Canada Coronavirus Breaking NewsWorld Coronavirus Breaking News

Coping With COVID-19: Employers’ Top 10 Immigration Law FAQs – Coronavirus (COVID-19) – Canada – Mondaq News Alerts


To print this article, all you need is to be registered or login on Mondaq.com.

The COVID-19 pandemic is disrupting more than Canada’s
domestic workforce. It’s also disrupting Canadian
employers’ access to temporary foreign workers generally and in
specific sectors long heavily reliant on temporary foreign workers,
such as
fish and seafood processing
and
agribusiness
, particularly during the upcoming fishing and
planting seasons. Canada’s current travel ban focusses on
prohibiting non-essential travel. Technically, foreign workers are
exempt from the travel restrictions if they aren’t travelling
for an optional or discretionary purpose. In practice, however,
it’s a very different – and evolving – story. For
the past few weeks, employers and their immigration lawyers have
been working to interpret the travel restrictions and their
implications for temporary foreign workers to Canada. Here are the
(current) answers to employers’ top ten immigration law
questions.

1. What travel restrictions apply to temporary foreign workers
travelling to Canada?

That depends on from where and for what purpose.

On March 26, 2020, the Canadian federal government released two
Orders in Council pursuant to the federal Quarantine Act
to provide guidance for travel to Canada.

United States. The Order for travel from the
U.S. is in force until April 21, 2020, and prohibits entry from the
U.S. for foreign nationals who wish to enter Canada for an optional
or discretionary purpose (tourism, recreation and
entertainment).

Non-U.S. The Order for travel from any country
other than the U.S. is in force until June 30, 2020, and prohibits
all travel to Canada unless the foreign national holds a valid work
permit or a work permit approval letter or, meets one of the narrow
exemptions provided in the Order, which were identified as critical
for health, safety and food security reasons. Some of these
exemptions include:

  • Providers of emergency services for the protection or
    preservation of life or property (i.e. firefighters and medical
    service providers);
  • Workers in the marine transportation sector who are essential
    for the movement of goods by vessel;
  • Persons delivering, maintaining, or repairing medically
    necessary equipment or devices or making medical deliveries
    required for patient care in Canada.

All foreign workers who enter Canada, except “essential
service providers”, and truck drivers who regularly cross the
border, are subject to the current mandatory 14-day quarantine
period.

2. Can temporary foreign workers apply for a work permit at the
Port of Entry?

Normally, foreign nationals that do not require a temporary
resident visa (TRV) to travel to Canada are eligible to apply for
their work permits at the Port of Entry (airport or land border).
The new travel restrictions pursuant to the Orders in Council
provide the following:

United States. The Order for travel from the
U.S. does not require temporary foreign workers to have a valid
work permit or approval letter prior to travelling to Canada
(provided they have been in the U.S. for at least 14 days); as
such, foreign nationals travelling from the U.S. are entitled to
apply for a work permit at the Port of Entry. However, the travel
restrictions are being enforced strictly by both air carriers and
the Canada Border Services Agency (CBSA).

Air Travel: If a foreign national travelling
from the U.S. wishes to fly to Canada to apply for a work permit at
the Port of Entry, they must first be able to board the plane. This
may be challenging: before boarding a flight, a foreign national
must confirm that they have read the Order and that, to the best of
their knowledge, they are not prohibited from entering Canada under
this Order. However, the federal government has advised air
carriers that anyone who does not clearly meet one of the travel
restriction exemptions is not permitted to board a plane, and they
face heavy fines if they improperly board and fly a person to
Canada. As a result, foreign nationals may have issues boarding a
plane to Canada to apply for a work permit at the Port of Entry. As
such, a worker may have to enter Canada at a land border.

Application to Canada Border Services Agency:
Upon arrival at a Port of Entry, a foreign national will submit
their work permit application to a CBSA agent for processing. On
March 26, 2020, the President of the CBSA issued a statement
indicating the CBSA is “working aggressively to limit the
spread of COVID-19 in Canada”, but that “essential
travel” continues unimpeded and travel is permitted for people
who need to cross the border for work purposes. It also states that
healthy workers who provide essential services and maintain
critical infrastructure can cross the border. Therefore, while the
Order only prohibits travel for optional or discretionary purposes,
a CBSA agent has the discretion to determine whether to issue a
work permit and may refuse to issue work permits to individuals
whose travel to Canada is deemed non-essential.

