Episode 2: Top 5 Ways to Stay in Canada if faced with the TFWP Cap of April 1, 2015

[UPDATE March 31, 2017: I am delighted to report that the Temporary Foreign Worker Cap was  removed by the Liberal government on December 13, 2016 : http://www.cic.gc.ca/english/resources/tools/temp/work/cumulative.asp]

Although the temporary foreign worker program cap was removed, many of the strategies set out in this blog continue to be valid considerations if an employer is unable to secure a LMIA in a number of circumstances.

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Temporary Foreign Worker Program – 4 Year Cap is Looming

On April 1, 2011, the government imposed a four year cap on all Temporary Foreign Workers working in Canada on LMIA (LMO) based work permits in trade or technical level positions and lower. Four years seemed like an eternity away for employers and their newly hired TFWs.

When the cap was introduced, the Temporary Foreign Worker Program (TFWP) was heavily supported by the Conservative government in Canada. Despite enacting added measures to catch employers abusing the program, the process for hiring and obtaining work authorization for foreign nationals was relatively straightforward. Those days are gone…..long gone! In fact, the TFWP is under full attack from this same Conservative government as they quickly take steps to distance themselves from any responsibility for the perceived abuses within the program. In June of this year, the TFWP was overhauled and significant effort is being made by the Conservatives government to reduce the total number of foreign workers in Canada in preparation for an attempt at re-election in 2015.

It is now late November 2014 and many temporary foreign workers are struggling with the reality that their time in Canada is very quickly drawing to a close. Canadians should not plan on travelling outside of Canada during the month of April 2015 because the airlines will be completely full with foreign workers who have capped out and are returning home. In many cases, these foreign workers will have been in Canada with their families for much longer than 4 years. Facing the reality of having to start over again in their home countries, our law firm receives many calls from employers and individuals desperate for a solution that will allow them to remain in Canada.

Despite the bleak horizon for most TFWs and the companies that employ them, some options do exist. Although the specific circumstances of each individual will often dictate the options that may be available, and corresponding chances of success, our firm has identified the top 5 strategies for helping foreign workers remain in Canada.

1. Apply for PR status immediately and obtain a bridging work permit. In many cases, options may be available to apply for PR status in Canada. However, individuals must act immediately to book an english language assessment and complete the PR application process before January 1, 2015 when the new Express Entry processes goes live. If the foreign national is able to obtain a positive selection decision on the PR application from CIC they may be able to obtain na open bridging work permit to allow them to continue working in Canada until a decision has been made on the PR application.
2. Employer files for a permanent LMIA to support the TFWs Express Entry selection. Under the Express Entry program, candidates with LMIA supported job offers will quickly be given Invitations to Apply (ITA) for PR status in Canada. There is no known restrictions on employers obtaining a “permanent” LMIA to support the candidacy of an existing employee who will be capping out on April 1, 2014. In fact, even if the employee ha to return home because the work permit can not be extended, the Express Entry selection process will continue forward regardless of them being in Canada.
3. Transition from an LMIA based work permit to an LMIA exempt work permit. The four year cap only applies to TFWs working in Canada pursuant to an LMIA based work permit at Skill Levels B,C, or D. Although the LMIA exempt work permit options may be limited, it is critical that all available avenues be explored. After all, the consequence of doing nothing is to simply pack your bags and go home when the current work permit expires. Some possible categories include, International Experience Class (working holiday), NAFTA, GATS, Significant Benefit, and the Spousal Program). If a TFW is accompanied to Canada by a spouse, the accompanying spouse may seek to obtain a work permit. If the position is at a skilled level (Skill Level B, A, or 0), a spouse may be eligible for an open work permit. As such, the accompanying spouse becomes the principal work permit holder and the spouse capping out could switch to an open spousal work permit to continue working.
4. Seek admission to a Canadian college or University and become a foreign student. Some employers may be willing to support a valued TFW in returning to school to obtain a diploma or degree. Alternatively, a TFW may choose to apply for post secondary studies independently. If enrolled in a program of studies (other than ESL), and other eligibility requirements are met, foreign students can work up to 20 hrs per week off campus during the regular school term and full time during the regular scheduled breaks without a work permit. In fact, this is an open work authorization, so there is generally few restrictions on the type of employment pursued. Companies would be free to employ a current TFW in any number of ways on a part-time basis while they are going to school. Upon completion of studies, a post graduate work permit may be available which can lead to a number of options for PR status in Canada.’

