Legal Eagles: What You Don’t Know About Business Immigration Law Will Hurt You
Foreign Affairs: More than just temporary foreign workers, this area is a potential minefield
Marzena Czarnecka is a Calgary-based business and legal affairs writer. She can be reached at legaleagles@albertaventure.com
by Marzena Czarnecka
The Topic: Alberta businesses employ more than 66,000 foreign workers and routinely send their Alberta employees to do business in foreign countries. Are they onside with the legislation that governs these standard practices? Probably not … and the penalties for being offside just got stiffer.
On the hot seat:
Evelyn Ackah, principal of Calgary’s Ackah Business Immigration Law
Wendy Danson, business immigration lawyer with Edmonton law firm McCuaig Desrochers LLP
If you’re one of the dozens of Alberta businesses that employ some of the province’s approximately 66,000 foreign temporary workers, you already know that, effective April 1, 2011, there are new rules requiring employers to be much more diligent both in their record-keeping and in their adherence to the Immigration and Refugee Protection Act and other relevant legislation. Critically, the rules are very clear that the employer is responsible for both its own compliance (or lack thereof) and that of its employees. In other words, if they tell you they renewed their work permit but don’t show it to you, it’s on your head if it turns out they didn’t do it.
In order to ensure compliance with these laws, the government may conduct random audits of records relating to foreign workers. And if you slip up and are found wanting, you’re going to be punished – severely. First, you’ll be hit operationally by being barred from hiring any more temporary foreign workers for two years. Second, your reputation will take a beating, because your business name will be published on the Citizenship and Immigration Canada website, effectively branding you as a “bad” employer.
You knew all that, right? Just like you know exactly how many foreign workers – temporary and less so – your organization employs at any given time and the status (and location – where the heck are they?) of their work permits and related documents? How about the number of Alberta employees currently crossing borders on company business to the U.S., Brazil and India, never mind that obscure republic (whose named ends with “stan” and is located somewhere in the Caucasus region), where you’ve just done a joint venture? You’ve ensured they’re squared with the immigration authorities in the countries in which they’re working, right? And of course, you’re totally on top of the process that will keep your hotshot new research officer from San Diego in the country and with your company when his temporary work permit expires? If you’ve got all that knowledge at your fingertips, well, congratulations. You’re a rarity among Alberta employers, most of which are eager to participate in the global labour market but rarely understand the legal implications of what that participation entails.
Ironically, employers most often run into trouble when hiring from the U.S. When they’re looking for people out of Brazil, India or the Philippines, most employers realize they need to tread carefully and stay onside with the appropriate immigration regulations and requirements. When it comes to the U.S., though, they often forget that our neighbour to the south is indeed (technically, at least) a foreign country. “It doesn’t matter how sophisticated and educated employers are – they think the border between the U.S. and Canada is very simple to get across,” says Wendy Danson, an Edmonton business immigration lawyer. Danson frequently fields inquiries from clients who have “successfully” headhunted an amazing CEO or CFO. She’s got great experience, amazing talent and stellar references. They’ve hired her, she’s starting on June 1 and, oh, by the way, she’s from Colorado. “Do we need to worry about anything with immigration?”
Um, yeah, you do. “If I’m lucky, they haven’t signed any contract yet,” says Danson. If that’s the case, she’ll work with them to draft a contract in which the job offer is contingent upon the individual getting a work permit. Because if you’ve signed a contract, and your hotshot doesn’t get the work permit in time (or at all), you’ll be stuck paying her for not working for you as she hangs out in Colorado.
And no, the triad of Citizenship and Immigration Canada, Human Resources and Skills Development Canada and the Canada Border Services Agency won’t give you a permit just because you ask for one. It’s not unduly onerous to get one, especially if you’re looking at a professional with a university degree and she happens to be one of the 60 professionals specified by NAFTA. (A CEO, incidentally, isn’t.) But it’s not automatic, and it may involve getting a labour market opinion.
Those in the know don’t call it the dreaded labour market opinion (LMO) for nothing. “I don’t like it. Employers don’t like it. It’s a large part of what I do, but it’s a real fussy process,” says Danson. ” It’s not something to leave to the last minute, either, and Danson recommends giving yourself at least three months for it and more if you can manage it. It’s valid only for four years (pre-April 1, it was seven) and it becomes inapplicable as soon as your employee’s job role changes, so don’t promote or shuffle her between departments too quickly.
It’s a fussy process, but a doable one. More to the point, it’s what business immigration lawyers do and, in most instances, do successfully. So, you’ve done it, and you’ve gotten your hotshot from Colorado on a work permit. And she is indeed as advertised. Better. You love her. Well, between the expiry date on the LMO and its other restrictions, the clock is ticking even before her probationary period expires. “If you want to keep that hotshot, start thinking about permanency now,” counsels Evelyn Ackah, a Calgary business immigration lawyer. In other words, it’s best to get the ball rolling on helping the employee obtain a permanent resident visa, which would give her the permanent right to live and work in Canada and entitle her to seek Canadian citizenship should she so choose.
Yup, it’s a lot of work. You’re willing to go through it for your CEO but, in all honesty, a little less so for the rank and file. And you’ve just had this amazing offer from an employment agency that promises to get you any type of foreign worker from abroad you need. They’ll get the worker, the permits, the LMO, everything, for a fee that’s a fraction of the cost than, say, a business immigration lawyer just billed you for the process. Beware. You may be paying a small fee, but the agency’s making its money by charging the worker a huge one. “This is illegal,” says Danson. “It is illegal for the labour broker to charge a temporary foreign worker a fee.” And if you participate in the process, you’re liable under Canadian law. “I didn’t know” isn’t an excuse.
Speaking of which, you do know that there are immigration issues involved when your Alberta employees cross borders? “It sounds simple, but when you are a large company with a variety of international aspects, you don’t always know who’s getting on a plane, to where and why,” says Ackah. Impetuous business travellers hopping a plane to Chicago, Dubai or Auckland may be challenged at borders. In fact, says Ackah, they “more and more often are.”
Too often, they’re sent packing without documentation of any sort to present to the immigration authorities. “Too many companies just send their people out with nothing but a business card,” says Ackah. “That can leave a bad impression that may be hard to overcome.” She suggests employers provide their frequent business fliers with, at the very least, a letter. Better still, they should have a process in place to deal with border trouble.
That may mean arranging for a crash business immigration law lesson with a lawyer from another jurisdiction. “As soon as they leave the country, employees are no longer under Canadian immigration law,” says Danson. Thanks to NAFTA, most Canadian lawyers should be able to effectively guide you through Canada-U.S. border troubles. But if you’re sending your people to South America, Africa or Asia, and especially to countries with a reputation for difficult border crossings, ask your Canadian lawyer to source some local advice. Preferably before they run into serious trouble.
Next month
Grant Zawalsky from Calgary’s Burnet, Duckworth & Palmer LLP, Derrick Arch, an Alberta-based securities partner with Davis LLP, and Macleod Dixon LLP’s Don Tse discuss the tricky business of securities regulation.
Marzena Czarnecka is a Calgary-based freelance writer. Write her at mac@falstaffproductions.ca.
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