Immigration, Refugees and Citizenship Canada (IRCC) has announced that, effective immediately, the four-year cumulative duration rule will no longer apply to temporary foreign workers in Canada. This rule, also known as the “four-in, four-out” rule, meant that certain foreign workers became ineligible to work in Canada for four years upon completion of four years of work in Canada.
The rule was originally put in place by the previous Conservative government in April, 2011. At that time, the government stated that the provision was implemented primarily to prevent situations in which workers remain in Canada for such a prolonged period that they begin to lose ties with their country of origin without gaining permanent residence in Canada.
However, the rule soon became controversial, affecting not just workers themselves but also families, employers, and communities who had established economic and social ties. In many cases, foreign workers were unable to become eligible to pursue permanent residence, effectively meaning that they would have to cease working upon completion of four years of work and leave the country.
On December 13, 2016, IRCC, together with the Ministry of Employment, Workforce Development, stated that it was immediately ending the four-in, four-out provision ‘in order to prevent unnecessary hardship and instability for both workers and employers.’
The statement added, ‘for those temporary foreign workers who do not currently have access, the government is committed to further developing pathways to permanent residency so that eligible applicants are able to more fully contribute to Canadian society. Work on this issue continues.’
“In many ways, the four-year rule put a great deal of uncertainty and instability on both temporary workers and employers. We had the sense that it was an unnecessary burden on applicants and employers, and also on officers who process applications,” said Immigration Minister, John McCallum.
The four-year rule did not apply to all foreign workers in Canada. Exemptions included workers in managerial (National Occupational Classification 0) and professional (NOC A) positions, workers in Canada under NAFTA, and workers with a provincial nomination certificate.
In most cases, Canadian employers wishing to hire a foreign worker must first receive government approval before the hiring can take place. This comes in the form of a Labour Market Impact Assessment (LMIA). In order to receive a positive LMIA, it must be determined that the hiring of a foreign worker will have a positive or neutral effect on the Canadian labour market.
For employers applying for a LMIA, the government will maintain the cap on the proportion of low-wage temporary foreign workers that can be employed at a given worksite at 20 percent for employers who accessed the TFWP prior to June 20, 2014, and at 10 percent for new users of the program after that date. The exemption on the cap for seasonal industries seeking temporary foreign workers for up to 180 days during the 2017 calendar year will be extended until December 31, 2017.
Whether a position is considered low wage or high wage is determined by the median wage in a given province or territory. For example, the threshold in Ontario is set at $22 per hour.
The government’s statement strongly alluded to further changes to the Temporary Foreign Worker Program (TFWP), alerting employers that it plans to bring in a provision that would ensure under-represented groups in the Canadian workforce have first access to job opportunities. These groups include youth, persons with disabilities, Indigenous people, and newcomers to Canada. Employers will be advised when these changes are to come into effect.
The swift action taken by the government is in line with recommendations made by the Standing Committee on Human Resources, Skills and Social Development and Status of Persons with Disabilities, which undertook a study of the program. The Committee began its review of the TFWP in May, 2016 and tabled its report in September.
The government plans on tabling a full response to the Committee’s recommendations in early 2017.
“When people lay down roots, and when people are living here permanently or having a realistic chance of doing so, that benefits the Canadian economy and industry, not to mention communities and family members that require stability,” says Attorney David Cohen.
“The original policy, brought in in 2011, was misguided. In many cases, it placed workers and families in peril by handing them a post-dated notice to leave. For companies, the revolving door system meant that new workers had to be trained and integrated, creating an expensive turnover and harming productivity. Communities also suffered, as churches, sports clubs, and other societies lost valuable members of their organizations.
“For the economy and the country, what we need is stability. This immediate change goes some way towards achieving that, and we can look forward to further improvements in the near future.”
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