This scenario can also be played out if the TFW has an accompanying spouse. If the accompanying spouse becomes a foreign student in a post secondary institution (not ESL), the spouse currently working on the LMIA based work permit could apply to transition to an open work permit through the spousal employment program similar to option #3 above. This open work permit would similarly allow the TFW to work in virtually any occupation including their present position if so desired

5. Choose to file an Humanitarian and Compassionate application for PR status in Canada. When no other options appear to be available, some individuals may choose to apply for PR status under the H&C category. This application is designed to allow foreign nationals and their families to apply for PR status in Canada when they do not otherwise qualify under any other category. This option is truly an option of last resort and does not have a high rate of success. However, families who have lived in Canada for many years and have Canadian born children may have sufficiently established themselves in Canada to warrant a positive H&C decision. Establishment alone would likely be insufficient; however, it is one factor of many that could be used to support an H&C application.

Because of the complexity of these strategies, we encourage you to contact our office immediately to have us assist you in determining if one of these strategies may be suitable for you. With less than 4 months remaining before many foreign workers reach the 4 year cap, the time to act is now. Call our office to set up a consult.

Read the Transcript

You can download a complete, word-for-word transcript of this episode, [spoiler]Welcome to the Canadian Immigration Podcast episode number two. My name is Mark Holthe, I’m a Canadian immigration lawyer based out of the beautiful province of Alberta, Canada. I’m an ex-immigration officer with Citizenship and Immigration Canada, having worked on the Canada-US border. I’m currently serving as an executive member of the national immigration law section of the Canadian bar association, which is an awfully long title. And I also served as– and I’m serving currently as the immediate past chair of the Alberta South immigration section of the CBA.

I’m a frequent speaker and educator on Canadian immigration law and policy, and I regularly chair and speak at seminars and workshops to other immigration lawyers, immigration consultants, and human resource professionals across the country. The topics relate to the temporary foreign worker program and often relate to the transitioning of foreign workers to permanent resident status in Canada. This podcast is all about Canadian immigration law, policy, and practice.

At times I would cover some of the important changes within the Canadian immigration world. I’ll also respond to questions that come to me through our ‘Ask an immigration question’ portal on our website. Now if you would like to send a question to me, go to our website www.ht-llp.com, and click on the side panel that’s entitled ‘Ask an immigration question.’ You can leave a voice message for me digitally and I will respond to that question that you’ve raised via our podcast.

Now I’ll try to do it as frequently as the questions come in, I have found that generally people tend to ask the same types of questions, so I will group them together and then try to respond to everyone. In today’s podcast, I’m going to cover one of the most common questions that I have been getting lately. Now back in April the 1st of 2011, the temporary foreign worker program instituted a four year cap. Now that cap applys to any worker working at a skill level B, C or D.

And essentially what that means is, skill level B category positions include supervisors of retail trade, they also include the various trades such as welding and carpentry etcetera, and all of the positions that would rank below those. So trade in technical level positions as well as positions that do not require any real formal post secondary education to be able to work on them, in other words ones where you can apply for the position with no experience, or simply obtain on the job experience. Now the issue that we are having is April the 1st 2011 they made the announcement. And when it was made four years seemed a long time into the future. However with us being now November the 27th 2014, the April 1st 2015 deadline is looming.

Now if you are a Canadian citizen, I would highly recommend that you don’t think about travelling outside the country during the month of April, because there’s going to be a large number of foreign workers who will be capping out and having to return back home. So the common scenario that I have and the question that I often face is this, I’m a food service supervisor, I have been working in Canada since 2008, 2009, and come April the 1st 2015 I will reach my four year cap. What can I do to stay in Canada longer? Now generally speaking, each individual is going to have certain aspects about their history, their background that may present different options.

And all the options that I present here are general in nature, and are intended to cover off some of the possibilities that might be available. So take what I’m saying here with that in mind, and here is my top five options that you can pursue to stay in Canada if you are in a position where you are capping out.

So the first obviously is to seek for an opportunity to apply for permanent residence through one of the economic class application — one of the economic class processes. Typically that would be the provincial nominees, the federal skilled worker program, or the Canada experience class program. Now as we know the new express entry process will be kicking in sometime at the beginning of January 2015.

So you have very little time to act now, but the first key is to look to pursue any possible permanent resident avenues that you may have. When you are able to secure that permanent residence, and you receive an acknowledgement from the government that your application has been accepted for processing, and you receive that confirmation from the government, you can then take that confirmation to apply for a bridging work permit when your current work permit is nearing expiry, in fact within four months of expiry. You can then apply for bridging work permit to extend your stay.