Non-U.S. Foreign nationals, whether they
require a TRV or not, will not be allowed to board a plane
departing from any country other than the United States if they
don’t have a work permit or an approval letter. In other words,
foreign nationals travelling from outside the U.S. will not be able
to apply for a work permit at the Port of Entry.

3. Can foreign workers still apply for a Canadian work permit
online during the COVID-19 pandemic and despite the travel
restrictions?

Theoretically, foreign workers can still apply online for work
permits to Canada during this time and they may wish to submit
applications now to get them in the queue, despite the potential
for delays. This also applies to applicants who are normally
allowed to apply at the Port of Entry. Practically, however, there
are many barriers. Most foreign workers need to obtain medical
examinations and/or biometrics before they will be issued a work
permit; however, most visa application centers worldwide are
closed. If applicants cannot meet these requirements, and their
work permit applications cannot be processed in the usual course,
it is reasonable to expect delays when applying for new work
permits.

4. Are temporary foreign workers in seasonal industries subject
to the travel restrictions?

Employment and Social Development Canada (ESDC) has implemented
changes to the Temporary Foreign Worker Program (TFWP) that
specifically exempt seasonal agriculture workers and seafood
processors from the COVID-19 travel ban and has temporarily
modified the Labour Market Impact Assessment (LMIA) process to
waive the required 2-week recruitment period for the next 6 months.
Employers hiring workers under the TFWP can also increase the
maximum employment duration for workers from one to two years,
intended to improve flexibility and reduce the administrative
burden for employers. Specific instructions for agricultural
workers under the Seasonal Agricultural Worker Program and the
Agricultural Stream are being developed, with more details to
follow.

5. What can foreign workers travelling to Canada do to improve
their chances of getting across the Canadian border?

While employers await further guidance and clarity from IRCC,
the following four tips might help foreign workers travelling to
Canada at this time:

Employer confirmation. Foreign workers with
valid work permits or work permit approval letters are technically
exempt from the travel ‘ban’, but they must also carry: the
employer’s confirmation it’s still operating and is not
subject to mandatory closure of non-essential businesses;
confirmation the job is still available; and an explanation of why
they need to travel to Canada at this time, since all non-essential
travel, even if it’s work-related, is to be avoided. Port of
entry applicants should carry similar documentation.

Medical Clearance. Canada’s federal
government is asking airline operators to conduct a health check of
all air passengers travelling to Canada from international
locations. To reduce the chance a foreign worker is held back for
health reasons, it will be helpful if they carry recent medical
evidence confirming their health.

Self-isolation Plan. CBSA is doing its best to
ensure travelers to Canada adhere to the 14-day self-isolation rule
implemented by the federal government. In order to assist, have a
self-isolation plan ready, addressing key questions, like: Where
are they self-isolating? How are they going to get to their
accommodations without being in contact with anybody? How are they
going to have groceries delivered? If the worker is exempt from the
self-isolation requirements, bring the relevant self-isolation
exemption order issued by the province of destination.

Family Members. If a foreign worker plans to
travel to Canada with immediate family members, they will need
authorization from a consular officer, as family members of foreign
nationals do not meet one of the exemptions under the Orders in
Council.

6. I have a number of temporary foreign workers in
Canada on Labour Market Impact Assessment (LMIA) supported work
permits. Do I risk non-compliance with the terms of the LMIA if I
temporarily lay these employees off because of
COVID-19?

Non-compliance in these circumstances is probably justified.

An employer that hires a temporary foreign worker pursuant to an
approved LMIA is bound to provide that worker with wages and
working conditions the same as those set out in the job offer.
It’s critical that an employer of a Temporary Foreign Worker in
Canada
comply with immigration laws
, or both the employer and the
Worker could face legal compliance enforcement mechanisms.
Typically, an employer that reduces the hours or wages of its
foreign workers will face fines or other penalties for any
non-compliance, but that non-compliance may be justified in certain
circumstances:

Dramatic economic change. The implementation of
measures by the employer in response to a dramatic change in
economic conditions that directly affected the employer’s
business, as long as they weren’t directed disproportionately
at foreign nationals employed by the employer.

Force majeure. Generally, the inability to
comply because of an unforeseeable event beyond anyone’s
control.

Whether a situation dramatically changes the employer’s
economic position or is an unforeseeable event beyond its control
is a fact-specific analysis. However, if the employer had to reduce
the scope of their operations due to COVID-19, they may be safe
from strict compliance with the immigration law requirements.

7. Should I voluntarily disclose non-compliance?

Not necessarily immediately.

