The foreign worker balancing act

The Canadian government is poised to introduce changes to the system that allows Canadian employers to hire foreign workers. In reaction to the political controversy that arose when a Canadian bank was discovered hiring foreign workers after laying off Canadian workers, the government promised to tighten up the system.

The system as it stands now is one in which a Canadian business can request permission from the Canadian government to hire a foreign worker through the request for a Labour Market Opinion (LMO). An LMO is an opinion by Human Resources and Skills Development Canada that the employment of a foreign worker would have a positive or neutral impact on the Canadian labour market.  In other words, the worker would not adversely impact the employment prospects of a Canadian worker.

Typically, employers requesting an LMO must generally advertise an employment vacancy in the local labour market at labour market wages and working conditions and demonstrate that none of the applicants were qualified to do the position. The employer must then demonstrate that the foreign worker is an appropriate fit for the position.

In the last ten years, the number of foreign workers in Canada has more than tripled, and with Canada’s current unemployment rate at more than 7%, concerns have arisen that these workers are filling positions which could be filled by Canadians.  And with the restrictions imposed by the government on permanent immigration by skilled professionals, many have wondered whether Canada is moving toward a “guest worker” system.

Therefore, the considerations to be balanced by the government in changing the system for hiring foreign workers are many: how to ensure that Canadians are not prejudiced in their job hunt, how to ensure that wages are not being depressed, how to ensure that Canadian businesses are not hurt by the lack of appropriate skilled workers, and how to ensure that the rights of foreign workers are protected.

While the Canadian public is rightly concerned about the protection of employment opportunities for Canadians, the fact remains that there are some positions that Canadians will not do, based upon inconvenient hours, long work days or other unpalatable conditions. There are also some jobs which skilled foreign workers are better placed to do, and will lead to more prosperous Canadian businesses.

In the end, a balanced approach, which has been the approach of our best immigration polices, will be most effective.  This approach will not make it too onerous for Canadian businesses with legitimate labour needs to find the right workers, and will at the same time ensure that Canadians get the first opportunities to be hired or trained.



New Canadian skilled worker criteria announced

Yesterday the Minister of Citizenship and Immigration announced the final components of the skilled worker program, which is set to resume receiving applications on May 4, 2013. This category had been suspended by the Minister at the end of June, 2012 in order to provide the Department with an opportunity to reduce the backlog in applications which had accumulated.

The new criteria reveals a continuing concern to eliminate the backlog. The overall number of skilled worker application that will be processed by the government will be capped at 5000 over the next year (during the previous skilled worker applications were capped at 10,000). Further, applicants are limited to those who can demonstrate at least one year of experience in 24 occupations (the government had previous had a list of 29 occupations).

Those occupations are:

  •  Engineering managers
  • Financial and investment analysts
  •  Geoscientists and oceanographers
  •  Civil engineers
  •  Mechanical engineers
  •  Chemical engineers
  •  Mining engineers
  •  Geological engineers
  •  Petroleum engineers
  •  Aerospace engineers
  •  Computer engineers (except software engineers/designers)
  •  Land surveyors
  •  Computer programmers and interactive media developers
  •  Industrial instrument technicians and mechanics
  •  Inspectors in public and environmental health and occupational health and safety
  •  Audiologists and speech-language pathologists
  • Physiotherapists
  •  Occupational Therapists
  •  Medical laboratory technologists
  •  Medical laboratory technicians and pathologists’ assistants
  •  Respiratory therapists, clinical perfusionists and cardiopulmonary technologists
  •  Medical radiation technologists
  •  Medical sonographers
  •  Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)

The third and final change is that applicants must first have their educational credentials assessed by one of four designated credential assessment organizations.

Given the smaller caps and the additional time consuming process of credential recognition, qualified skilled worker applicants with the above experience will need to act fast in order to ensure that their application is accepted for processing.

Immigration effects of criminal sentencing

It is difficult to find any area of law which can be practised without at least a rudimentary knowledge of at least one other area. Such is the case with criminal and immigration law.

Too often, Canadian permanent residents are convicted of offences without any awareness of how a conviction may jeopardize their immigration status. Defence counsel and prosecutors might be unaware that what seems to be a fair sentence can lead to the swift deportation of a longstanding Canadian resident. 

Criminal convictions can lead to findings of criminal inadmissibility for permanent residents, and these findings lead to removal orders. Canada’s Immigration and Refugee Protection Act recognizes that long term residents should not be automatically deported for committing minor criminal offences without a consideration of their individual circumstances. Therefore, permanent residents are allowed to appeal removal orders to the Immigration Appeal Division (IAD) on humanitarian and compassionate grounds, requesting that the removal order be cancelled or at least suspended.

However, for more serious crimes (currently defined as crimes for which a sentence of two years’ imprisonment or more is imposed, but soon to change to a six month sentence), no appeal is allowed to permanent residents, thus allowing for immediate deportation.

Criminal sentences are imposed after considering a wide range of factors. Until a recent Supreme Court of Canada decision, the significance of immigration consequences from criminal sentences was not clear.

However, in Pham, the Supreme Court recently clarified the law. Pham involved a permanent resident who was sentenced to two years’ imprisonment, thus eliminating his right to appeal his removal order and win a reprieve from immediate deportation. Neither his defence lawyer nor the prosecutor nor the sentencing judge was aware of this immigration consequence. A sentence of two years less a day would have allowed Pham an opportunity to stop his deportation.

Pham appealed the sentence. On appeal, the Crown attorney acknowledged that it would have agreed to a sentence of two years less a day if it had been aware of the immigration consequences to Pham. However, the Alberta Court of Appeal ruled that the sentence should not be disturbed, for reasons including the fact that Pham had “abused the hospitality” given to him by Canada.

The Supreme Court of Canada overruled the Court of Appeal, finding that as long as a sentence adjustment based upon immigration consequences does not take the sentence out of the appropriate range, it is entirely appropriate to consider immigration consequences in sentencing. Based on the Crown’s concession, the Court overturned the Court of Appeal’s ruling and adjusted the sentence to two years less a day.

This decision makes communication imperative between immigration and criminal counsel. Criminal counsel should appeal sentences if it is clear that the sentencing judge did not weigh immigration consequences. Immigration counsel should impress upon criminal counsel the importance of seeking a sentence that does not jeopardize a permanent resident’s right to appeal.