Filipiniana News – September 2010
RHYME & REASON
Recent changes introduced to Canada’s
Immigration and Refugee Protection Regulations relating to temporary foreign
workers (TFW) have been raising a lot of fear and confusion within the
caregiver community.
Foremost of these fears is the persistent
rumor that “live-in caregivers are not anymore eligible to apply for permanent
residence in Canada”. Another is the
speculation that live-in caregivers will be deported to their home country if
at the end of four years, their permanent residence applications under the
live-in caregiver class have not been granted.
What really is the current state of the law
as far as LCP participants are concerned?
What are these recent changes which have brought much confusion to many?
Since I have already summarized the
administrative and regulatory changes to the LCP in my April 2010 column, I am
simply summarizing below the recent regulatory changes to the temporary foreign
worker program, and the relevant clarifications received from CIC.
In August 2010, CIC announced and published
the revised Immigration and Refugee Protection Regulations which affect TFWs in
general and are set to take effect on 1 April 2011. The CIC website summarized the changes as
follows:
- a more rigorous assessment of the genuineness of the
job offer;
- a two-year prohibition from hiring temporary foreign
workers for employers who fail to meet their commitments to workers with
respect to wages, working conditions and occupation; and
- a limit on the length of time a temporary foreign
worker may work in Canada before returning home.
The new
regulations will screen prospective employers more strictly in that those who
were found to have violated workers’ rights or failed to meet their employer
obligations in the past will be placed on a “blacklist” and will not be allowed
to hire or sponsor any foreign worker for a period of two years.
The most controversial part of the new
regulations however is the new four-year cap on the TFWs’ temporary employment
in Canada. At the end of four years, the
TFW will have to leave Canada and can only reapply for a new work permit after
another four years have passed. It must
be noted that this limitation stated in Section 200(3)(g) of the new
regulations also provides for a couple of exemptions if:
(ii) the foreign national intends
to perform work that would create or maintain significant social, cultural or
economic benefits or opportunities for Canadian citizens or permanent
residents, or
(iii) the foreign national intends
to perform work pursuant to an international agreement between Canada and one
or more countries, including an agreement concerning seasonal agricultural
workers;
The above exemptions however, do not
expressly specify LCP participants as among those meant to be included in their
scope. Hence, the persistent fear that
after four years of working on LCP or open work permits, LCP participants may
not anymore be allowed to stay in Canada to await the processing of their
permanent residence applications or worse, that their permanent residence
applications will be refused once they are forced to leave Canada at the end of
their maximum four-year stay as TFWs.
After sending an inquiry to CIC to clarify
this matter, we received the following response:
Operational guidelines, that provide
more specific information including for all exemptions to R200(3)(g), are
being developed and will be available to potential participants prior the regulations
coming into force April 1, 2011. Consideration for exemption is being given
to various categories of temporary foreign workers, including live-in caregivers.
Preliminary thinking is that it is not expected that R200(3)(g) would affect
participants in the live-in caregiver program who have applied for permanent
residence. We are developing guidelines to identify exemptions to the
R200(3)(g) requirement, and anticipate that applicants for permanent residence,
or those who have applied for permanent residence and received approval in
principle, will be excluded. That would mean that once a live-in caregiver has
two years of work experience and applied for permanent residence/received
approval in principle, the four-year maximum would not be applicable.
The live-in caregiver program is
designed to allow its participants to apply for permanent residence well before
they would reach the maximum four years of non-permanent status. As
you know, the Government of Canada has recently
made it easier for live-in caregivers to become permanent
residents by allowing up to four years to accumulate two years or 3900
hours of work experience. The regulatory change to the
Temporary Foreign Worker Program R200(3)(g) is
not intended to diminish the changes made to the Live-in Caregiver Program in
April 2010.
The above statements were confirmed in the
following further clarification from CIC policy officials:
There are two exemptions to the four-year cumulative duration provision,
as identified in S200(3)(g) of the amended regulations: for work that would
create or maintain significant social, cultural or economic benefits or
opportunities for Canadian citizens or permanent residents, or for work
pursuant to an international agreement between Canada and one or more
countries. More specific information will be provided in
the form of operational guidelines. These are being developed and will be
available prior to the regulations coming into force April 1, 2011.
With
regard to those temporary foreign workers who have applied for permanent
residence, the
intent of the regulatory amendments is not to require applicants for permanent
residency to leave the country. It is likely that a temporary foreign worker,
whether employed as a live-in caregiver or in another capacity, who has applied
for permanent residency will qualify for an exemption pursuant to section
200(3)(g) of the regulations, until such time as a decision on the application
for permanent residency has been made. Full details will be available in the
operational guidelines referred to above.
These responses should serve to at least
assuage fears that LCP participants will be negatively affected by the recent
regulatory changes affecting temporary foreign workers in general. Aside from the need for continuing vigilance
to ensure that the operational guidelines will truly benefit LCP participants,
we also need to keep in mind that these changes are only as good as their
proper and fair implementation.
Therefore, the campaign towards the full
realization of substantive reforms on behalf of long disadvantaged caregivers
needs to continue. For now, we should
preserve the gains achieved so far not only by continued vigilance but also by
arming ourselves with the proper information instead of relying on rumors and
speculation.
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