If the temporary foreign worker is working in Canada under an
employer-specific (or “closed”) work permit, the employer
must consider its obligations under either the TFWP or the
International Mobility Program (as applicable) and whether it must
voluntarily disclose it is non-compliant with: the wage (including
the prevailing wage requirements); hours; and/or location of work
(for example, if the employee is working remotely). The
non-compliance might be justified if the employer can demonstrate
that all employees, not only the temporary foreign workers, were
laid off or had hours reduced.

It is generally best for an employer to voluntarily disclose
non-compliance. However, in the current circumstances, you might
want to delay disclosure for the first few weeks. ESDC has
indicated it will be providing guidelines to ease the
administrative burden of reporting, and is considering the
implications of changes to the wage, hours, and other conditions.
ESDC is expected to provide a list addressing specific information
that employers must and must not report under the current
circumstances and this guidance will be critical for employers
wondering what to disclose.

8. Are temporary foreign workers entitled to Employment
Insurance (EI) benefits if I lay them off because of COVID-19?

Possibly. Under the Employment Insurance Act, all
“insured” workers can access EI benefits: they must have
paid into the EI account and have worked in insurable employment.
Workers unable to work because they are temporarily unemployed,
sick, pregnant, caring for a newborn or newly adopted child, or
providing support to a seriously ill family member, may receive
temporary financial assistance if they meet specific qualifying and
entitlement conditions. Temporary foreign workers employed in
insurable employment must pay EI premiums because it is the
employment, not the individual, that is insured. However, foreign
workers are exempt from EI premiums when they remain covered under
an EI program in their originating country while working
temporarily in Canada.

9. How do temporary foreign workers satisfy the availability
for work criteria for EI benefits eligibility?

ESDC must assess the availability of an EI benefits claimant who
holds a valid work permit based on their individual circumstances,
taking into consideration all the terms of their work
permit.

Open Work Permit. When a claimant indicates
they are available for work, and there is no issue with the work
permit or any contradictory evidence on file concerning the
claimant’s availability, ESDC must consider their entitlement
to benefits the same as for any other claimant.

Closed Work Permit. A claimant whose work
permit is “closed” – that is, includes a
restriction to one employer or location of work – is not
normally considered available to accept work from another employer,
and could be disentitled from collecting EI benefits. However, a
closed work permit does not, by itself, determine eligibility for
EI, and the mere fact the work permit restricts the worker to one
employer is not the only factor relevant to the claimant’s
availability. It is important to fact find and take all factors
into consideration before determining that a foreign worker is
unavailable because their work permit restricts their employment to
one employer. There are contradictory decisions on the issue of
whether a foreign claimant with a closed work permit should be
considered unavailable for work. While there is a presumption of
non-availability when a claimant’s work permit includes a
restriction to one employer, it is possible to rebut the
presumption. Therefore, any temporary worker affected by a Covid-19
related lay off should apply to have their EI eligibility
assessed:

  • The claimant should make a declaration regarding their
    availability.
  • In addition, the claimant must agree that once they receive an
    offer of employment from a new employer, they will contact IRCC and
    apply to have the restriction on their work permit removed.
  • If applicable, the claimant should refer to any international
    agreements that would allow them to work in Canada upon meeting the
    eligibility requirements.

Expired Work Permit. If the claimant proves
they applied for a new work permit before the previous work permit
expired, availability is considered the same as it is for any
claimant. If a claimant’s work permit has expired and they
cannot show that they applied for an extension prior to the expiry
date, the claimant no longer has any status in Canada and, as such,
they will be unable to prove they are available for work, and a
disentitlement may be warranted.

10. As an employer, I have supported temporary foreign workers
for permanent residence through the Atlantic Immigration Pilot
Program or a Provincial Nomination program. If I must temporarily
lay off employees with nominations, will they lose their
nomination?

IRCC seems to have taken the position that they will not. Only
the New Brunswick immigration office has issued a
statement
, saying “measures taken because of Covid-19
(self-isolation, etc.) will NOT impact their immigration
applications currently being processed by our office, or
applications currently being processed federally for permanent
residency. We will also be considerate of the program requirements
and Covid-19 measures will not impact client eligibility (reduced
hours or a break in employment) for new applicants. We understand
all measures are outside of their control and the reduction in work
hours and availability will be considered.” It is reasonable
to believe IRCC has given the other Atlantic Provinces similar
direction.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Show More

Related Articles

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button
Close