So, you’ve finally jumped through the hoops and hurtles to hire a foreign worker and they have finally arrived in the office and started working. Your team loves the new employee, and with the gap filled, are productive again. You can now relax and forget about immigration. Yes? No.
Once you have a foreign national employee on staff you are required by Immigration, Refugee and Citizenship Canada (IRCC) as well as Service Canada if you have a positive Labour Market Impact Assessment (LMIA), to continue to meet certain obligations to both the government and to the foreign national in order to maintain compliance with Canada’s immigration programs. Companies are randomly audited by Service Canada’s Integrity Branch to ensure that the company is maintaining their compliance with the applicable program. Approximately 1 in 4 companies will be audited each year, which means that every company can expect to be audited at some point.
Here are some things that you should keep in mind about immigration compliance after your new employee has arrived in Canada:
- There are three separate documents against which a company can be compared for the purposes of an audit: a) the work permit, b) the Offer of Employment form which each employer must submit electronically when hiring a foreign worker under an LMIA exempt category, and c) the LMIA itself.
- Once the electronic Offer of Employment is submitted you can no longer access the completed form, you can only see the file entry with the issued reference number. As such, be sure to print a copy of the submitted information for your records prior to submitting the form.
- There are generally six conditions listed on a work permit which include the occupation, location, and the employer listed on the work permit. If your employee is being moved to a new office, assigned to a new project, or is being promoted you must apply for a work permit amendment to change the conditions. The new work permit must be issued prior to the changes taking effect.
- Changes in salary or benefits to an employee, including an annual adjustment for cost of living, must be reported to Service Canada or IRCC prior to the change taking effect. There used to be a 2% differential which was permitted for inflation however this guideline has been removed from the policy in recent years.
- The disclosure of all employment benefits including performance bonuses is generally where I see that employers have the most difficulty during a compliance review. Service Canada and IRCC expect that employers list all benefits their employee will receive. When reporting benefits you should be sure to make use of the “other” box were necessary. Service Canada and IRCC will not limit their review to the medical, dental and pension benefits which are specifically mentioned in the form.
- When signing an LMIA form, a company commits to reviewing the conditions of the employees work on at least an annual basis. Our recommendation is that this be done during the performance review process and that the review be documented by use of a checklist. Our offices have developed such a checklist and would be happy to provide a copy to you upon request. Please fill out our inquiry form to request the checklist.
- Salaries offered to employees who have an LMIA must remain current with the standard prevailing wage for the position as set out by Service Canada, even if the prevailing wage increases past the salary listed in the LMIA. Prevailing wages are regularly updated by Service Canada.
- There are three possible ways an immigration audit can be triggered, a) a random selection, b) there is reason to suspect noncompliance, or c) there is a previous history on non-compliance. When you receive written notification of the review it should indicate the reason for triggering the review.
- Penalties for non-compliance can include bans from the program lasting two years to permanent, financial penalties (annual maximum of $1 million), web publication of non-compliant companies, and the revocation of previously issued documents. Penalties are cumulative for each infraction and each affected individual.
- Self reporting of infractions can reduce a company’s liability, but not significantly so.
One of the ways a company can reduce its liability under the compliance programs is to support their employees in applying for permanent residence. Once an employee possesses permanent residence (PR) status in Canada, they are no longer beholden to the terms and conditions of their work permit or LMIA. Once PR status is issued they can be relocated within Canada, promoted and their salary increased without issue.
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