP, participating employers must submit those details, and business information, to Immigration, Refugees, and Citizenship Canada (“IRCC”) in an online Offer of Employment (the “Offer”) and pay a $230 fee before a foreign national applies for a LMIA exempt work permit (or extension of same).

The information provided in the Offer allows the government to later conduct an inspection or audit to ensure employer compliance with same.

Whereas employers previously had to employ TFWs in “substantially the same” occupation as originally offered, “the same” occupation is now mandated. There is much less latitude to amend terms of employment; it is critical to closely monitor duties, wages, salary, benefits, hours of work and other terms to ensure compliance throughout the term of employment.

Law enforcement authorities now have wide investigative powers such that employers may be subject to on-site visits, records inspections and interviews of the employer and its employees. While employers may respond to preliminary findings, those that are ultimately found to be non-compliant may face substantial fines, a ban from participation in the IMP and have their names publicly noted. 

Your clients can reduce the risks of IMP participation by:

1. Planning well in advance. Employers that have not registered for an IRCC employer portal account and uploaded an Offer will find TFWs delayed at the port of entry, or otherwise denied entry, until this is done.
2. Carefully reviewing the questions asked in the process of uploading an Offer. Ensuring that all information provided is accurate and is not likely to lead to compliance issues.
3. Paying careful attention to the attestations required of the employer, which include confirmation of compliance with federal/provincial/territorial laws regulating employment and recruitment of all employees.
4. Ensuring compliance with the Offer and with IRPA.
5. Immediately notifying IRCC of any changes in the conditions of employment (which should not be less favourable than those submitted in the Offer).
6. Keeping all records related to the TFWs’ employment for at least six years after the first day of employment, including those related to communications, hours worked, salary, benefits, and job duties. 
7. Making reasonable efforts to ensure a workplace that is free from abuse, and submitting documentation (i.e. policies, training manuals), if asked, to demonstrate same. 

The IMP compliance regime is still in its infancy and it is difficult to predict how authorities will react to any ultimate finding of non-compliance. However, if care is taken when submitting the Offer and throughout the employment relationship, the compliance-related risks associated with accessing the IMP can be substantially reduced.