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

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.     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.     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.     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.     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.     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.

Mark Holthe, Partner, Holthe Tilleman LLP

[email protected]

1-844-485-8204

Mark is an x-immigration officer with Citizenship and Immigration Canada having worked on the Canada/US border. He is currently serving as an Executive Member of the National Immigration Law Section of the Canadian Bar Association and Immediate Past-Chair of the Alberta South Immigration Section of the CBA. He is a frequent speaker and educator on Canadian Immigration Law and Policy and regularly offers seminars and workshops to lawyers, consultants, and human resource personal related to the Temporary Foreign Worker Program and the transitioning of foreign workers to permanent resident status in Canada.