And this is good, because your company that you are working with, it takes you outside of the four year cap. Once you are on that work permit then you are okay to stay until your permanent resident application is either approved, whereby you become a permanent resident, or refused and at that time then you would have to either explore other options or return home. So that’s the first, apply for permanent residence, and then obtain a bridging work permit to bridge that gap. One thing I will point out is that the bridging work permit has to be applied for, before your existing work permit expires. If it expires and you are trying to restore, you cannot do that through the bridging work permit process.

Okay, option two, failing that then what we are commonly seeing if you are in a skill level B position, your employer may wish to consider applying for a permanent LMIA, a labor market impact assessment to support your express entry application. When you apply to express an interest in immigrating to Canada through this new express entry program, you will often require, and in most cases require an LMIA to support that. If you are in the process of capping out and you are running out of time, it may be possible for you to submit an application that is supported by your employer through the permanent LMIA process. This option will obviously only arrive in the new year when the new express entry category is introduced.

But it bears the prospect of obtaining permanent residence in less than six months. And if you are able to enter into that category, it’s possible that even though your permit may expire and you may have to depart Canada, we don’t know all the rules, but it may be possible to have that application continue forward notwithstanding the fact you are not currently in the country. So it keeps a foot in the door to allow you to return once that permanent residence application has run its course. However, we are still waiting to find further information, but that’s my option two, and these are in order of preference.

The third option is starting to think a little bit outside the box. So if you come from a country possibly where Canada has other international agreements, you may want to consider switching from a labor market impact assessment based work permit to an LMIA exempt work permit, such as NAFTA OR GATT. There are other categories under this significant benefit provisions, or even a spousal work permit. So if you are in Canada and you are here with your foreign national spouse, it’s possible that your spouse may better qualify for another permit if you have not yet obtained one. And if your spouse works in an occupation that’s considered to be skilled, then you can obtain an open work permit to continue working in your current position. So that’s another option to remain in Canada.

In addition to that, the fourth option that I will explain to you is if your spouse chooses to go to school and obtain a post secondary educational program, a diploma, a degree granting institution, but one that is designated by the government as an accredited and accepted institution for the purposes of Citizenship and Immigration Canada, as long it’s not an ESL course, your spouse could potentially go to school or yourself even, and transition from a foreign worker to a foreign student. Now obviously most people that are here in Canada now, and if you are working in a more entry level position, then you’re probably not going to have a lot resources saved up to be able to afford the added tuition. However, this is an option if there’s a way that you can do it.

Now if your spouse goes to school, you are able to obtain an open work permit by you accompanying your spouse. However, if you yourself decide to go school, you can work off campus up to 20 hours during the regular school term, and full time during the regular breaks. So that’s another alternative that’s kind of outside the box when we are thinking about possibilities. If you are able to go school and go through that process, then many more options open up for you afterwards including after your graduation you can obtain a post grad work permit to allow you to then work for a company in a skilled position. And ultimately apply for permanent residence through one of the available permanent residence programs. If these options all fail, really it’s going to be tough for you to remain in Canada.

However, there is an application called an H and C application, or humanitarian and compassionate application, that may be available for some individuals. Now you have to show that you are pretty well established in Canada, that all of your ties and all of your life, maybe you’ve even had a few children born here in Canada that are Canadian citizens. All of those go to show that you have some form of establishment in Canada. And although that — those factors are not the only factors they look at, they are important. Further you would also want to show the hardship that you would go through if you had to return home and apply for permanent residence. So an H and C application is kind of like the last stage effort to obtain permanent residence in Canada.

One of the drawbacks is that even though you filed an H and C application it is entirely possible that if your work permit expires you will have to go home anyways. So sometimes we’ll even consider using a spouse as the H and C applicant, either or it doesn’t really matter, but the reality is you are just trying to show that there are some justifiable reasons why it would be unfair for you to have to go home. Or you do not qualify for any available permanent residence program, so the H and C is a way to allow you to show your humanitarian — well, basically the fact that you require humanitarian and a compassionate consideration to remain in Canada. So those are the top five that come to mind generally speaking and obviously each individual is different.

If you have any specific questions that have not been answered in this particular podcast, please go to my website www.ht-llp.com and just click on that link that indicates ‘Ask an immigration question,’ and we’ll be happy to answer it. Also if you would like to book a consult for us to examine your particular circumstances in more detail please do so as well and follow the links on our website. This concludes our podcast episode number two, and we look forward to receiving your questions and discussing more important topics as they relate to Canadian immigration law, policy, and practice. This is Mark Holthe, Canadian immigration lawyer, and we look forward to hearing from you soon.
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