Sweeping Changes Affecting Foreign Workers and Live-in-Caregivers

Posted: August 25, 2010 by Andres Pelenur

New changes coming into effect in April 2011 will affect employers, foreign workers and live-in caregivers

The Governor General in Council has recently approved amendments to Canada's immigration laws that dramatically alter how foreign workers and live-in caregivers are regulated in Canada. The changes will come into on April 1^st, 2011.

With regard to foreign workers, visa officers will be armed with an exploratory mandate to verify the validity of an offer of employment to a foreign worker. Specifically, they will try to determine the exact nature of the company making the offer, (i.e. confirm that the business truly operates in the area it claims to); whether the offer is consistent with the employment needs of the business; whether the employer can credibly afford the foreign worker; and, more importantly, whether the employer has complied in the past with both the federal and provincial laws that regulate employers.

This last point, though seemingly innocuous, raises some serious concerns as a list of banned employers will be published online that showcases every company who breached pervious laws, conditions or undertakings made to the government of Canada. Any employer who lands on the black list will be barred from submitting a new application for a foreign worker for a period of two years. In a nutshell, Citizenship and Immigration Canada will be looking to see if the employer offered the correct wages, working conditions and occupation title that it originally promised when it filed its initial application.

The published list of banned employers is extremely controversial, given the numerous legal implications that arise from such a list, including privacy issues, damage to reputation, etc. It is also not clear how companies who feel they have been falsely accused or mistakenly put on the list will be able to seek redress.

Another important change with sweeping consequences is a new amendment that caps many work permits from being extended beyond a period of four years. After a person has worked in Canada for four years, they will not be allowed to apply for a new work permit until an additional four years have elapsed! The four year imposed gap is designed to encourage temporary foreign workers who are serious about living in Canada to apply for permanent residence under a provincial, skilled worker or experience class stream. The logic is that if they want to continue to work and live in Canada beyond four years, they should obtain a more permanent status.  Fortunately, the four year rule will not apply to work permits under international agreements such as NAFTA (professionals, intra-company workers, etc), for intra-company workers outside of the NAFTA scheme, or for individuals who can prove that they are making significant benefits to Canada’s economy.

With regard to live-in caregivers, the amendments coming into force next April will empower visa officers to confirm that the caregiver will in fact live in a proper household without supervision, that proper furnishings and privacy are being offered, and that the employing family has sufficient financial resources to actually pay the caregiver as promised. Although I am the first to agree that many caregivers have suffered terrible abuse at the hands of amoral employers, and that their rights should be protected, the question is whether busy visa officers sitting in far away consulates are the best equipped individuals to protect caregivers.

Given the already stretched and limited resources available to visa officers around the globe, it remains to be seen how these additional investigatory duties will be effectively discharged. In addition, I can already foresee a major increase in litigation appeals filed by frustrated employers and families now that visa officers are being given even greater discretionary powers which can easily result in erroneous conclusions and therefore inappropriate visa rejections. As for live-in caregivers, a separate government department within Canada who can physically drive up to an employer’s house and check on conditions would have seemed more appropriate and effective in protecting their rights.

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