Canada relies heavily on temporary foreign workers and permanent residents to support the economy. Foreign workers have specifically supported Canada’s labour market in a wide range of areas including, but not limited to, sectors such as food, agriculture, information systems and technology.
COVID-19 has created several challenges for not only temporary foreign workers and their employers, but also on immigration programs and applications, cross-border travel and the employment of foreign workers.
As such, the following reviews the impact COVID-19 has had on temporary foreign workers and the changes that have been implemented to stabilize and achieve a robust economy in Canada.
The issue is important as it has a direct impact on the job security of thousands of foreign workers and has the potential to lead to increased terminations of employment, wrongful dismissal, and related severance obligations.
Temporary Foreign Workers 2020 Breakdown at a Glance
There are various programs for temporary entry to Canada, including the Temporary Foreign Worker Program (“TFWP”) and the International Mobility Program (“IMP”)
The TFWP permits foreign nationals to legally enter and work in Canada, usually for the purposes of addressing a gap in the labour market, where a Canadian or permanent resident cannot be found. Specifically, Canadian employers use this program to hire foreign workers if they cannot find a qualified Canadian citizen or permanent resident to complete or be trained to complete the job. The program is generally available to most foreign nationals given that applications may be made for both full-time high-skilled workers as well as low-skilled seasonal workers.
Between January and April 2020, Canada issued approximately 33,000 work permits under the TFWP. Most workers came from Mexico, Jamaica, India, Guatemala, and the Philippines. Of the 33,000 work permits issued, approximately 66% were issued to those working in the agricultural and food sectors.
Canadian employers may also hire foreign nationals through the IMP. The IMP is generally aimed at supporting the transfer of high-skilled workers to support growth industries in Canada. This includes a range of sub-programs such as intra-corporate transferees, francophone mobility, Global Talent Stream, and various mobility categories under relevant global trade agreements for workers that support the rapidly expanding high-tech sector, where there is a chronic shortage of skills.
27,000 work permits were issued under the IMP during the first four months of 2020. The major source countries for IMP were India, France, China, the United States, and the United Kingdom. However, when compared to January through April 2019, the total work permits issued under the IMP has fallen by 16%.
The IMP also includes the Post-Graduate Work Permit Program (“PGWPP”), which is available to international students who have successfully completed a course of study at an accredited post-secondary institution in Canada. This program provides an opportunity for foreign students to gain Canadian work experience which is, in most cases, critical for securing an Invitation to Apply for permanent residency.
COVID-19 and Temporary Foreign Workers
COVID-19 has had a dramatic impact on the number of foreign nationals working in Canada on a temporary basis.
The following two factors are the primary reasons for this issue:
- the current severe restrictions on travel to Canada, and
- the dramatic downturn in the labour market.
With respect to travel, there are limited exemptions allowing foreign nationals to enter Canada for the purposes of work. Accordingly, foreign nationals who require or hold a work permit and are currently outside of Canada are only exempt from the travel restrictions if their mandate in Canada is essential and non-discretionary.
Determining whether entry of a foreign national and therefore the mandate in Canada will be for essential and non-discretionary purposes will generally require demonstrating that there is an urgent need for the foreign national in Canada and that the particular individual would be fulfilling an essential job during the pandemic. For guidance, the federal and provincial governments have published lists of sectors deemed to be essential as well as the relevant and non-discretionary roles to be filled.
Furthermore, due to the travel restrictions, foreign nationals requiring a work permit have not been permitted to depart from any country, with the exception of the United States, without a valid work permit or letter of introduction, which may also be known as a Port of Entry (“POE”) letter. This is because foreign nationals are generally no longer eligible to apply for a work permit at the port of entry unless they are arriving from the United States. Therefore, most work permit applications are now made online, and temporary foreign workers must wait for approval of their work permit application prior to travelling to Canada.
Temporary foreign workers who enter Canada are expected to self-isolate for fourteen (14) days upon arrival and must have a quarantine plan in place prior to entry. Prior to arrival, the temporary foreign worker must arrange, among other things, where they will stay, how they will travel from the port of entry to their place of self-isolation, and how they will obtain essential supplies such as groceries, household items, and medication.
Employment and Social Development Canada has also imposed additional restrictions in relation to securing a Labour Market Impact Assessment. This is premised on a recognition of the dramatic changes to the labour market and an insistence that efforts to recruit Canadians or permanent residents be significantly boosted before approving a foreign worker to take on a position in Canada.
Measures to Mitigate the Impact of COVID-19 on Foreign Workers
The Government of Canada has responded with temporary measures aimed at mitigating against some of the negative impacts of COVID-19 on the employment of foreign workers.
Temporary Measure to Facilitate Labour Mobility
Immigration, Refugees and Citizenship Canada (“IRCC”) has invoked a temporary public policy in relation to temporary foreign workers in Canada changing employment. This policy grants temporary foreign workers who have been terminated or wish to change employers the ability to secure alternative employment more expediently. Accordingly, this new measure provides foreign workers with the ability to commence a new job in Canada while their work permit application is processing given that they:
- previously secured a job offer under either the TFWP or IMP streams, and
- are required to obtain a new employer-specific work permit. Under this temporary policy, foreign nationals are also exempt from the biometrics requirement.
Flexibility to Maintain Status in Canada
IRCC is further providing foreign nationals greater flexibility to restore their status and begin employment in Canada sooner than what would otherwise be the case.
Temporary Waiver of Biometrics Requirements
IRCC is proceeding with applications for work permits without the requirement for completion of biometrics. This is a temporary measure aimed at facilitating the processing of applications while Service Canada offices that take biometrics are closed and/or otherwise disrupted.
COVID-19 and Permanent Residency
COVID-19 has also had a significant impact on Canada’s permanent residency program. This includes limitations to both the numbers of people invited for permanent residency and the categories under which invitations have been provided.
Specifically, a pattern has formed whereby Invitations to Apply (“ITA”) for permanent residency have, for the most part, been limited to Canadian Experience Class (“CEC”).
Since March 2020, the majority of draws that have taken place are limited to individuals within the CEC and Provincial Nominee Program (“PNP”) and have excluded applicants under the Federal Skilled Worker (“FSW”) and Federal Skilled Trades (“FST”) classes.
We believe that these limitations can be explained by the travel restrictions since these groups of foreign nationals are likely already in Canada and therefore would not require travel to Canada.
Given that invitations have largely been limited to the CEC, we have seen a drastic decrease in the overall cut-off Comprehensive Ranking System (“CRS”) score required to secure an Invitation to Apply (“ITA”) for permanent residency. For example, since March 2020, we have seen many draws with the lowest cut-off score in the low to mid-400-range, which is in contrast to the draws we were seeing pre-pandemic, with a cut-off score in the high 400s.
We expect that it will continue to be difficult for foreign nationals outside of Canada to obtain permanent residency given that exemptions to travel restriction exemptions are not currently available, and that we also expect draws to continue to be limited to applicants under the CEC and PNP classes. Accordingly, we expect the number of permanent residents accepted this year to decrease, when compared to previous years, as a result of the pandemic.
If you have any questions relating to COVID-19 and hiring temporary foreign workers, or its impact on the Canadian labour market, or if you are a foreign worker with questions regarding your status with immigration or other issues such as wrongful dismissal, severance, or discrimination at work, please contact Toronto employment and immigration lawyers Sultan Lawyers at 416-214-5111 or here.
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